[Federal Register Volume 88, Number 203 (Monday, October 23, 2023)]
[Rules and Regulations]
[Pages 72688-72691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23242]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2023-0206; FRL-11037-02-R3]


Air Plan Disapproval; Delaware; Removal of Excess Emissions 
Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final action.

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SUMMARY: The Environmental Protection Agency (EPA) is disapproving 
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 disapproving certain portions of the SIP revision and 
determining 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: This final action is effective on November 22, 2023.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2023-0206. 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)

[[Page 72689]]

814-2030. Ms. Moser can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On June 12, 2015, pursuant to CAA section 110(k)(5), the 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,'' \1\ hereafter referred to as the ``2015 SSM 
SIP Action.'' The 2015 SSM SIP Action clarified, restated, and updated 
the EPA's interpretation that SSM exemptions (whether automatic or 
discretionary) 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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    \1\ 80 FR 33839, June 12, 2015.
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    With respect to the Delaware SIP, in the 2015 SSM SIP Action, EPA 
determined that the following 7 provisions 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. 
Delaware submitted a SIP revision on November 22, 2016, in response to 
the SIP call issued in the 2015 SSM SIP Action. Delaware's submission 
noted that the deficiency highlighted in 7 DE Admin. Code 1108 Sec.  
1.2 was corrected by a previous SIP revision submitted to EPA on July 
10, 2013. A final rule acting on this 2013 submission and remedying 7 
DE Admin. Code 1108 Sec.  1.2 published in the Federal Register on July 
11, 2022.\2\ 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 remedying 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.\3\
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    \2\ See 87 FR 41074.
    \3\ See 88 FR 9399.
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II. Summary of SIP Revision and EPA Analysis

    On June 21, 2023, EPA published a notice of proposed rulemaking 
(NPRM) related to the remaining four provisions identified in EPA's 
June 2015 SIP call that had not yet been addressed by prior EPA 
actions.\4\ In that document, EPA proposed disapproval of the remainder 
of Delaware's 2016 submittal for multiple reasons. With regards to 7 DE 
Admin. Code 1104 and 7 DE Admin. Code 1105, Delaware's 2016 submittal 
requested EPA replace both two-hour averaging periods for particulate 
emission limits with 30-day rolling averages with no change to the 
level of the limit. The increases in averaging times were not supported 
by a sufficient analysis explaining why these changes meet the 
requirements of CAA section 110(l). Additionally, Delaware did not 
provide an explanation or analysis of how increasing the averaging time 
of the affected limits without any adjustment to their levels would or 
would not affect attainment or maintenance of the national ambient air 
quality standards (NAAQS). With regards to 7 DE Admin. Code 1109 and 7 
DE Admin. Code 1114, Delaware's 2016 submission requested the removal 
of these regulations from the SIP and instead noted that other 
requirements, including the CAA New Source Performance Standards 
(NSPS), are adequate to protect the NAAQS. This is problematic because 
the specific NSPS which Delaware cited allow for periods of excess 
emissions during SSM events. Also, these changes were not supported by 
a sufficient analysis explaining how these changes meet the 
requirements of CAA section 110(l). A more complete explanation of the 
reasons for the proposed disapproval can be found in the June 21, 2023, 
NPRM.
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    \4\ See 88 FR 40136.
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III. EPA's Response to Comments Received

    EPA received two comments which can be found in the docket. One 
comment, from the State of Delaware, notes the State is reviewing the 
record and preparing a path forward to respond to the concerns found 
within the NPRM. EPA acknowledges Delaware's comment. The other 
comment, from the Sierra Club and Environmental Integrity Project 
(EIP), was partially adverse, and the adverse portions are discussed 
below.
    Comment 1: The commenters, Sierra Club and EIP, expressed support 
for EPA's proposed disapproval action on the remaining provisions in 
Delaware's 2016 submittal, while disagreeing with EPA's position in the 
NPRM that a properly set longer-term averaging period can be protective 
of a shorter-term NAAQS. Commenters also urged EPA to propose a Federal 
Implementation Plan (FIP) to address the remaining disapproved 
provisions of Delaware's 2016 submittal.
    Response 1: While EPA acknowledges commenters' support of this 
action, EPA continues to believe that in appropriate cases properly set 
longer-term emission limits can be protective of a shorter-term NAAQS. 
EPA has explained in the 2014 Guidance for 1-Hour Sulfur dioxide 
(SO2) Nonattainment Area SIP Submissions (2014 
SO2 Guidance) \5\ how a short-term rate that is shown to be 
NAAQS protective for a given source can be converted to a comparably 
stringent longer-term limit that is also NAAQS protective. The 1-hour 
SO2 Guidance recommends that 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 to adjust the longer-term limit 
downward to account for the variability of the source's emissions. EPA 
has approved several SO2 SIPs relying on longer term average 
limits derived according to the methods found in the 2014 
SO2 guidance. See, for example, 83 FR 4591 (February 1, 
2018) (approval of Illinois SO2 SIP); 83 FR 25922 (June 5, 
2018) (approval of New Hampshire SO2 SIP); 84 FR 8813 (March 
12, 2019) (approval of Arizona SO2 SIP); 84 FR 30920 (June 
28, 2019) (approval of Kentucky SO2 SIP); 84 FR 51988 
(October 1, 2019) (approval of Pennsylvania SO2 SIP for the 
Beaver County area); 85 FR 22593 (April 23, 2020 (approval of 
Pennsylvania SO2 SIP for the Allegheny County area), and 85 
FR 49967 (August 17, 2020) (approval of Indiana SO2 SIP). 
The principles found in the 2014 SO2 Guidance can be applied 
to other NAAQS pollutants with short-term averaging times, such as 
particulate matter, if adequately demonstrated in a specific case. With 
an appropriate analysis, a properly set longer-term averaging period 
can be protective of a shorter-term NAAQS;

[[Page 72690]]

however, in this matter Delaware merely lengthened the averaging time 
for the limit without adjusting the limit's value in accordance with 
the SIP Guidance. As such, a critical portion of the demonstration is 
lacking so EPA is not yet prepared to apply this methodology in this 
specific action.
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    \5\ The 2014 SO2 Guidance can be found at the 
following web address: https://www.epa.gov/sites/default/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf.
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    In response to the request that EPA promulgate a FIP, EPA 
acknowledges this comment and recognizes the Agency's statutory 
obligation to promulgate a FIP within 24 months of a final disapproval 
of a SIP submission unless the State corrects the deficiency, and EPA 
approves the plan or plan revision, before EPA promulgates the FIP.

IV. Final Action

    For the reasons discussed in detail in the proposed rulemaking and 
summarized herein, EPA is disapproving 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.
    As a result of our disapproval, CAA section 110(c)(1) would require 
EPA to promulgate a FIP within 24 months of the effective date of the 
final disapproval action, unless EPA first approves a complete SIP 
revision that corrects the deficiencies in 7 DE Admin. Code 1104 
Section (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, within such time. 
In addition, final disapproval could trigger mandatory sanctions under 
CAA section 179 and 40 CFR 52.31 unless the State submits, and EPA 
approves, a complete SIP revision that corrects the identified 
deficiencies within 18 months of the effective date of the final 
disapproval action.\6\
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    \6\ The offset sanction in CAA section 179(b)(2) would be 
triggered 18 months after the effective date of a final disapproval, 
and the highway funding sanction in CAA section 179(b)(1) would be 
triggered 24 months after the effective date of a final disapproval. 
Although the sanctions clock would begin to run from the effective 
date of a final disapproval, mandatory sanctions under CAA section 
179 generally apply only in designated nonattainment areas. This 
includes areas designated as nonattainment after the effective date 
of a final disapproval. As discussed in the 2015 SSM SIP Action, EPA 
will evaluate the geographic scope of potential sanctions at the 
time it makes a determination that the air agency has failed to make 
a complete SIP submission in response to the 2015 SIP call, or at 
the time it disapproves such a SIP submission. The appropriate 
geographic scope for sanctions may vary depending upon the SIP 
provisions at issue. See the 2015 SSM SIP Action at 80 FR 33839, 
33930 (June 12, 2015) EPA Docket ID No. EPA-HQ-OAR-2012-0322 
available at www.regulations.gov.
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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, if 
they meet the criteria of the CAA. Accordingly, this final action 
disapproving portions of Delaware's SIP revision merely ascertains that 
these State law provisions do not meet Federal requirements and does 
not impose additional requirements beyond those imposed by state law. 
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 portion of 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 
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 
portion of 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

    Section 12(d) of the NTTAA directs the EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. The EPA 
believes that this action is not subject to the requirements of section 
12(d) of the NTTAA because application of those requirements would be 
inconsistent with the CAA.

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

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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.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

L. 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 June 16, 2023. Filing a petition for 
reconsideration by the Administrator of this final action 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 action. 
This action pertaining to the disapproval of these portions of 
Delaware's November 22, 2016, submittal, 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.
[FR Doc. 2023-23242 Filed 10-20-23; 8:45 am]
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