[Federal Register Volume 87, Number 131 (Monday, July 11, 2022)]
[Rules and Regulations]
[Pages 41074-41076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14715]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0204; FRL-9440-02-R3]


Air Plan Approval; Delaware; Sulfur Content of Fuel Oil

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) revision submitted by the State of Delaware. 
The revision pertains to the reduction of the maximum allowable sulfur 
content limit for distillate fuels, from a current limit of 3000 parts 
per million (ppm) (0.3% by weight) to 15 ppm (0.0015% by weight) and 
residential fuels from a current limit of 1.0% by weight to 0.5% by 
weight. This revision also adds requirements for sampling and testing 
along with certification and recordkeeping. Additionally, start up, 
shut down and malfunction provisions that were previously included in 
the Delaware SIP have been removed in this revision. EPA has determined 
that such removal corrects a deficiency identified in the June 12, 
2015, SIP call issued to Delaware. EPA is approving the revision to the 
Delaware SIP in accordance with the requirements of the Clean Air Act 
(CAA).

DATES: This final rule is effective August 10, 2022.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2014-0204. All documents in the docket are listed on 
the https://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 
https://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, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-
2030. Ms. Moser can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On January 28, 2022 (87 FR 4528), EPA published a notice of 
proposed rulemaking (NPRM) for the State of Delaware which proposed to 
approve a revision to Title 7 of Delaware's Administrative Code (7 DE 
Admin. Code) 1108--Sulfur Dioxide Emissions from Fuel Burning Equipment 
into the Delaware SIP. The revision will reduce the amount of sulfur in 
fuel oils used in fuel burning units.\1\ The revised regulation also 
establishes the date of compliance and adds necessary record keeping 
and recording provisions to ensure compliance with the regulation. 
Additionally, the revision removes start up, shut down and malfunction 
provisions that were previously included in the Delaware SIP. The 
formal SIP revision was submitted by Delaware on July 10, 2013, and 
amended on August 19, 2016, by a supplemental letter from Delaware 
Department of Natural Resources and Environmental Control (DNREC) 
withdrawing a portion of Section 3.0 of 7 DE Admin. Code 1108. The 
letter is

[[Page 41075]]

available in the docket for this rulemaking and online at 
www.regulations.gov.
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    \1\ A ``fuel burning unit'' is defined as ``each unit, or any 
combination of units discharging to a common stack used for the 
burning of fuel or other combustible material for the primary 
purpose of utilizing the thermal energy released.'' This definition 
is included in the Delaware SIP at 40 CFR 52.420(c).
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II. Summary of SIP Revision and EPA Analysis

    The SIP revision incorporates amendments to 7 DE Admin. Code 1108--
Sulfur Dioxide Emissions from Fuel Burning Equipment which sets the 
allowable content of sulfur in fuel oils combusted in Delaware. The 
amendments reduce the SIP approved maximum allowable sulfur content 
limit for distillate fuels to 15 ppm, and for residential fuel to 0.5% 
by weight. For any other fuel, the sulfur content would remain 1.0% by 
weight.
    In addition, the amendments to 7 DE Admin. Code 1108 respond to a 
SIP call issued by EPA for this provision as part of a national action 
to address startup, shutdown and malfunction (SSM) SIP provisions which 
are contrary to the CAA and existing EPA guidance.\2\ The SIP 
submission from Delaware, that is the subject of this action, contains 
a revised version of 7 DE Admin. Code 1108 to delete the language 
identified in the 2015 SSM SIP call, formerly at Section 1.2, which 
allowed for impermissible exemptions from the low sulfur fuel oil 
provisions.
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    \2\ After issuing a statement in 2020 to change aspects of the 
policy articulated in the 2015 SSM SIP Action, EPA in 2021 
reinstated and reaffirmed the 2015 policy (see 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). Neither the 2020 nor 2021 
guidance memoranda affected the SSM SIP call for Delaware, and, as 
stated in the McCabe memorandum, EPA intends to implement the 2015 
SSM SIP Action, including taking this action on the SIP submittal in 
partial response to the 2015 SIP call.
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    This SIP revision to implement low sulfur fuel oil provisions is 
expected to reduce regional haze and visibility impairment in Delaware. 
Additionally, decreased emissions of sulfur dioxide (SO2) 
will contribute to the attainment, maintenance, or both, of the 
SO2 and fine particulate matter (PM2.5) national 
ambient air quality standards (NAAQS) in Delaware and the surrounding 
areas. Other specific requirements of the SIP revision and the 
rationale for EPA's proposed action are explained in the NPRM and will 
not be restated here. Relevant support documents for this action are 
available online at https://www.regulations.gov, Docket number EPA-R03-
OAR-2014-0204.

III. EPA's Response to Comments Received

    EPA received four comments in total, two of which were supportive 
and can be found in the docket. The remaining two comments EPA received 
were generally supportive but raised issues beyond the scope of this 
rulemaking. One comment supported this action generally but suggested 
additional sulfur reductions should be encouraged by phasing out fossil 
fuels and investing ``in infrastructure that supports the use of 
electric cars.'' Another comment approved of this action to the extent 
that it approved Delaware's revision to correct one of the SSM 
exemptions identified in the SSM SIP Call, but admonished EPA for not 
yet taking action to address the other six SSM provisions in Delaware's 
SIP that were identified in the SSM SIP Call. EPA acknowledges both 
comments and the feedback provided. However, the concerns expressed by 
both commenters are beyond the scope of this rulemaking action, and no 
response by EPA to those comments is required.

IV. Final Action

    EPA is approving, as a SIP revision, the State of Delaware's July 
10, 2013, submittal reducing the amount of sulfur in fuel oils and 
removing SSM provisions from this portion of the Delaware SIP. EPA has 
determined that such approval corrects a deficiency identified in the 
June 12, 2015, SIP call issued to Delaware. EPA is approving the 
revision to the Delaware SIP in accordance with the requirements of the 
CAA.

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 Delaware's 
Sulfur Dioxide Emissions from Fuel Burning Equipment requirements as 
described in 7 DE Admin. Code 1108, not including the last sentence of 
section 3.0, which Delaware withdrew from this SIP revision. EPA has 
made, and will continue to make, these materials generally available 
through https://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 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.\3\
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    \3\ 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

[[Page 41076]]

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).

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 September 9, 2022. 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 regarding fuel oil sulfur limits for combustion and 
sale in the State of Delaware 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, Particulate matter, Regional haze, Sulfur oxides.

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. In Sec.  52.420:
0
a. In the table in paragraph (c) under the heading ``1108 Sulfur 
Dioxide Emissions from Fuel Burning Equipment'':
0
i. Revise the entries ``Section 1.0'', ``Section 2.0'', and ``Section 
3.0''; and
0
ii. Add the entries ``Section 4.0'' and ``Section 5.0'' in numerical 
order.
    The revisions and additions 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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                            1108 Sulfur Dioxide Emissions From Fuel Burning Equipment
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Section 1.0.....................  General Provisions....      07/11/2013  7/11/2022, [insert      ..............
                                                                           Federal Register
                                                                           citation].
Section 2.0.....................  Limit on Sulfur             07/11/2013  7/11/2022, [insert      ..............
                                   Content of Fuel.                        Federal Register
                                                                           citation].
Section 3.0.....................  Emissions Control in        07/11/2013  7/11/2022, [insert      ..............
                                   Lieu of Sulfur                          Federal Register
                                   Content Limits of 2.0                   citation].
                                   of this Regulation.
Section 4.0.....................  Sampling and Testing        07/11/2013  7/11/2022, [insert      ..............
                                   Methods and                             Federal Register
                                   Requirements.                           citation].
Section 5.0.....................  Recordkeeping and           07/11/2013  7/11/2022, [insert      ..............
                                   Reporting.                              Federal Register
                                                                           citation].
 
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[FR Doc. 2022-14715 Filed 7-8-22; 8:45 am]
BILLING CODE 6560-50-P


