[Federal Register Volume 87, Number 196 (Wednesday, October 12, 2022)]
[Proposed Rules]
[Pages 61555-61557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-22110]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2017-0090; FRL-10222-01-R3]
Air Plan Approval; Delaware; Removal of Excess Emissions
Provisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve certain portions of a state implementation plan (SIP) revision
submitted by the State of Delaware, through the Delaware Department of
Natural Resources and Environmental Control (DNREC), on November 22,
2016. The revision was submitted by Delaware in response to a national
finding of substantial inadequacy and SIP call published on June 12,
2015, which included certain provisions in the Delaware SIP related to
excess emissions during startup, shutdown, and malfunction (SSM)
events. EPA is proposing to approve two specific provisions of the
submitted SIP revision and proposing to determine that such SIP
revision corrects some of the deficiencies in Delaware's SIP identified
in the June 12, 2015, SIP call. EPA plans to act on the remainder of
the SIP revision in a separate action or actions.
DATES: Written comments must be received on or before November 14,
2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2017-0090 at www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov, follow
the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be confidential business information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the FOR FURTHER INFORMATION CONTACT section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Mallory Moser, Planning &
Implementation Branch (3AD30), Air & Radiation Division, U.S.
Environmental Protection Agency, Region III, Four Penn Center, 1600
John F. Kennedy Boulevard, Philadelphia, Pennsylvania 19103. The
telephone number is (215) 814-2030. Ms. Moser can also be reached via
electronic mail at [email protected].
[[Page 61556]]
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'' or
``our'' is used, it refers to EPA.
I. Background
On February 22, 2013, the EPA issued a Federal Register notice of
proposed rulemaking outlining EPA's policy at the time with respect to
SIP provisions related to periods of SSM. EPA analyzed specific SSM SIP
provisions and explained how each one either did or did not comply with
the Clean Air Act (CAA) with regard to excess emission events.\1\ For
each SIP provision that EPA determined to be inconsistent with the CAA,
EPA proposed to find that the existing SIP provision was substantially
inadequate to meet CAA requirements and thus proposed to issue a SIP
call under CAA section 110(k)(5). On September 17, 2014, EPA issued a
document supplementing and revising what the Agency had previously
proposed on February 22, 2013, in light of a D.C. Circuit decision that
determined the CAA precludes authority of the EPA to create affirmative
defense provisions applicable to private civil suits. EPA outlined its
updated policy that affirmative defense SIP provisions are not
consistent with CAA requirements. EPA proposed in the supplemental
proposal document to apply its revised interpretation of the CAA to
specific affirmative defense SIP provisions and proposed SIP calls for
those provisions where appropriate (79 FR 55920, September 17, 2014).
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\1\ State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013).
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On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized
``State Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings
of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying
to Excess Emissions During Periods of Startup, Shutdown and
Malfunction'' (80 FR 33840, June 12, 2015), hereafter referred to as
the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action clarified,
restated, and updated EPA's interpretation that SSM exemption and
affirmative defense SIP provisions are inconsistent with CAA
requirements. The 2015 SSM SIP Action found that certain SIP provisions
in 36 states were substantially inadequate to meet CAA requirements and
issued a SIP call to those states to submit SIP revisions to address
the inadequacies. EPA established an 18-month deadline by which the
affected states had to submit such SIP revisions. States were required
to submit corrective revisions to their SIPs in response to the SIP
calls by November 22, 2016.
EPA issued a Memorandum in October 2020 (2020 Memorandum), which
stated that certain provisions governing SSM periods in SIPs could be
viewed as consistent with CAA requirements.\2\ Importantly, the 2020
Memorandum stated that it ``did not alter in any way the determinations
made in the 2015 SSM SIP Action that identified specific state SIP
provisions that were substantially inadequate to meet the requirements
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on
the SIP call issued to Delaware in 2015. The 2020 Memorandum did,
however, indicate EPA's intent at the time to review SIP calls that
were issued in the 2015 SSM SIP Action to determine whether EPA should
maintain, modify, or withdraw particular SIP calls through future
agency actions.
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\2\ October 9, 2020, memorandum ``Inclusion of Provisions
Governing Periods of Startup, Shutdown, and Malfunctions in State
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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On September 30, 2021, EPA's Deputy Administrator withdrew the 2020
Memorandum and announced EPA's return to the policy articulated in the
2015 SSM SIP Action (2021 Memorandum).\3\ As articulated in the 2021
Memorandum, SIP provisions that contain exemptions or affirmative
defense provisions are not consistent with CAA requirements and,
therefore, generally are not approvable if contained in a SIP
submission. This policy approach is intended to ensure that all
communities and populations, including overburdened communities,
receive the full health and environmental protections provided by the
CAA.\4\ The 2021 Memorandum also retracted the prior statement from the
2020 Memorandum of EPA's plans to review and potentially modify or
withdraw particular SIP calls. That statement no longer reflects EPA's
intent. EPA intends to implement the principles laid out in the 2015
SSM SIP Action as the agency takes action on SIP submissions, including
this SIP submittal provided in response to the 2015 SIP call.
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\3\ September 30, 2021, memorandum ``Withdrawal of the October
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions
in State Implementation Plans and Implementation of the Prior
Policy,'' from Janet McCabe, Deputy Administrator.
\4\ 80 FR 33985, June 12, 2015.
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With regard to the Delaware SIP, in the 2015 SSM SIP Action, EPA
determined that the following regulations were substantially inadequate
to meet CAA requirements (80 FR 33973, June 12, 2015): Title 7 of
Delaware's Administrative Code (7 DE Admin. Code) 1104 Section 1.5, 7,
DE Admin. Code 1105 Section 1.7, 7 DE Admin. Code 1108 Section 1.2, 7
DE Admin. Code 1109 Section 1.4, 7 DE Admin. Code 1114 Section 1.3, 7
DE Admin. Code 1124 Section 1.4, and 7 DE Admin. Code 1142 Section
2.3.1.6. These provisions allow for exemptions from otherwise
applicable SIP emission limitations. The rationale underlying EPA's
determination that these provisions were substantially inadequate to
meet CAA requirements, and therefore to issue a SIP call to Delaware to
remedy the provisions, is detailed in the 2015 SSM SIP Action and the
accompanying proposals.
Delaware submitted a SIP revision on November 22, 2016, in response
to the SIP call issued in the 2015 SSM SIP Action. Delaware's 2016 SIP
submission addressed all of the SIP provisions identified in the SIP
call, but this proposed action is only addressing the portion of
Delaware's submittal that pertains to 7 DE Admin. Code 1124, Section
1.4 and 7 DE Admin. Code 1142 Section 2.3.1.6. 7 DE Admin. Code 1124
regulates various coating and non-coating sources of VOCs, while 7 DE
Admin. Code 1142 controls NOX emissions from industrial
boilers and process heaters at petroleum refineries. EPA is acting on
these two provisions first because they are subject to a court ordered
deadline of February 22, 2023, whereas the remaining provisions have
court ordered deadlines of June 22, 2023, for a proposed action, and
October 20, 2023, for a final action. Delaware's 2016 SIP submission
showed that these two regulatory provisions had been removed from
Delaware's regulations, and therefore Delaware requested that EPA
remove these provisions from the Delaware SIP. Delaware's 2016
submission also notes that the deficiency highlighted in 7 DE Admin.
Code 1108 Section 1.2 was corrected by a previous SIP revision, which
was submitted to EPA on July 10, 2013.\5\ In its 2016 submission,
Delaware also requested that EPA approve revisions to the remaining
four provisions in the Delaware SIP that were highlighted in the 2015
SSM SIP Action. EPA will be acting on those revisions under a separate
action or actions.
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\5\ EPA approval of the July 10, 2013, SIP submittal on July 11,
2022. See 87 FR 41074.
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[[Page 61557]]
II. Summary of SIP Revision and EPA Analysis
EPA is proposing to approve those portions of Delaware's November
22, 2016, SIP submission addressing 7 DE Admin. Code 1124 Section 1.4
and 7 DE Admin. Code 1142 Section 2.3.1.6. Delaware's 2016 SIP
submission shows that these two provisions have been removed from
Delaware's regulations,\6\ and EPA has confirmed that these two
provisions are no longer in Delaware's regulations.\7\ Based on
Delaware's request to remove these sections from the Delaware SIP, EPA
proposes to find that Delaware's November 22, 2016, SIP revision, for 7
DE Admin. Code 1124 Section 1.4 and 7 DE Admin. Code 1142 Section
2.3.1.6 only, is consistent with CAA requirements and addresses two of
the seven deficiencies that EPA identified in the 2015 SSM SIP Action
with respect to the Delaware SIP. Delaware's 2016 SIP submission also
made small, non-substantive style changes to other sections of 7 DE
Admin. Code 1142, which EPA is proposing to approve. These changes
consisted of inserting the words ``subsection'' or ``section'' before
references to specific regulatory provisions to conform to Delaware's
regulatory style requirements. Also, on July 11, 2022, EPA published a
Final Rule which removed the SSM provisions contained in 7 DE Admin.
Code 1108, from the Delaware SIP.\8\ EPA will act on the revisions that
address the deficiencies in 7 DE Admin. Code 1104 Section 1.5, 7 DE
Admin. Code 1105 Section 1.7, 7 DE Admin. Code 1109 Section 1.4, and 7
DE Admin. Code 1114 Section 1.3 in a separate action or actions.
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\6\ See Appendix A to Delaware's November 21, 2016, SIP
submission, found in the docket for this action.
\7\ See www.regulations.delaware.gov/AdminCode/title7/1000/1100/1124.pdf and www.regulations.delaware.gov/AdminCode/title7/1000/1100/1142.pdf.
\8\ 87 FR 41074.
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III. Proposed Action
EPA is proposing to approve that portion of Delaware's November 22,
2016, SIP submission addressing 7 DE Admin. Code 1124 Section 1.4 and 7
DE Admin. Code 1142 Section 2.3.1.6. These specific provisions have
been removed from Delaware's regulations and this action is proposing
to remove these two provisions from the EPA-approved Delaware SIP. EPA
is further proposing to determine that this portion of Delaware's 2016
SIP revision corrects two of the seven deficiencies identified in the
June 12, 2015, SIP call. EPA is not reopening the 2015 SSM SIP Action
and is only taking comment on whether this SIP revision is consistent
with CAA requirements and whether it addresses the inadequacies in the
two specific Delaware SIP provisions (7 DE Admin. Code 1124 Section 1.4
and 7 DE Admin. Code 1142 Section 2.3.1.6) identified in the 2015 SSM
SIP Action.
IV. Incorporation by Reference
In this document, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with the requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference the amendments to 1124, Control of Volatile Organic Compound
Emissions, and 1142, Specific Emission Control Requirements, in section
52.420, as explained in Section II of this preamble. EPA has made, and
will continue to make, these materials generally available through
www.regulations.gov and at the EPA Region III Office (please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section of
this preamble for more information).
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this proposed action:
Accordingly, this action merely approves state law as meeting
Federal requirements and does not impose additional requirements beyond
those imposed by state law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to the requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule, which corrects some of the
deficiencies in Delaware's SIP identified in the June 12, 2015, SIP
call, does not have tribal implications as specified by Executive Order
13175 (65 FR 67249, November 9, 2000), because the SIP is not approved
to apply in Indian country located in the State, and EPA notes that it
will not impose substantial direct costs on tribal governments or
preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Volatile
organic compounds.
Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2022-22110 Filed 10-11-22; 8:45 am]
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