[Federal Register Volume 87, Number 196 (Wednesday, October 12, 2022)]
[Proposed Rules]
[Pages 61555-61557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-22110]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0090; FRL-10222-01-R3]


Air Plan Approval; Delaware; Removal of Excess Emissions 
Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve certain portions of a state implementation plan (SIP) revision 
submitted by the State of Delaware, through the Delaware Department of 
Natural Resources and Environmental Control (DNREC), on November 22, 
2016. The revision was submitted by Delaware in response to a national 
finding of substantial inadequacy and SIP call published on June 12, 
2015, which included certain provisions in the Delaware SIP related to 
excess emissions during startup, shutdown, and malfunction (SSM) 
events. EPA is proposing to approve two specific provisions of the 
submitted SIP revision and proposing to determine that such SIP 
revision corrects some of the deficiencies in Delaware's SIP identified 
in the June 12, 2015, SIP call. EPA plans to act on the remainder of 
the SIP revision in a separate action or actions.

DATES: Written comments must be received on or before November 14, 
2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2017-0090 at www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be confidential business information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Mallory Moser, Planning & 
Implementation Branch (3AD30), Air & Radiation Division, U.S. 
Environmental Protection Agency, Region III, Four Penn Center, 1600 
John F. Kennedy Boulevard, Philadelphia, Pennsylvania 19103. The 
telephone number is (215) 814-2030. Ms. Moser can also be reached via 
electronic mail at [email protected].

[[Page 61556]]


SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'' or 
``our'' is used, it refers to EPA.

I. Background

    On February 22, 2013, the EPA issued a Federal Register notice of 
proposed rulemaking outlining EPA's policy at the time with respect to 
SIP provisions related to periods of SSM. EPA analyzed specific SSM SIP 
provisions and explained how each one either did or did not comply with 
the Clean Air Act (CAA) with regard to excess emission events.\1\ For 
each SIP provision that EPA determined to be inconsistent with the CAA, 
EPA proposed to find that the existing SIP provision was substantially 
inadequate to meet CAA requirements and thus proposed to issue a SIP 
call under CAA section 110(k)(5). On September 17, 2014, EPA issued a 
document supplementing and revising what the Agency had previously 
proposed on February 22, 2013, in light of a D.C. Circuit decision that 
determined the CAA precludes authority of the EPA to create affirmative 
defense provisions applicable to private civil suits. EPA outlined its 
updated policy that affirmative defense SIP provisions are not 
consistent with CAA requirements. EPA proposed in the supplemental 
proposal document to apply its revised interpretation of the CAA to 
specific affirmative defense SIP provisions and proposed SIP calls for 
those provisions where appropriate (79 FR 55920, September 17, 2014).
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    \1\ State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013).
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    On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings 
of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying 
to Excess Emissions During Periods of Startup, Shutdown and 
Malfunction'' (80 FR 33840, June 12, 2015), hereafter referred to as 
the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action clarified, 
restated, and updated EPA's interpretation that SSM exemption and 
affirmative defense SIP provisions are inconsistent with CAA 
requirements. The 2015 SSM SIP Action found that certain SIP provisions 
in 36 states were substantially inadequate to meet CAA requirements and 
issued a SIP call to those states to submit SIP revisions to address 
the inadequacies. EPA established an 18-month deadline by which the 
affected states had to submit such SIP revisions. States were required 
to submit corrective revisions to their SIPs in response to the SIP 
calls by November 22, 2016.
    EPA issued a Memorandum in October 2020 (2020 Memorandum), which 
stated that certain provisions governing SSM periods in SIPs could be 
viewed as consistent with CAA requirements.\2\ Importantly, the 2020 
Memorandum stated that it ``did not alter in any way the determinations 
made in the 2015 SSM SIP Action that identified specific state SIP 
provisions that were substantially inadequate to meet the requirements 
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on 
the SIP call issued to Delaware in 2015. The 2020 Memorandum did, 
however, indicate EPA's intent at the time to review SIP calls that 
were issued in the 2015 SSM SIP Action to determine whether EPA should 
maintain, modify, or withdraw particular SIP calls through future 
agency actions.
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    \2\ October 9, 2020, memorandum ``Inclusion of Provisions 
Governing Periods of Startup, Shutdown, and Malfunctions in State 
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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    On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 
Memorandum and announced EPA's return to the policy articulated in the 
2015 SSM SIP Action (2021 Memorandum).\3\ As articulated in the 2021 
Memorandum, SIP provisions that contain exemptions or affirmative 
defense provisions are not consistent with CAA requirements and, 
therefore, generally are not approvable if contained in a SIP 
submission. This policy approach is intended to ensure that all 
communities and populations, including overburdened communities, 
receive the full health and environmental protections provided by the 
CAA.\4\ The 2021 Memorandum also retracted the prior statement from the 
2020 Memorandum of EPA's plans to review and potentially modify or 
withdraw particular SIP calls. That statement no longer reflects EPA's 
intent. EPA intends to implement the principles laid out in the 2015 
SSM SIP Action as the agency takes action on SIP submissions, including 
this SIP submittal provided in response to the 2015 SIP call.
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    \3\ September 30, 2021, memorandum ``Withdrawal of the October 
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions 
in State Implementation Plans and Implementation of the Prior 
Policy,'' from Janet McCabe, Deputy Administrator.
    \4\ 80 FR 33985, June 12, 2015.
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    With regard to the Delaware SIP, in the 2015 SSM SIP Action, EPA 
determined that the following regulations were substantially inadequate 
to meet CAA requirements (80 FR 33973, June 12, 2015): Title 7 of 
Delaware's Administrative Code (7 DE Admin. Code) 1104 Section 1.5, 7, 
DE Admin. Code 1105 Section 1.7, 7 DE Admin. Code 1108 Section 1.2, 7 
DE Admin. Code 1109 Section 1.4, 7 DE Admin. Code 1114 Section 1.3, 7 
DE Admin. Code 1124 Section 1.4, and 7 DE Admin. Code 1142 Section 
2.3.1.6. These provisions allow for exemptions from otherwise 
applicable SIP emission limitations. The rationale underlying EPA's 
determination that these provisions were substantially inadequate to 
meet CAA requirements, and therefore to issue a SIP call to Delaware to 
remedy the provisions, is detailed in the 2015 SSM SIP Action and the 
accompanying proposals.
    Delaware submitted a SIP revision on November 22, 2016, in response 
to the SIP call issued in the 2015 SSM SIP Action. Delaware's 2016 SIP 
submission addressed all of the SIP provisions identified in the SIP 
call, but this proposed action is only addressing the portion of 
Delaware's submittal that pertains to 7 DE Admin. Code 1124, Section 
1.4 and 7 DE Admin. Code 1142 Section 2.3.1.6. 7 DE Admin. Code 1124 
regulates various coating and non-coating sources of VOCs, while 7 DE 
Admin. Code 1142 controls NOX emissions from industrial 
boilers and process heaters at petroleum refineries. EPA is acting on 
these two provisions first because they are subject to a court ordered 
deadline of February 22, 2023, whereas the remaining provisions have 
court ordered deadlines of June 22, 2023, for a proposed action, and 
October 20, 2023, for a final action. Delaware's 2016 SIP submission 
showed that these two regulatory provisions had been removed from 
Delaware's regulations, and therefore Delaware requested that EPA 
remove these provisions from the Delaware SIP. Delaware's 2016 
submission also notes that the deficiency highlighted in 7 DE Admin. 
Code 1108 Section 1.2 was corrected by a previous SIP revision, which 
was submitted to EPA on July 10, 2013.\5\ In its 2016 submission, 
Delaware also requested that EPA approve revisions to the remaining 
four provisions in the Delaware SIP that were highlighted in the 2015 
SSM SIP Action. EPA will be acting on those revisions under a separate 
action or actions.
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    \5\ EPA approval of the July 10, 2013, SIP submittal on July 11, 
2022. See 87 FR 41074.

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[[Page 61557]]

II. Summary of SIP Revision and EPA Analysis

    EPA is proposing to approve those portions of Delaware's November 
22, 2016, SIP submission addressing 7 DE Admin. Code 1124 Section 1.4 
and 7 DE Admin. Code 1142 Section 2.3.1.6. Delaware's 2016 SIP 
submission shows that these two provisions have been removed from 
Delaware's regulations,\6\ and EPA has confirmed that these two 
provisions are no longer in Delaware's regulations.\7\ Based on 
Delaware's request to remove these sections from the Delaware SIP, EPA 
proposes to find that Delaware's November 22, 2016, SIP revision, for 7 
DE Admin. Code 1124 Section 1.4 and 7 DE Admin. Code 1142 Section 
2.3.1.6 only, is consistent with CAA requirements and addresses two of 
the seven deficiencies that EPA identified in the 2015 SSM SIP Action 
with respect to the Delaware SIP. Delaware's 2016 SIP submission also 
made small, non-substantive style changes to other sections of 7 DE 
Admin. Code 1142, which EPA is proposing to approve. These changes 
consisted of inserting the words ``subsection'' or ``section'' before 
references to specific regulatory provisions to conform to Delaware's 
regulatory style requirements. Also, on July 11, 2022, EPA published a 
Final Rule which removed the SSM provisions contained in 7 DE Admin. 
Code 1108, from the Delaware SIP.\8\ EPA will act on the revisions that 
address the deficiencies in 7 DE Admin. Code 1104 Section 1.5, 7 DE 
Admin. Code 1105 Section 1.7, 7 DE Admin. Code 1109 Section 1.4, and 7 
DE Admin. Code 1114 Section 1.3 in a separate action or actions.
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    \6\ See Appendix A to Delaware's November 21, 2016, SIP 
submission, found in the docket for this action.
    \7\ See www.regulations.delaware.gov/AdminCode/title7/1000/1100/1124.pdf and www.regulations.delaware.gov/AdminCode/title7/1000/1100/1142.pdf.
    \8\ 87 FR 41074.
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III. Proposed Action

    EPA is proposing to approve that portion of Delaware's November 22, 
2016, SIP submission addressing 7 DE Admin. Code 1124 Section 1.4 and 7 
DE Admin. Code 1142 Section 2.3.1.6. These specific provisions have 
been removed from Delaware's regulations and this action is proposing 
to remove these two provisions from the EPA-approved Delaware SIP. EPA 
is further proposing to determine that this portion of Delaware's 2016 
SIP revision corrects two of the seven deficiencies identified in the 
June 12, 2015, SIP call. EPA is not reopening the 2015 SSM SIP Action 
and is only taking comment on whether this SIP revision is consistent 
with CAA requirements and whether it addresses the inadequacies in the 
two specific Delaware SIP provisions (7 DE Admin. Code 1124 Section 1.4 
and 7 DE Admin. Code 1142 Section 2.3.1.6) identified in the 2015 SSM 
SIP Action.

IV. Incorporation by Reference

    In this document, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with the requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference the amendments to 1124, Control of Volatile Organic Compound 
Emissions, and 1142, Specific Emission Control Requirements, in section 
52.420, as explained in Section II of this preamble. EPA has made, and 
will continue to make, these materials generally available through 
www.regulations.gov and at the EPA Region III Office (please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information).

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this proposed action:
    Accordingly, this action merely approves state law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to the requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed rule, which corrects some of the 
deficiencies in Delaware's SIP identified in the June 12, 2015, SIP 
call, does not have tribal implications as specified by Executive Order 
13175 (65 FR 67249, November 9, 2000), because the SIP is not approved 
to apply in Indian country located in the State, and EPA notes that it 
will not impose substantial direct costs on tribal governments or 
preempt tribal law.

List of Subjects in 40 CFR Part 52

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

Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2022-22110 Filed 10-11-22; 8:45 am]
BILLING CODE 6560-50-P


