[Federal Register Volume 88, Number 30 (Tuesday, February 14, 2023)]
[Rules and Regulations]
[Pages 9399-9401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03099]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0090; FRL-10222-02-R3]


Air Plan Approval; Delaware; Removal of Excess Emissions 
Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
portion 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 in response to EPA's 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 approving two 
specific provisions of the submitted SIP revision and finds that such 
SIP revision corrects some of the deficiencies in Delaware's SIP 
identified in the 2015 SSM SIP Action. EPA plans to act on the 
remainder of the SIP revision in a separate action or actions.

DATES: This final rule is effective on March 16, 2023.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2017-0090. All documents in the docket are listed on 
the www.regulations.gov website. Although listed in the index, some 
information is not publicly available, e.g., confidential business 
information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available through 
www.regulations.gov, or please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section for additional availability 
information.

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].

SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,'' 
``us,'' or ``our'' is used, it means the EPA.

I. Background

    On October 12, 2022 (87 FR 61555), we proposed to approve two 
specific provisions of a SIP revision submitted by the State of 
Delaware, through DNREC, on November 22, 2016. In that proposal, we 
also proposed to determine that the portion of the SIP revision we are 
approving corrects some of the deficiencies with respect to Delaware's 
SIP that we identified in our June 12, 2015 action entitled ``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'' 
(2015 SSM SIP Action). 80 FR 33840. The reasons for our proposed 
approval and determination are stated in the proposal for this action 
and will not be restated here. 87 FR 61555 (October 12, 2022). The 
public comment period for our proposed approval and determination ended 
on November 14, 2022. One comment was received and is described below.

II. Summary of Delaware's SIP Revision Related to This Action

    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

[[Page 9400]]

addressed all the SIP provisions identified in the SIP call, but this 
action is only addressing the portion of Delaware's submittal that 
pertains to Title 7 of Delaware's Administrative Code (7 DE Admin. 
Code) 1124, Section 1.4, and 7 DE Admin. Code 1142 Section 2.3.1.6. The 
provisions of 7 DE Admin. Code 1124 regulate various coating and non-
coating sources of volatile organic compounds, while 7 DE Admin. Code 
1142 controls emissions of oxides of nitrogen (NOX) from 
industrial boilers and process heaters at petroleum refineries. Both 7 
DE Admin. Code 1124, Section 1.4 and 7 DE Admin. Code 1142, Section 
2.3.1.6, allowed for exemptions from otherwise applicable emission 
limitations during periods of startup and shutdown of equipment. 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.\1\ EPA is acting on these two provisions next because they are 
subject to a court ordered deadline of February 22, 2023, whereas the 
four 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.
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    \1\ 87 FR 41074.
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III. EPA's Response to Comments Received

    EPA received one comment which can be found in the docket. The 
commenter expressed support for this action to the extent that it 
approved Delaware's revision to correct two of the SSM exemptions 
identified in the 2015 SSM SIP Action. However, the commenter urged EPA 
to take action to address the other four SSM provisions in Delaware's 
SIP that were identified in the 2015 SSM SIP Action. EPA acknowledges 
this comment supporting the removal of the two provisions at issue in 
this action, and notes that additional actions are planned for the 
other Delaware SIP provisions cited in the 2015 SSM SIP Action.

IV. Final Action

    EPA is approving the 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. EPA has also determined this SIP 
revision partially corrects the deficiency identified in EPA's 2015 SSM 
SIP Action. EPA will address the remaining 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.

V. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of the State of 
Delaware's revised 7 DE Admin Code 1124, Control of Volatile Organic 
Compound Emissions, and 1142, Specific Emission Control Requirements, 
as described in Section II of this preamble and set forth below in the 
amendments to part 52. 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). Therefore, these materials have been approved by EPA for 
inclusion in the SIP, have been incorporated by reference by EPA into 
that plan, are fully federally enforceable under sections 110 and 113 
of the Clean Air Act (CAA) as of the effective date of the final 
rulemaking of EPA's approval, and will be incorporated by reference in 
the next update to the SIP compilation.\2\
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    \2\ 62 FR 27968 (May 22, 1997).
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VI. Statutory and Executive Order Reviews

A. General Requirements

    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 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 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 rule 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.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

[[Page 9401]]

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by April 17, 2023. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed and shall not postpone the effectiveness of such rule or 
action. This action, which corrects two of the deficiencies in 
Delaware's SIP identified in the 2015 SSM SIP Action may not be 
challenged later in proceedings to enforce its requirements (See 
section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxides, Volatile 
organic compounds.

Adam Ortiz,
Regional Administrator, Region III.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart I--Delaware

0
2. Amend Sec.  52.420, the table in paragraph (c):
0
a. Under the heading ``1124 Control of Volatile Organic Compound 
Emissions'' by revising the entry ``Section 1.0''; and
0
b. Under the heading ``1142 Specific Emission Control Requirements'' by 
revising the entries ``Section 1.0'' and ``Section 2.0''.
    The revisions read as follows:


Sec.  52.420  Identification of plan.

* * * * *
    (c) * * *

                            EPA-Approved Regulations and Statutes in the Delaware SIP
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                                                             State                                Additional
 State regulation (7 DNREC 1100)      Title/subject     effective date   EPA approval date       explanation
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                                                  * * * * * * *
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                               1124 Control of Volatile Organic Compound Emissions
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Section 1.0......................  General Provisions.       1/11/2017  February 14, 2023    Removing subsection
                                                                         [INSERT Federal      1.4 from the
                                                                         Register CITATION].  Delaware SIP.
                                                                                              Previous approval
                                                                                              August 11, 2010.
 
                                                  * * * * * * *
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                                   1142 Specific Emission Control Requirements
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Section 1.0......................  Control of NOX            1/11/2017  February 14, 2023,   Making small, non-
                                    Emissions from                       [INSERT Federal      substantive style
                                    Industrial Boilers.                  Register CITATION].  changes. Previous
                                                                                              approval August
                                                                                              11, 2010.
Section 2.0......................  Control of NOX            1/11/2017  February 14, 2023,   Removing subsection
                                    Emissions from                       [INSERT Federal      2.3.1.6 from the
                                    Industrial Boilers                   Register CITATION].  Delaware SIP and
                                    and Process                                               making small, non-
                                    Heaters at                                                substantive style
                                    Petroleum                                                 changes. Previous
                                    Refineries.                                               approval May 15,
                                                                                              2012.
 
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[FR Doc. 2023-03099 Filed 2-13-23; 8:45 am]
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