[Federal Register Volume 88, Number 118 (Wednesday, June 21, 2023)]
[Proposed Rules]
[Pages 40136-40142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13148]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2023-0206; FRL-11037-01-R3]


Air Plan Disapproval; 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 
disapprove 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 disapproval of certain portions of the 
SIP revision and proposing to determine that such SIP revision does not 
correct the remaining deficiencies in Delaware's SIP identified in the 
June 12, 2015, SIP call in accordance with the requirements for SIP 
provisions under the Clean Air Act (CAA or Act). This action addresses 
the remaining deficiencies identified in EPA's June 2015 SIP call that 
have not yet been addressed by prior EPA actions on Delaware's November 
2016 SIP submission.

DATES: Written comments must be received on or before July 21, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2023-0206 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].

SUPPLEMENTARY INFORMATION: On November 22, 2016, DNREC submitted a 
revision to its SIP 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 SSM events.

I. Background

A. EPA's 2015 SSM SIP Action

    On February 22, 2013, 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 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.\2\
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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).
    \2\ 79 FR 55920 (September 17, 2014).
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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,'' hereafter referred to as the ``2015 SSM SIP Action.'' 
\3\ 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.
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    \3\ 80 FR 33840 (June 12, 2015).
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    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.\4\ Importantly, the 2020

[[Page 40137]]

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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    \4\ 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).\5\ 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.\6\ 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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    \5\ 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.
    \6\ 80 FR 33840 at 33985.
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B. Delaware's Provisions Related to Excess Emissions

    With regard to the Delaware SIP, EPA's 2015 SSM SIP Action 
determined that the following regulations were substantially inadequate 
to meet CAA requirements: Title 7 of Delaware's Administrative Code (7 
DE Admin. Code) 1104 Section (Sec.  ) 1.5, 7 DE Admin. Code 1105 Sec.  
1.7, 7 DE Admin. Code 1108 Sec.  1.2, 7 DE Admin. Code 1109 Sec.  1.4, 
7 DE Admin. Code 1114 Sec.  1.3, 7 DE Admin. Code 1124 Sec.  1.4 and 7 
DE Admin. Code 1142 Sec.  2.3.1.6.\7\ These provisions provide a state 
official with the discretion, through the permitting process, to exempt 
sources from otherwise applicable SIP emission limitations or to set 
alternative limitations for periods of startup and shutdown. 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 2013 proposed SSM SIP Action.\8\
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    \7\ See Id. at 33973.
    \8\ See Id. and 78 FR 12460 at 12495.
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    Delaware submitted a SIP revision on November 22, 2016, in response 
to the SIP call issued in the 2015 SSM SIP Action. In addition to 
addressing deficiencies identified in 7 DE Admin. Code 1104, 1105, 1109 
and 1114, Delaware's submission noted that the deficiency highlighted 
in 7 DE Admin. Code 1108 Sec.  1.2 was corrected by a previous SIP 
revision, which was submitted to EPA on July 10, 2013. A final 
rulemaking which acted on this 2013 submission and remedied 7 DE Admin. 
Code 1108 Sec.  1.2 published in the Federal Register on July 11, 
2022.\9\ Delaware's submission also requested that EPA revise the 
Delaware SIP by removing 7 DE Admin. Code 1124 Sec.  1.4 and 7 DE 
Admin. Code 1142 Sec.  2.3.1.6 in their entirety, thereby removing 
these provisions, and their deficiencies, from the Delaware SIP. A 
final rulemaking which remedied 7 DE Admin. Code 1124 Sec.  1.4 and 7 
DE Admin. Code 1142 Sec.  2.3.1.6 published in the Federal Register on 
February 14, 2023.\10\
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    \9\ 87 FR 41074.
    \10\ 88 FR 9399.
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    Lastly, Delaware's submission requested that EPA revise the SIP to 
address the deficiencies identified in the following regulations: 7 DE 
Admin. Code 1104 Sec.  1.5, 7 DE Admin. Code 1105 Sec.  1.7, 7 DE 
Admin. Code 1109 Sec.  1.4, and 7 DE Admin. Code 1114 Sec.  1.3. 
Through this proposed rulemaking, EPA will be acting on these remaining 
provisions that were identified as deficient in the 2015 SSM SIP 
Action.

II. Summary of SIP Revision and EPA Analysis

    EPA has identified several significant concerns with Delaware's 
revisions to 7 DE Admin. Code 1104 Sec.  1.5, 7 DE Admin. Code 1105 
Sec.  1.7, 7 DE Admin. Code 1109 Sec.  1.4, and 7 DE Admin. Code 1114 
Sec.  1.3, which suggest that those parts of the 2016 SIP submission 
cannot be approved. Delaware's revisions to these sections in the SIP 
submission and EPA's corresponding analysis are summarized below. An 
underline/strikeout version of each regulation, showing the changes to 
the regulations or the changes requested to the Delaware SIP, is 
included in the docket for this rulemaking.\11\
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    \11\ The revisions can be found on pages 4-7 of the PDF, which 
corresponds to pages 1-4 of Delaware's submitted document entitled 
``Revision to Satisfy EPA's State Implementation Plan (SIP) Call 
Related to Air Emissions During Equipment Start-up and Shutdown,'' 
which is in the docket for this action.
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A. Summary and Analysis of Revisions to 7 DE Admin. Code 1104 Sec.  1.5 
and 7 DE Admin. Code 1105 Sec.  1.7

    The 2015 SSM SIP Action cited 7 DE Admin. Code 1104 (Particulate 
Emissions from Fuel Burning Equipment) Sec.  1.5 because it provides a 
potential exemption from the emission limit in 7 DE Admin. Code 1104 
Sec.  2.1. The emission limit in 7 DE Admin. Code 1104 Sec.  2.1 
currently contained in the EPA-approved SIP says, ``no person shall 
cause or allow the emission of particulate matter in excess of 0.3 
pound per million British Thermal Units (lb/MMBTU) heat input, maximum 
two-hour average.'' Section 1.5 creates a potential exemption to this 
limit during start-up or shutdown events by stating, ``The provisions 
of this Regulation shall not apply to the start-up and shutdown of 
equipment which operates continuously or in an extended steady state 
when emissions from such equipment during start-up and shutdown are 
governed by an operation permit issued pursuant to the provisions of 
2.0 of 7 DE Admin. Code 1102.'' Delaware's SIP submission asked EPA to 
remove Sec.  1.5 and Sec.  2.1 of 7 DE Admin. Code 1104 from the EPA-
approved Delaware SIP, but these provisions would remain in the 
Delaware regulations. In addition, Delaware revised 7 DE Admin. Code 
1104 by adding a new section, Sec.  2.2, which states, ``[n]o person 
shall cause or allow the emission of particulate matter in excess of 
0.3 pound per million BTU heat input, maximum 30-day rolling average, 
from any fuel burning equipment.'' The SIP submission asked EPA to 
approve this new Sec.  2.2 into the Delaware SIP. While Delaware 
requested to remove Sec.  1.5, which contains the potential emission 
limit exemption during start-up and shutdown, from the EPA-approved 
SIP, the State also increased the two-hour averaging time found in 
Sec.  2.1 to 30 days while keeping the same 0.3 lb/MMBTU limit. Thus, 
the EPA-approved SIP would have a 0.3 lb/MMBTU 30-day rolling average 
limit, as set forth in the

[[Page 40138]]

new Sec.  2.2, while Delaware's regulations would have both a limit of 
0.3 lb/MMBTU two-hour average in Sec.  2.1, which could be changed for 
startup and shutdown purposes via Sec.  1.5, and a 0.3 lb/MMBTU 30-day 
rolling average limit in Sec.  2.2 that could not be changed via Sec.  
1.5.
    The 2015 SSM SIP Action also highlighted 7 DE Admin. Code 1105 
(Particulate Emissions from Industrial Process Operations) Sec.  1.7 
because it provides a potential exemption from the emission limit in 7 
DE Admin. Code 1105 Sec.  2.1. The emission limit in 7 DE Admin. Code 
1105 Sec.  2.1 currently contained in the EPA-approved SIP says, ``No 
person shall cause or allow particulate emissions into the atmosphere 
from any source not provided for in subsequent sections of this 
Regulation in excess of 0.2 grains per standard cubic foot.'' Section 
1.7 creates a potential exemption to this limit by stating, ``The 
provisions of this Regulation shall not apply to the start-up and 
shutdown of equipment which operates continuously or in an extended 
steady state when emissions from such equipment during start-up and 
shutdown are governed by an operation permit issued pursuant to the 
provisions of 2.0 of 7 DE Admin. Code 1102.'' Delaware revised 7 DE 
Admin. Code 1105 by adding a new section, Sec.  2.2, which added an 
emission limit of 0.2 grains per standard cubic foot on a 30-day 
rolling average basis. Delaware's SIP submission asked EPA to remove 
Sec.  1.7 and Sec.  2.1 from the EPA-approved SIP, but these provisions 
would remain in the Delaware regulations. Delaware's submission also 
asked EPA to approve the new Sec.  2.2 into the SIP. Again, although 
Delaware requested to remove Sec.  1.7, which contained the exemption 
identified in the 2015 SSM SIP Action, the State also asked EPA to 
approve into the SIP a newly created limit in Sec.  2.2 which adds an 
averaging period of 30 days to the existing 0.2 grains per cubic foot 
limit. Delaware does not explain how these differing emission limits in 
Sec.  2.1 and Sec.  2.2 would be reconciled.
    Delaware explained that the increases in averaging times provide 
the opportunity for any source subject to these limits to compensate 
for higher emission rates during startup or shutdown events by emitting 
at lower rates during normal operations, so long as continuous 
compliance is demonstrated on a 30-day rolling average basis.
    However, Delaware's increases in the averaging times for the 
particulate emission limits found in 7 DE Admin. Code 1104 and 1105 
were not supported by a sufficient analysis explaining why these 
changes meet the requirements of section 110(l) of the CAA. The 2015 
SSM SIP Action did not provide an opportunity for averaging times to be 
increased with no explanation or analysis of how the increased 
averaging time would or would not affect the national ambient air 
quality standards (NAAQS). In response to a comment regarding opacity, 
EPA noted in the 2015 SSM SIP Action that the removal of impermissible 
SSM exemptions should not be perceived as an opportunity to provide new 
de facto exemptions for these emissions by manipulation of the 
averaging time and the numerical level of existing opacity emission 
limitations.\12\ This reasoning is not exclusive to opacity 
limitations, and also applies to the SIP-approved particulate limit 30-
day rolling averaging times that Delaware has added to 7 De Admin. Code 
1104 and 1105. During Delaware's public comment period on these 
regulatory changes, EPA submitted comments raising this and other 
concerns.\13\ EPA noted that Delaware did not address whether changes 
to the averaging period might affect the emissions of any criteria 
pollutant and recommended a more robust explanation and analysis be 
provided to support Delaware's conclusion in order to meet the 
requirements of section 110(l) of the CAA. The State responded to EPA's 
comments during the state regulatory comment period with minimal data 
to assert that the long-term average of emissions would be slightly 
lower with the implementation of the revised limit. The State also 
explained these limits were originally intended to protect the total 
suspended particulate (TSP) NAAQS. However, the particulate matter (PM) 
NAAQS replaced the TSP standard.\14\ Therefore, these limits still play 
a role in protecting the existing PM NAAQS. Although Delaware is 
currently attaining the PM standards,\15\ the State did not explain how 
this 30-day rolling average longer-term limit is still protective of 
the short-term NAAQS, such as the 24-hour PM standard. Delaware's 
response to EPA's comments did not adequately explain how the increased 
averaging time of the 30-day rolling average limits, without decreasing 
the limit itself, would be protective of the PM NAAQS, and instead 
noted, with minimal explanation, that this would not result in any 
increase in emissions on a tons per year basis. Delaware explained this 
using two scenarios. In the first scenario, Delaware referred to the 
emissions limits and startup/shut down exemptions that are currently 
SIP-approved. Delaware stated that if all steady-state hours of 
operation emit exactly at, or very near, the emissions limit, and 
emissions during startup/shut down events are exempt, then the long-
term average of emissions would be slightly higher than the emission 
limit. In scenario two, they noted with the new 30-day rolling average 
limits and no exemptions for start-up or shut down events, emissions 
occurring during SSM events would have to be offset by emissions lower 
than the 30-day average emission limit during non-SSM operation. 
Delaware asserted, without any further explanation, that this would 
result in the long-term average of emissions to be no more than the 30-
day average emission limit. Delaware explained, with respect to annual 
emissions, the emissions calculation in scenario two is less than the 
emissions in scenario one. Therefore, Delaware believes this change is 
SIP strengthening.
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    \12\ 80 FR 33840 at 33921 (June 12, 2015).
    \13\ See EPA Comment #1 and EPA Comment #2 of Appendix B in 
State Submittal document.
    \14\ The PM2.5 24-hour standard is 35 micrograms per 
cubic meter ([mu]g/m\3\). The PM2.5 annual standard is 
12.0 [mu]g/m\3\. The PM10 24-hour standard is 150 [mu]g/
m\3\. See 40 CFR 50.6 and 50.7.
    \15\ See 40 CFR 81.308.
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    EPA does not agree that the evaluation of the impacts of changing 
the averaging period for an emissions limit enacted to ensure the NAAQS 
is attained and protected can be limited only to consideration of 
emissions on an annual basis. The potential short-term effect of a 
sharp increase in particulate emissions during a startup or shutdown 
event on a shorter-term NAAQS limit, such as the PM10 24-
hour standard, need to be examined and explained. Therefore, EPA does 
not consider the State's explanation of why the longer 30-day averaging 
period with the same emission limit are adequate to ensure continued 
attainment of the NAAQS. EPA's comments and Delaware's response can be 
found in the docket for this action.
    Under CAA section 110(l), EPA cannot approve a plan revision ``if 
the revision would interfere with any applicable requirement concerning 
attainment and reasonable further progress (as defined in section 7501 
of [title 42]), or any other applicable requirement of this chapter.'' 
\16\ The nature of the technical demonstration needed under section 
110(l) to support approval of a SIP revision depends on the facts and 
circumstances of the SIP revision at issue. Based on the

[[Page 40139]]

information available to EPA, EPA concluded that approval of these 
longer-term limits for a shorter-term NAAQS would not be consistent 
with the requirements of section 110(l). For EPA's analysis to address 
CAA section 110(l), EPA requested information from the State, but the 
State did not respond with the appropriate information. At a minimum, 
Delaware should have explained how this change would not impact 
maintenance of the PM NAAQS, as well as explain how this change meets 
the applicable legal requirements of the CAA, including both sections 
110(l) and 193, as EPA suggested in their comments during Delaware's 
public comment period. Additionally, the submittal lacks an explanation 
of the maximum daily emissions that could occur with the new averaging 
time. There is also no information regarding the likely frequency of 
startup and shutdown events, the likely magnitude of emissions during 
these events, and how many such events it would take in a 30-day period 
to exceed the new 30-day average. This information is relevant because 
it could be that one large startup or shutdown event with significant 
PM emissions could cause an exceedance of the PM NAAQS at a monitor. 
More frequent SSM events under a 30-day averaging period can cause the 
short-term emissions to increase, with a deleterious effect on shorter-
term NAAQS. There is no explanation of how the NAAQS will continue to 
be protected with the new, longer averaging period.
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    \16\ A more detailed discussion of 110(l) can be found in the 
SO2 air plan disapproval for Missouri at 87 FR 40759, 
40760 (July 8, 2022).
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    Replacement SIP provisions should have averaging periods that are 
logically related to the NAAQS at issue. The 2015 SSM SIP Action notes, 
``For example, if a state chooses to modify averaging times in an 
emission limitation to account for higher emissions during startup and 
shutdown, the state would need to consider and demonstrate to the EPA 
how the variability of emissions over that averaging period might 
affect attainment and maintenance of a NAAQS with a short averaging 
period (e.g., how a 30-day averaging period for emissions can ensure 
attainment of an 8-hour NAAQS).'' (80 FR 33840, 33947 (June 12, 2015)). 
Delaware has not explained how the 30-day average is reasonably related 
to the 24-hour PM NAAQS. The 2015 SSM SIP Action also notes that in 
some cases, extension of the averaging period and elevation of the 
numerical limitations may in fact be appropriate. In other cases, 
however, it may instead be appropriate to reduce the existing numerical 
opacity limitations, given improvements in control technology since the 
original imposition of the limits.\17\ In either scenario, the 
appropriate analysis and justification is needed, such as specific 
calculations, including emissions distributions for sources in the 
state, backed up by operating data, that shows an extension of the 
averaging period would not violate the NAAQS. EPA has explained, for 
the sulfur dioxide (SO2) NAAQS, how an increase in the 
averaging period for SO2 emission limits beyond the 8-hour 
standard used for the SO2 NAAQS could be protective of the 
eight-hour SO2 NAAQS. EPA's 2014 SO2 
Nonattainment Guidance recommends that the emission limits be expressed 
as short-term averages, but also describes the option to use emission 
limits with longer averaging times of up to 30 days so long as the 
state meets various suggested criteria.\18\ The guidance recommends 
that--should states and sources utilize longer averaging times--the 
longer-term average limit should be set at an adjusted level that 
reflects a stringency comparable to the 1-hour average limit at the 
critical emission value (CEV) shown to provide for attainment that the 
plan otherwise would have set.\19\ To preserve comparable stringency, 
it would be expected that adjusting the level would result in a 
lowering of the emission rate if lengthening the averaging time. In 
cases where longer-term average limits are appropriate, EPA envisions 
that both the short-term and longer-term limits in practice would 
require similar emission control levels and would commonly result in 
similar emission patterns.\20\ Therefore, a longer averaging time can 
be appropriate to protect a shorter-term NAAQS but would require an in-
depth analysis of what adjusted downward level would provide a 
comparable stringency. Delaware did not lower their emissions limit 
when increasing the averaging time, nor did they provide an in-depth 
analysis explaining how the same emission limit with a 30-day rolling 
averaging period is comparable in stringency to the same emission limit 
with a shorter, 3-hour averaging period previously found in their EPA-
approved SIP.
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    \17\ 80 FR 33840 at 33912 (June 12, 2015).
    \18\ Guidance for 1-hour Sulfur Dioxide (SO2) 
Nonattainment Area State Implementation Plans (SIP) Submissions, pp. 
22 to 39.
    \19\ Id. at 26.
    \20\ Id. at 29.
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    To support their adoption of a 30-day averaging period, Delaware's 
response to comments cited page 2 of EPA's 1984 guidance memo, entitled 
``Averaging Times for Compliance with VOC Emission Limits--SIP Revision 
Policy,'' \21\ which states ``Averaging periods must be as short as 
practicable and in no case longer than 30 days.'' However, in the same 
memo, EPA specifically states that a demonstration must be made to show 
the use of long-term averaging will not jeopardize the NAAQS.\22\ 
Though this guidance is geared towards volatile organic compounds 
(VOCs), the idea that retention of the same limit with a longer-term 
averaging period requires some demonstration explaining how the longer-
term averaging time would not affect the NAAQS is applicable to the PM 
NAAQS too.
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    \21\ See the Averaging Times for Compliance with VOC Emission 
Limits--SIP Revision Policy Memorandum.
    \22\ Id. at 2.
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    It is also important to recognize the broadness of the source 
categories for these two regulations--fuel burning equipment and 
industrial process operations. Given the broadness of these categories, 
significant consideration should be given to how a 30-day averaging 
period would even apply to the sources falling in these categories, 
especially the smaller source categories that do not operate regularly, 
such as emergency generators. The State's submittal also lacks an 
explanation of the type and number of Delaware sources which might be 
subject to these two regulations, and how the change in averaging time 
might affect their emissions and thus affect the NAAQS. Additional 
explanation is required to explain how the revisions would impact the 
sources subject to these regulations, and how these impacts would be 
unlikely to affect the NAAQS.
    Lastly, Delaware noted that the emission limits that were 
highlighted in the 2015 SSM SIP Action would remain in the Delaware 
state regulations. Therefore, these short-term limits, along with the 
exemptions, are still applicable as a matter of state law only. 
According to Delaware, because the short-term limits are still 
effective at the state level, there is no change in the status quo of 
emissions, and this means air quality may remain unaffected. However, 
this is still problematic for several reasons. First, EPA cannot rely 
on state-only provisions when evaluating SIP submissions for compliance 
with CAA requirements. Presumably, Delaware asked that these emission 
limits be placed into the SIP because they were necessary to attain or 
maintain the NAAQS, and as discussed above, the effect on the NAAQS of 
replacing these shorter-term average SIP limits with longer-term 
averaging limits on attainment or maintenance of the

[[Page 40140]]

NAAQS is not adequately explained. Second, removing the shorter-term 
emission limits from the EPA-approved SIP but keeping them in the state 
regulation, while also keeping the possibility for a state issued 
startup or shutdown exemption from these limits, creates the 
possibility that the current status quo of PM emissions may not be 
maintained. And, because the shorter-term emission limit is no longer 
in the SIP, neither EPA nor citizens can enforce the shorter-term limit 
under CAA sections 113 and 304. In effect, Delaware could grant an 
exemption to emission limits which might be necessary to attain or 
maintain the NAAQS without going through the SIP revision process 
required by the CAA.
    The concerns stated above suggest that the revisions to 7 DE Admin. 
Code 1104, Particulate Emissions from Fuel Burning Equipment, and 7 DE 
Admin. Code 1105, Particulate Emissions from Industrial Process 
Operations, cannot be approved. Further justification and information 
from the State is required to explain that these changes would not be 
inconsistent with CAA section 110(l), as well as explain how this 
change meets the applicable legal requirements of the CAA, including 
CAA section 193.

B. Summary and Analysis of Revisions to 7 DE Admin. Code 1109 Sec.  1.4 
and 7 DE Admin. Code 1114 Sec.  1.3

    The 2015 SSM SIP Action included 7 DE Admin. Code 1109 (Emissions 
of Sulfur Compounds From Industrial Operations) Sec.  1.4 because it 
provides a potential exemption from the emission limitations during 
startup and shutdown when the emissions during startup and shutdown are 
governed by an operation permit issued pursuant to Sec.  2.0 of 7 DE 
Admin. Code 1102. Delaware's SIP revision requests that the EPA remove 
7 DE Admin. Code 1109 in its entirety from the Delaware SIP but retains 
this regulation, including the startup and shutdown exemption, at the 
state level. Delaware asserts that existing Federal requirements, such 
as the New Source Performance Standards (NSPS) adopted pursuant to CAA 
section 111, are adequate to ensure Delaware's maintenance of the 
sulfur-related NAAQS,\23\ which Delaware is currently attaining.\24\ 
Delaware believes that removal of this regulation from the SIP, but 
retention of the regulation at the state level, will not result in any 
increase in emissions on a ton per year basis, and that this revision 
comports with the EPA's interpretation of the CAA and is consistent 
with the EPA's approach for attainment and maintenance of all NAAQS.
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    \23\ The SO2 1-hour standard is 75 ppb. See 40 CFR 
50.17.
    \24\ See 40 CFR 81.308.
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    The 2015 SSM SIP Action included 7 DE Admin. Code 1114 (Visible 
Emissions), Sec.  1.3, because it provides a similar exemption from the 
visible emission (VE) limits during startup and shutdown when such 
emissions are governed by an operation permit issued pursuant to Sec.  
2.0 of 7 DE Admin. Code 1102. Delaware's SIP revision requests that the 
EPA remove 7 DE Admin. Code 1114 in its entirety from the Delaware SIP 
but retains this regulation, including the exemption, in the state 
regulations. The State asserts that existing Federal requirements, such 
as the New Source Performance Standards (NSPS), regulate visible 
emissions from certain sources, while two other Delaware SIP 
regulations that regulate fine particulate matter and fine particulate 
matter precursors (7 DE Admin. Code 1108 and 1146) when combined with 
the NSPS, are adequate to ensure Delaware's attainment and maintenance 
of any particulate-related NAAQS. In addition, Delaware argues that 
there is no quantifiable relationship between visible emissions and 
fine particulate matter emissions. Delaware believes that removal of 
this regulation from the SIP will not result in any increase in 
emissions on a ton per year basis, and that because this revision 
removes from the SIP a provision allowing for excess emissions, the 
change therefore comports with the EPA's interpretation of the CAA and 
is consistent with the EPA's approach for attainment and maintenance of 
all NAAQS. Delaware's response provides no other explanation regarding 
how the revisions comply with the CAA.
    To address CAA section 110(l), EPA believes it needs more 
information and analysis from the State to support EPA's approval of 
the removal of these two regulations from the Delaware SIP while 
keeping the regulations at the state level. Section 110(l) prohibits 
approval of a SIP revision if it would interfere with attainment or any 
other applicable requirement. Delaware's SIP revision merely states 
that the removal of this regulation from the SIP will not result in any 
increase in emissions on a ton per year basis but provides no further 
explanation or any technical demonstration to support this assertion, 
and EPA does not have information available that would support this 
conclusion. To support an approval decision that would be consistent 
with section 110(l), Delaware should have provided information 
demonstrating that these changes would not impact maintenance of the 
NAAQS, as well as explain how this change meets the applicable legal 
requirements of the CAA, including section 193. During the state public 
comment period on this SIP revision, EPA submitted comments to Delaware 
raising these concerns.\25\ EPA's comments and Delaware's response can 
be found in the docket for this action.
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    \25\ See EPA Comment #3 and EPA Comment #4 of Appendix B in 
State Submittal document.
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    Despite EPA's comments, Delaware's SIP revision did not include an 
analysis to address CAA section 110(l). Instead, in regard, to 7 DE 
Admin. Code 1109, the State responded that the sources' reliance on the 
NSPS is enough to protect the NAAQS. Specifically, Delaware noted there 
are two facilities in the state currently subject to 7 DE Admin Code 
1109--the Chemours Red Lion sulfuric acid plant and the Delaware City 
Refinery--and that each facility is subject to a more stringent NSPS. 
The Chemours Red Lion sulfuric acid plant is subject to 40 CFR part 60, 
subpart H, and the Delaware City Refinery is subject to 40 CFR part 60, 
subpart J. However, both subparts H and J allow for periods of excess 
emissions. The provisions at 40 CFR part 60, subpart A, General 
Provisions, are applicable to sources subject to 40 CFR part 60, 
subparts H and J. Subpart A of 40 CFR part 60 contains exemptions in 
both 40 CFR 60.8(c)and 60.11(c) . The provisions at 40 CFR 60.11(c) 
note ``The opacity standards set forth in this part shall apply at all 
times except during periods of startup, shutdown, malfunction, and as 
otherwise provided in the applicable standard.'' While 40 CFR 60.8(c), 
states ``Operations during periods of startup, shutdown, and 
malfunction shall not constitute representative conditions for the 
purpose of a performance test nor shall emissions in excess of the 
level of the applicable emission limit during periods of startup, 
shutdown, and malfunction be considered a violation of the applicable 
emission limit unless otherwise specified in the applicable standard.'' 
Reliance on these NSPS, which include excess emission exemptions, is 
problematic in some cases for multiple reasons.
    EPA acknowledges that many of the existing NSPS still contain 
exemptions from emission limitations during periods of SSM. The 
exemptions in these EPA regulations, however, predate the 2008 issuance 
of the D.C. Circuit decision in Sierra Club v. Johnson, in which the 
court held that emission limitations must be continuous and thus cannot 
contain exemptions for

[[Page 40141]]

emissions during SSM events.\26\ Since the 2008 Sierra Club decision, 
EPA has been working to remove or revise these SSM provisions as NSPS 
are reviewed.\27\ Thus, some NSPS have been revised to address the 2008 
Sierra Club decision, but some have not, and Delaware's sources may be 
subject to not-yet-updated standards. Despite the fact that EPA has not 
completed its work removing SSM provisions from every NSPS, the Agency 
is not willing to approve the removal of SIP approved regulations 
containing potential startup and shutdown exemptions, on the basis that 
affected sources would instead be subject to NSPS that also contain SSM 
exemptions.
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    \26\ 551 F.3d 1019 (D.C. Cir. 2008).
    \27\ 80 FR 33840 at 33890-91 (June 12, 2015).
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    Regarding 7 DE Admin Code 1114, the State responded to EPA's 
comment by noting that there is no discernable relationship between 
opacity and fine particulate matter emissions, and therefore this 
regulation cannot be relied on to prevent a source from impacting the 
NAAQS. EPA assumes Delaware meant that PM2.5 cannot be seen 
as visible emissions because PM2.5 is formed after leaving 
the stack or other source from the precursor emissions of nitrogen 
oxides (NOX), VOCs, SO2, and ammonia. However, 
PM10 can be seen as visible emissions, and the observation 
of unusual levels of visible emissions could be an indication of a 
malfunction in the source itself or a pollution control device which 
may result in increased emissions of one or more of PM2.5 
precursors. Thus, Delaware's existing opacity limits may be a warning 
sign of potential increases in the precursor pollutants contributing to 
PM2.5, and therefore may play a role in preventing 
PM2.5 NAAQS exceedances.
    Delaware also cites to two other SIP approved regulations, 7 DE 
Admin. Code 1108 Sulfur Dioxide Emissions from Fuel Burning Equipment, 
and 7 DE Admin. Code 1146 EGU Multi-Pollutant Regulation, as being 
adequate to protect the PM NAAQS, along with unidentified NSPS, but 
does not adequately explain how these regulations or the NSPS control 
emissions of PM2.5 precursors during VE events. In addition, 
the State still did not provide an explanation of the number and type 
of Delaware sources subject to 7 DE Admin. Code 1114, how removing this 
regulation from the Delaware SIP but retaining it as a state regulation 
with the potential startup and shutdown exemption would affect their 
emissions and thus affect the NAAQS, and how the Delaware SIP would 
remain protective of the NAAQS. Further justification is required to 
explain that this change will not impact attainment and maintenance of 
the NAAQS, as well as explain how this change meets the applicable 
legal requirements of the CAA, including CAA section 193.
    Lastly, Delaware noted that these regulations that were highlighted 
in the 2015 SSM SIP Action (1109 and 1114) would be retained at the 
state level. These state regulations allow Delaware to issue case-by-
case permits via 7 DE Admin. Code 1102 to address emissions during 
startup and shutdown events. Therefore, Delaware would be relying on 
their own permits to regulate emissions during startup and shutdown 
events to protect the NAAQS during these periods. Because these 
regulations (1109 and 1114) provide a potential exemption from the 
emission limitations during startup and shutdown when the emissions 
during startup and shutdown are governed by a section 1102 operation 
permit, but would no longer be in the SIP, neither EPA nor citizens 
would be able to enforce this alternative limit for startup or shutdown 
under CAA sections 113 and 304. In effect, Delaware could grant an 
exemption to formerly federally enforceable emission limits which might 
be necessary to attain or maintain the NAAQS without justifying these 
revisions by going through the SIP revision process required by the 
CAA.
    The concerns stated above suggest that the revisions to the 
Delaware SIP requesting removal of 7 DE Admin. Code 1109, Emissions of 
Sulfur Compounds From Industrial Operations, and 7 DE Admin. Code 1114, 
Visible Emissions, from the SIP cannot be approved.

III. Proposed Action

    EPA's review of this material indicates Delaware did not provide 
adequate justification to support the revisions to Delaware's SIP 
pertaining to 7 DE Admin. Code 1104, 1105, 1109 and 1114 requested in 
their 2016 SIP submission. Further justification is required to explain 
that these changes will not impact maintenance of the PM and 
SO2 NAAQS. EPA is proposing to disapprove the portion of 
Delaware's November 22, 2016, SIP submission addressing 7 DE Admin. 
Code 1104 Sec.  1.5, 7 DE Admin. Code 1105 Sec.  1.7, 7 DE Admin. Code 
1109 Sec.  1.4, and 7 DE Admin. Code 1114 Sec.  1.3. EPA is not 
reopening the 2015 SSM SIP Action and is only taking comment on the 
issues discussed in this document. These comments will be considered 
before taking final action.

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a ``significant regulatory action'' as defined 
by Executive Order 12866 and was therefore not submitted to the Office 
of Management and Budget for review.

B. Paperwork Reduction Act (PRA)

    This proposed action does not impose an information collection 
burden under the PRA because it does not contain any information 
collection activities.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action merely proposes to disapprove a SIP submission as not meeting 
the CAA.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. This action does not apply on any Indian 
reservation land, any other area where the EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction, or non-reservation areas of 
Indian country. Thus, Executive Order 13175 does not apply to this 
action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those

[[Page 40142]]

regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it merely proposes to disapprove a SIP 
submission as not meeting the CAA.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to review state choices, 
and approve those choices if they meet the minimum criteria of the Act. 
Accordingly, this proposed action disapproves state law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by state law.
    The air agency did not evaluate environmental justice 
considerations as part of its SIP submittal; the CAA and applicable 
implementing regulations neither prohibit nor require such an 
evaluation. EPA did not perform an EJ analysis and did not consider EJ 
in this action. Due to the nature of the action being taken here, this 
action is expected to have a neutral to positive impact on the air 
quality of the affected area. Consideration of EJ is not required as 
part of this action, and there is no information in the record 
inconsistent with the stated goal of E.O. 12898 of achieving 
environmental justice for people of color, low-income populations, and 
Indigenous peoples. This action merely proposes to disapprove a SIP 
submission as not meeting the CAA.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2023-13148 Filed 6-20-23; 8:45 am]
BILLING CODE 6560-50-P