[Federal Register Volume 84, Number 129 (Friday, July 5, 2019)]
[Rules and Regulations]
[Pages 32068-32072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14360]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2018-0825; FRL-9996-07-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Emissions Statements Rule Certification for the 2008 Ozone 
National Ambient Air Quality Standard

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 formally submitted by the State of 
Delaware. Under section 182 of the Clean Air Act (CAA), states' SIPs 
must require stationary sources in ozone nonattainment areas to report 
annual emissions of nitrogen oxides (NOX) and volatile 
organic compounds (VOC). This SIP revision provides Delaware's 
certification that its existing emissions statements program satisfies 
the emissions statements requirements of the CAA for the 2008 ozone 
National Ambient Air Quality Standards (NAAQS). EPA is approving 
Delaware's emissions statements program certification for the 2008 
ozone NAAQS as a SIP revision in accordance with the requirements of 
the CAA.

DATES: This final rule is effective on August 5, 2019.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2018-0825. 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

[[Page 32069]]

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: Sara Calcinore, 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-
2043. Ms. Calcinore can also be reached via electronic mail at 
calcinore.sara@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    Under the CAA, EPA establishes NAAQS for criteria pollutants in 
order to protect human health and the environment. In response to 
scientific evidence linking ozone exposure to adverse health effects, 
EPA promulgated the first ozone NAAQS, the 0.12 part per million (ppm) 
1-hour ozone NAAQS, in 1979. See 44 FR 8202 (February 8, 1979). The CAA 
requires EPA to review and reevaluate the NAAQS every five years in 
order to consider updated information regarding the effects of the 
criteria pollutants on human health and the environment. On July 18, 
1997, EPA promulgated a revised ozone NAAQS, referred to as the 1997 
ozone NAAQS, of 0.08 ppm averaged over eight hours. See 62 FR 38855. 
This 8-hour ozone NAAQS was determined to be more protective of public 
health than the previous 1979 1-hour ozone NAAQS. In 2008, EPA 
strengthened the 8-hour ozone NAAQS from 0.08 to 0.075 ppm. The 0.075 
ppm standard is referred to as the 2008 ozone NAAQS. See 73 FR 16436 
(March 27, 2008).
    On May 21, 2012 and June 11, 2012, EPA designated nonattainment 
areas for the 2008 ozone NAAQS. 77 FR 30088 and 77 FR 34221. Effective 
July 20, 2012, New Castle County and Sussex County in Delaware were 
designated as marginal nonattainment for the 2008 ozone NAAQS. New 
Castle County was designated as part of the Philadelphia-Wilmington-
Atlantic City, PA-NJ-MD-DE 2008 ozone NAAQS nonattainment area, which 
includes the following counties: New Castle in Delaware; Cecil in 
Maryland; Atlantic, Burlington, Camden, Cape May, Cumberland, 
Gloucester, Mercer, Ocean, and Salem in New Jersey; and Bucks, Chester, 
Delaware, Montgomery, and Philadelphia in Pennsylvania. 40 CFR 81.308, 
81.321, 81.331, and 81.339. Sussex County was designated marginal 
nonattainment as the Seaford 2008 ozone NAAQS nonattainment area, which 
includes only Sussex County. 40 CFR 81.308.
    Section 182 of the CAA identifies plan submission requirements for 
ozone nonattainment areas. Specifically, section 182(a)(3)(B) requires 
that states develop and submit, as a revision to their SIP, rules which 
establish annual reporting requirements for certain stationary sources. 
Sources that are within ozone nonattainment areas must annually report 
the actual emissions of NOX and VOC to the state. However, 
states may waive this reporting requirement for classes or categories 
of stationary sources that emit under 25 tons per year (tpy) of 
NOX or VOC if the state provides an inventory of emissions 
from these classes or categories of sources as required by CAA sections 
172 and 182. See CAA section 182(a)(3)(B)(ii).
    On March 6, 2015, EPA issued a final rule addressing a range of 
nonattainment area SIP requirements for the 2008 ozone NAAQS, including 
the emissions statements requirement of CAA section 182(a)(3)(B) (2015 
final rule). 80 FR 12264. Per the preamble to EPA's 2015 final rule, 
the source emissions statements requirement applies to all areas 
designated nonattainment for the 2008 ozone NAAQS. See 80 FR 12264, 
12291. The preamble to EPA's 2015 final rule also states that most 
areas that are required to have an emissions statements program for the 
2008 ozone NAAQS already have a program in place due to a nonattainment 
designation for an earlier ozone NAAQS. Id. The preamble to EPA's 2015 
final rule states that, ``If an area has a previously approved 
emissions statement rule in force for the 1997 ozone NAAQS or the 1-
hour ozone NAAQS that covers all portions of the nonattainment area for 
the 2008 ozone NAAQS, such rule should be sufficient for purposes of 
the emissions statement requirement for the 2008 ozone NAAQS.'' Id. In 
cases where an existing emissions statements rule is still adequate to 
meet the emissions statements requirement under the 2008 ozone NAAQS, 
states may provide the rationale for that determination to EPA in a 
written statement for approval in the SIP to meet the requirements of 
CAA section 182(a)(3)(B). Id. In this statement, states should identify 
how the emissions statements requirement of CAA section 182(a)(3)(B) 
are met by their existing emissions statement rule. Id.
    In summary, Delaware is required to submit, as a formal revision to 
its SIP, a statement certifying that Delaware's existing emissions 
statements program satisfies the requirements of CAA section 
182(a)(3)(B) and covers Delaware's portions of the Philadelphia-
Wilmington-Atlantic City, PA-NJ-MD-DE 2008 ozone NAAQS nonattainment 
area (i.e. New Castle County) and the Seaford 2008 ozone NAAQS 
nonattainment area (i.e. Sussex County).

II. Summary of SIP Revision and EPA Analysis

    On June 29, 2018, the State of Delaware, through the Delaware 
Department of Natural Resources and Environmental Control (DNREC), 
submitted, as a formal revision to its SIP, a statement certifying that 
Delaware's existing SIP-approved emissions statements program under 7 
DE Administrative Code 1117 Section 7.0 satisfies the emissions 
statements requirement for the 2008 ozone NAAQS.
    On April 9, 2019 (84 FR 14075), EPA published a notice of proposed 
rulemaking (NPRM) for the State of Delaware. In the NPRM, EPA proposed 
to approve, as a SIP revision, Delaware's June 29, 2018 emissions 
statements certification as satisfying the requirements of CAA section 
182(a)(3)(B) for the 2008 ozone NAAQS. The rationale for EPA's proposed 
action can be found in the April 9, 2019 NPRM and will not be restated 
here.

III. Public Comments and EPA Response

    EPA received comments on the April 9, 2019 NPRM from three 
anonymous commenters. EPA received a comment on April 11, 2019 that was 
supportive of EPA's proposed action; EPA is not responding to that 
comment. The other two comments and EPA's responses are discussed 
below. The comments EPA received are included in the docket for this 
action, available online at www.regulations.gov, Docket ID: EPA-R03-
OAR-2018-0825.
    Commenter 1: On April 9, 2019, EPA received an anonymous comment on 
the NPRM. The commenter emphasizes the importance of emissions 
reporting of NOX and VOC in ozone nonattainment areas. The 
commenter expresses concern regarding states' ability to waive the 
emissions reporting requirement ``if they emit under 25 tons per year 
of NOX and/or VOC.'' The commenter states that the purpose 
of emissions reporting is to understand the total amount of emissions 
in a state ``no matter how little they emit'' and suggests that this 
would assist with the identification and resolution of air quality 
problems. The commenter also expresses concern that if a state has 
waived the emissions statements requirements and emissions in a state 
are low at the beginning of the year and

[[Page 32070]]

then increase, it would take a year to identify the increase in 
emissions which may delay potential actions by EPA.
    EPA Response: Section 182(a)(3)(B)(ii) of the CAA permits states to 
waive the emissions statements requirement of CAA section 
183(a)(3)(B)(i) for any class or category of stationary sources which 
emit less than 25 tpy of NOX or VOC if the state provides an 
inventory of emissions from these classes or categories of sources as 
required by CAA sections 172 and 182. As discussed in the NPRM, Section 
7.1 of Delaware's emissions statements provisions under 7 DE 
Administrative Code 1117 Section 7.0 states that Delaware may, with EPA 
approval, ``waive the emissions statements requirements for classes or 
categories of stationary sources with facility-wide actual emissions of 
less than 25 tpy of NOX or VOCs if the class or category is 
included in the base year and periodic ozone SIP emission inventories, 
and the actual emissions were calculated using EPA-approved emission 
factors or other methods acceptable to the EPA.'' This is consistent 
with CAA section 182(a)(3)(B)(ii) and is more stringent than the 
requirements of the CAA as it requires EPA approval to waive the 
emissions statements requirement. Therefore, EPA continues to find that 
Delaware's emissions statements provisions under 7 DE Administrative 
Code 1117 Section 7.0 meet the requirements of CAA section 
182(a)(3)(B)(ii) for the 2008 ozone NAAQS.
    In addition, EPA disagrees with the commenter that permitting 
states to waive the emissions statements requirement for classes or 
categories of sources that emit less than 25 tpy of NOX or 
VOC will prevent EPA from obtaining data regarding a state's total 
emissions of NOX and VOC or delay EPA in identifying 
increases in emissions. As stated previously, states are required by 
CAA section 182(a)(3)(B) to have an emissions reporting program (also 
referred to as an ``emissions statements'' program) requiring sources 
located in ozone nonattainment areas that emit 25 tpy or more of 
NOX or VOC to annually report actual emissions to the State 
(emphasis added). The emissions statements requirement of CAA section 
182(a)(3)(B) is separate from the requirements for the state to submit 
emissions data to EPA. States are required to submit emissions data to 
EPA under the Air Emissions Reporting Rule (AERR). 40 CFR, part 51, 
subpart A.\1\ The AERR requires states to submit to EPA complete and 
comprehensive data on emissions from certain point, nonpoint, onroad, 
and nonroad sources triennially. In addition, the AERR requires annual 
reporting for larger, Type A, point sources.\2\ Pursuant to 40 CFR 
51.20, all anthropogenic stationary sources must be included in the 
emission inventory as either point or nonpoint sources; if a facility's 
emissions are too low to be considered a ``point source'', the 
emissions must be reported as nonpoint sources.\3\ Therefore, the AERR 
provides for the reporting of complete and comprehensive data on a 
state's total emissions of NOX and VOC by the state to EPA. 
While states may use data submitted by sources through their emissions 
statements program to satisfy the AERR, the AERR is separate from the 
emissions statements requirement of CAA section 182(a)(3)(B). 
Therefore, the waiving of a class or category of source from a state's 
emissions statements program does not affect the state's obligation to 
report emissions from these sources to EPA under the AERR.
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    \1\ For more information on the AERR, see ``Emissions Inventory 
Guidance for Implementation of Ozone and Particulate Matter National 
Ambient Air Quality Standards (NAAQS) and Regional Haze 
Regulations,'' May 2017, included in the docket for this rulemaking 
available online at https://www.regulations.gov, Docket ID: EPA-R03-
OAR-2018-0825.
    \2\ The emission thresholds by pollutant for treatment of point 
sources can be found in Table 1 of Appendix A of the AERR at 40 CFR, 
part 51, subpart A.
    \3\ Pursuant to 40 CFR 51.15(b), sources on tribal lands are 
excluded from the AERR.
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    In addition, pursuant to CAA section 182(a)(3)(B)(ii), states may 
only waive the emissions statements requirement for any class or 
category of sources that emit less than 25 tpy of NOX or VOC 
if the state includes that class or category of sources in the base 
year and periodic inventories required by CAA section 172(c)(3), 
182(a)(1), and 182(a)(3)(A) and emissions are calculated using emission 
factors established by EPA or other methods acceptable to EPA (emphasis 
added).\4\ EPA uses the emissions data submitted by the states under 
the AERR to build the National Emissions Inventory (NEI), which in turn 
may be used by the states for their base year and periodic emission 
inventories.\5\ A state's waiver of the emissions statements 
requirement for a class or category of sources that emit less than 25 
tpy of NOX or VOC does not waive the requirement for the 
sources to be captured in the state's emissions inventory. Sources will 
be captured as either point or nonpoint sources in the emission 
inventories regardless of whether a state has waived them from their 
emissions statements program. Therefore, EPA will still have 
comprehensive data on emissions in a state that meets the emissions 
inventory requirements of the CAA. Regarding the concern about data not 
being submitted regularly enough, CAA section 182(a)(3)(B) only 
requires that ``[s]ubsequent statements shall be submitted at least 
every year thereafter.'' Therefore, Delaware's requirement for sources 
to submit emissions statements annually complies with the requirements 
of the CAA.
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    \4\ See ``Draft Guidance on the Implementation of an Emission 
Statement Program'', July 1992, included in the docket for this 
rulemaking available online at https://www.regulations.gov, Docket 
ID: EPA-R03-OAR-2018-0825.
    \5\ The NEI is a comprehensive and detailed estimate of air 
emissions of criteria pollutants, criteria precursors, and hazardous 
air pollutants from air emissions sources. The NEI is released every 
three years based primarily upon data provided by State, Local, and 
Tribal air agencies for sources in their jurisdictions and 
supplemented by data developed by EPA.
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    Commenter 2: EPA received an anonymous comment on April 19, 2019 
inquiring how EPA's proposed action in the April 9, 2019 NPRM will 
affect corporations incorporated in Delaware and if these corporations 
will be required to change their business practices as a result of this 
rulemaking.
    EPA Response: EPA's approval of Delaware's emissions statements 
certification for the 2008 ozone NAAQS will not change the existing 
emission statement requirements for corporations incorporated in 
Delaware. EPA's April 9, 2019 NPRM proposed to approve, as a SIP 
revision, Delaware's certification that the State's existing, SIP-
approved emissions statements provisions under 7 DE Administrative Code 
1117 Section 7.0 continue to satisfy the emissions statements 
requirements of CAA section 182(a)(3)(B) for the 2008 ozone NAAQS. 
Delaware's existing emissions statements provisions were first approved 
by EPA into the Delaware SIP on April 29, 1996 (61 FR 7415) for a 
previous NAAQS and are therefore already effective. EPA's NPRM only 
proposed to find that these existing, unchanged provisions continue to 
satisfy the requirements of CAA section 182(a)(3)(B) for the 2008 ozone 
NAAQS. Because Delaware's emissions statement requirements are 
unchanged, this SIP approval will not add any additional requirements 
for sources in Delaware. Therefore, EPA's approval of Delaware's 
emissions statements certification for the 2008 ozone NAAQS will not 
change the previously applicable emissions statement requirements for 
emission sources located in Delaware and therefore will not likely 
cause sources in Delaware to change their business practices. To the 
extent that the commenter is asking whether

[[Page 32071]]

companies incorporated in Delaware but with facilities outside of 
Delaware that emit NOX or VOC will be affected by Delaware's 
emission statement regulation, the answer is no. Sources outside of 
Delaware will be required to report their emissions of NOX 
and VOC according to the regulations of the state in which that source 
is located.

IV. Final Action

    EPA is approving, as a SIP revision, the State of Delaware's June 
29, 2018 emissions statements certification for the 2008 ozone NAAQS as 
approvable under CAA section 182(a)(3)(B). Delaware's emissions 
statements certification certifies that Delaware's existing SIP-
approved emissions statements program under 7 DE Administrative Code 
1117 Section 7.0 satisfies the requirements of CAA section 182(a)(3)(B) 
for the 2008 ozone NAAQS.

V. 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);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866.
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

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

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 3, 2019. 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 approving Delaware's emissions statements 
certification for the 2008 ozone NAAQS 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 dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: June 24, 2019.
Diana Esher,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended 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, the table in paragraph (e) is amended by adding the 
entry ``Emissions Statements Rule Certification for the 2008 Ozone 
NAAQS'' at the end of the table to read as follows:


Sec.  52.420  Identification of plan.

* * * * *
    (e) * * *

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                                                             State
 Name of  non-regulatory  SIP    Applicable geographic     submittal    EPA approval date        Additional
           revision                      area                date                               explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Emissions Statements Rule       Delaware's portions of      06/29/2018  07/05/2019,        Certification that
 Certification for the 2008      the Philadelphia-                       [Insert Federal    Delaware's SIP-
 Ozone NAAQS.                    Wilmington-Atlantic                     Register           approved regulations
                                 City, PA-NJ-MD-DE                       citation].         under 7 DE
                                 2008 ozone NAAQS                                           Administrative Code
                                 nonattainment area                                         1117 Section 7.0
                                 (i.e. New Castle                                           Emission Statement
                                 County) and the                                            meet the emissions
                                 Seaford 2008 ozone                                         statements
                                 NAAQS nonattainment                                        requirements of CAA
                                 area (i.e. Sussex                                          section 182(a)(3)(B)
                                 County).                                                   for the 2008 ozone
                                                                                            NAAQS.
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[FR Doc. 2019-14360 Filed 7-3-19; 8:45 am]
 BILLING CODE 6560-50-P


