Air Plan Approval; Delaware; State Implementation Plan for Interstate Transport for the 2008 Ozone Standard, 12669-12673 [2018-05868]
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Federal Register / Vol. 83, No. 57 / Friday, March 23, 2018 / Rules and Regulations
Issued at Washington, DC, on March 19,
2018.
Saint Lawrence Seaway Development
Corporation.
Carrie Lavigne,
Chief Counsel.
[FR Doc. 2018–05904 Filed 3–22–18; 8:45 am]
BILLING CODE P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2013–0408; FRL–9975–85–
Region 3]
Air Plan Approval; Delaware; State
Implementation Plan for Interstate
Transport for the 2008 Ozone Standard
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving a state
implementation plan (SIP) revision
submitted by the State of Delaware. The
Clean Air Act’s (CAA) Good Neighbor
Provision requires EPA and states to
address the interstate transport of air
pollution that affects the ability of
downwind states to attain and maintain
the national ambient air quality
standards (NAAQS). Specifically, the
Good Neighbor Provision requires each
state in its SIP to prohibit emissions that
will significantly contribute to
nonattainment, or interfere with
maintenance, of a NAAQS in a
downwind state. Delaware submitted a
SIP revision on March 23, 2013 that
addresses the interstate transport
requirements for the 2008 ozone
NAAQS. On September 27, 2017, EPA
published a proposed rule and a direct
final rule approving Delaware’s SIP in
regard to the Good Neighbor Provision.
However, EPA received adverse
comments on its September 27, 2017
proposed rule, and subsequently
withdrew the accompanying direct final
rule. After considering the comments,
EPA is approving Delaware’s SIP
revision submittal in regard to the Good
Neighbor Provision for the 2008 ozone
NAAQS in accordance with the
requirements of the CAA.
DATES: This final rule is effective on
April 23, 2018.
ADDRESSES: EPA has established a
docket for this action under Docket ID
Number EPA–R03–OAR–2013–0408. 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,
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SUMMARY:
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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:
Ellen Schmitt, (215) 814–5787, or by
email at schmitt.ellen@epa.gov.
SUPPLEMENTARY INFORMATION: On March
27, 2013, the State of Delaware through
the Delaware Department of Natural
Resources and Environmental Control
(DNREC) submitted a revision to its SIP
to satisfy the requirements of section
110(a)(2), including 110(a)(2)(D)(i)(I), of
the CAA as it relates to the 2008 ozone
NAAQS. On September 27, 2017, EPA
published a notice of proposed
rulemaking (NPR) (82 FR 44984) and an
accompanying direct final rule (DFR)
(82 FR 44932) for the State of Delaware,
approving the portion of the March 27,
2013 Delaware SIP revision addressing
prongs 1 and 2 of the interstate transport
requirements for section
110(a)(2)(D)(i)(I) for the 2008 ozone
NAAQS. EPA received comments on the
proposed rulemaking and the Agency
subsequently withdrew the DFR on
November 20, 2017 (82 FR 55052). This
action responds to the comments
received and finalizes EPA’s approval of
the portion of the March 27, 2013
Delaware SIP revision addressing
section 110(a)(2)(D)(i)(I) of the CAA for
the 2008 ozone NAAQS.
I. Background
On March 12, 2008, EPA revised the
levels of the primary and secondary
ozone standards from 0.08 parts per
million (ppm) to 0.075 ppm (73 FR
16436). The CAA requires states to
submit, within three years after
promulgation of a new or revised
NAAQS, SIP revisions meeting the
applicable elements of sections 110(a)(1)
and (2).1 Several of these applicable
elements are delineated within section
110(a)(2)(D)(i) of the CAA. Section
110(a)(2)(D)(i) generally requires SIPs to
contain adequate provisions to prohibit
in-state emissions activities from having
certain adverse air quality effects on
neighboring states due to interstate
1 SIP revisions that are intended to meet the
requirements of section 110(a) of the CAA are often
referred to as infrastructure SIPs and the elements
under 110(a) are referred to as infrastructure
requirements.
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12669
transport of air pollution. There are four
prongs within section 110(a)(2)(D)(i) of
the CAA; section 110(a)(2)(D)(i)(I)
contains prongs 1 and 2, while section
110(a)(2)(D)(i)(II) includes prongs 3 and
4. This action addresses the first two
prongs, which are also collectively
known as the Good Neighbor Provision.
Pursuant to prongs 1 and 2, a state’s SIP
must contain adequate provisions to
prohibit any source or other type of
emissions activity within the state from
emitting air pollutants that will
‘‘contribute significantly to
nonattainment in, or interfere with
maintenance by, any other state with
respect to any such national primary or
secondary ambient air quality
standard.’’ Under section
110(a)(2)(D)(i)(I) of the CAA, EPA gives
independent significance to the matter
of nonattainment (prong 1) and to that
of maintenance (prong 2).
On March 27, 2013, the State of
Delaware through DNREC submitted a
SIP revision intended to address the
requirements of section 110(a)(2) of the
CAA for the 2008 ozone NAAQS. In this
rulemaking action, EPA is approving
one portion of Delaware’s March 27,
2013 submittal—the portion addressing
prongs 1 and 2 of section
110(a)(2)(D)(i)(I) of the CAA. EPA
previously acted on other portions of
Delaware’s March 27, 2013 SIP
submittal for the 2008 ozone NAAQS.2
To demonstrate that its SIP
adequately addresses interstate
transport for the 2008 ozone NAAQS,
Delaware’s March 27, 2013 submittal
identifies measures in its approved SIP
that cover stationary, mobile, and area
sources of volatile organic compounds
(VOCs) and nitrogen oxides (NOX), both
of which are precursors to ozone.
Delaware’s submittal identifies SIPapproved regulations that reduce VOC
and NOX emissions from a variety of
stationary sources within the State,
including power plants, industrial
boilers, and peaking units. Delaware
states in its submittal that its sources are
generally controlled with best available
control technology (BACT) or lowest
achievable emission rate (LAER) level
controls. Delaware notes that sources
are generally controlled on a unit-byunit basis at costs ranging from $1,300
to $11,000 per ton of NOX reduced.3 To
2 On April 3, 2014 (79 FR 18644), EPA approved
portions of Delaware’s March 27, 2013 submittal for
the 2008 ozone NAAQS addressing the following:
CAA section 110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii),
(E), (F), (G), (H), (J), (K), (L), and (M). In that action,
EPA stated it would take later action on the portion
of the March 27, 2013 SIP submittal addressing
section 110(a)(2)(D)(i)(I) of the CAA.
3 See ‘‘Attachment A,’’ State Submittal—Delaware
Section 110(a)(2) Infrastructure Requirements for
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substantiate its control costs and
feasibility claims, Delaware includes an
assessment of potential additional
control measures on mobile and
stationary sources, including both
electric generating unit (EGU) and nonEGU categories. The assessment
evaluates, for each source or category,
the technical and economic feasibility
for additional NOX and VOC reductions.
For non-EGUs, Delaware could not
identify any cost-effective controls
beyond those already required by the
SIP; estimating that at about $5,000 per
ton of pollutant (VOC, NOX) reduced,
only a small amount of additional
emission reductions would be seen.4 In
its submittal, Delaware identifies the
following Delaware regulations, which
are already included in its approved
SIP: 7 DE Admin. Code 1125 (New
Source Review); 7 DE Admin. Code
1112 (NOX Reasonably Available
Control Technology (RACT)); 7 DE
Admin. Code 1124 (VOC RACT); 7 DE
Admin. Codes 1126 and 1136 (vehicle
inspection and maintenance (I/M)
control measures). In its submittal,
Delaware concludes that it has satisfied
the requirements for section
110(a)(2)(D)(i)(I) of the CAA for the 2008
ozone NAAQS because its sources are
already well controlled for NOX and
VOCs, and because further reductions
beyond the State’s current SIP measures
for NOX and VOCs are not economically
feasible.
II. EPA Analysis
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A. Cross-State Air Pollution Rule
Update
The CAA gives EPA a backstop role,
as appropriate, in the event that states
fail to submit approvable SIPs. On
September 8, 2016, EPA took steps to
effectuate this backstop role with
respect to emissions in 22 eastern states
(not including Delaware) by finalizing
an update to the Cross-State Air
Pollution Rule (CSAPR) ozone season
program that addresses the obligations
of the Good Neighbor Provision for the
2008 ozone NAAQS. 81 FR 74504. The
CSAPR Update established a federal
trading program for affected EGUs to
reduce the interstate transport of ozone
pollution in the May–September ozone
season in the eastern United States, and
thereby help downwind states and
communities meet and maintain the
the 2008 Ozone NAAQS, www.regulations.gov,
Docket number EPA–R03–OAR–2013–0408.
4 In its March 27, 2013 submittal, Delaware stated
that at about $5,000 per ton, the State could reduce
NOX emissions by about 375 tons per year (tpy) and
VOCs by 255 tpy.
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2008 ozone NAAQS.5 The CSAPR
Update uses the same framework EPA
used when developing the original
CSAPR, EPA’s transport rule addressing
the 1997 ozone NAAQS as well as the
1997 and 2006 fine particulate matter
(PM2.5) NAAQS. This framework
establishes the following four-step
process to address the requirements of
the Good Neighbor Provision:
(1) identify downwind receptors that
are expected to have problems attaining
or maintaining the NAAQS;
(2) determine which upwind states
contribute to these identified problems
in amounts sufficient to link them to the
downwind air quality problems;
(3) identify and quantify, for states
linked to downwind air quality
problems, upwind emissions that
significantly contribute to
nonattainment or interfere with
maintenance of a NAAQS; and
(4) reduce the identified upwind
emissions for states that are found to
have emissions that significantly
contribute to nonattainment or interfere
with maintenance of the NAAQS
downwind by adopting permanent and
enforceable measures through a SIP or
by participating in a federal trading
program.
This four-step framework is informed
by cost-effectiveness and feasibility of
controls, emissions, meteorology, and
air quality factors. Notably, the
determination as to whether a linked
state significantly contributes to
nonattainment or interferes with
maintenance of the NAAQS in a
downwind state is made at step 3 based
on a multi-factor evaluation of control
costs, available NOX emission
reductions, and air quality
improvements (including consideration
of potential over-control).6
B. EPA’s Assessment of Delaware in the
CSAPR Update
While EPA’s CSAPR Update analysis
included an assessment of Delaware, the
State was not included in the final
CSAPR Update federal trading program
for EGUs. Nonetheless, the CSAPR
Update includes technical information
and related analysis that can assist EPA
and states with evaluating the
requirements of section 110(a)(2)(D)(i)(I)
of the CAA for the 2008 ozone NAAQS.
5 Ground-level ozone is formed when VOCs and
NOX combine in the presence of sunlight. The rate
of ozone production can be limited by the
availability of either VOCs or NOX. In the case of
the eastern states, ozone reduction has shown to be
more effective by reducing NOX which is why
reducing NOX emissions is the focus of both the
CSAPR Update and this rulemaking action
regarding Delaware.
6 CSAPR Update final rule. 81 FR 74504, 74519
(October 26, 2016).
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In the CSAPR Update, EPA found in
steps 1 and 2 of the four-step framework
that Delaware is linked to a downwind
maintenance receptor in Philadelphia
County, Pennsylvania. 81 FR 74538.
Accordingly, EPA further evaluated
Delaware in step 3 of the framework to
determine whether there were costeffective NOX emission reductions
available from EGUs in the state.
In the CSAPR Update, EPA examined
emission reductions available at various
levels of control stringency, represented
by cost-thresholds of $0 per ton; $800
per ton; $1,400 per ton; $3,400 per ton;
$5,000 per ton; and $6,400 per ton. This
analysis accounted for existing limits on
Delaware EGUs in the State’s March 27,
2013 SIP submittal. Notably, for
Delaware, EPA’s assessment of EGUs’
NOX reduction potential showed no
cost-effective reductions available in
Delaware within the allotted short term
implementation timeframe (by 2017 for
the 2008 ozone NAAQS) at every cost
threshold EPA evaluated because the
Delaware EGUs are already equivalently
controlled. 81 FR at 74553. In addition,
Delaware’s March 27, 2013 submittal
evaluated sources other than EGUs and
the State could not identify any costefficient controls for reducing VOCs or
NOX beyond those already required by
the SIP.
C. Air Quality Assessment Tool
The emission reductions at the
various levels of control stringency
analyzed by EPA could result in air
quality improvements such that
individual receptors drop below the
level of the 2008 ozone NAAQS based
on the cumulative air quality
improvement from the states analyzed.
Therefore, in finalizing the CSAPR
Update, EPA explicitly evaluated
whether the potential emission budgets
evaluated for each state would result in
over-control of upwind state emissions,7
as required by precedents of the
Supreme Court and D.C. Circuit.8
Specifically, EPA evaluated whether at
each level of NOX emission budget, the
identified downwind ozone problems
(i.e., nonattainment or maintenance
problems) are resolved.
In examining emissions contribution
to nonattainment and maintenance
receptors for the 2008 ozone NAAQS,
EPA used the Air Quality Assessment
7 In this rulemaking action, the term ‘‘overcontrol’’ describes the possibility that a state might
be compelled to reduce emissions beyond the point
at which every affected downwind state is projected
to attain and maintain the NAAQS. See EPA v. EME
Homer City Generation, L.P., 134 S. Ct. 2014; EME
Homer City Generation, L.P. v. EPA, 795 F.3d 118,
127 (D.C. Cir. July 28, 2015).
8 Id.
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Tool (AQAT) to estimate the air quality
impacts of the upwind state EGU NOX
emission budgets on downwind ozone
pollution levels for each of the assessed
EGU NOX emission budget levels. EPA
assessed the magnitude of air quality
improvement at each receptor at each
level of control, examined whether
receptors are considered to be resolved,9
and looked at the individual
contributions of emissions from each
state to each of that state’s linked
receptors. EPA also examined each
state’s air quality contributions at each
potential level of control stringency,
assessing whether a state maintained at
least one linkage to a receptor that was
estimated to continue to have
nonattainment or maintenance problems
with the 2008 ozone NAAQS.
As stated in section VI.D. in the
preamble of the final CSAPR Update
and in the Ozone Transport Policy
Analysis Technical Support Document
(TSD) used to support the final CSAPR
Update, EPA’s AQAT assessment
indicates that an emissions budget
reflecting $800 per ton of NOX reduced
would resolve the maintenance problem
at the Philadelphia, Pennsylvania
maintenance receptor (monitor ID
4210100124) to which Delaware was
linked. Thus, EPA estimated that
implementation of the CSAPR Update,
along with NOX controls in Delaware’s
SIP submittal, are anticipated to resolve
the lone downwind receptor to which
Delaware is linked.
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D. Conclusion
In conclusion, when evaluating all the
available information, EPA finds that
Delaware has implemented measures
that have reduced statewide VOC and
NOX emissions and that should
continue to reduce emissions within the
State. The maintenance receptor that
Delaware is linked to in the CSAPR
Update is projected by EPA to have its
maintenance issue resolved with CSAPR
Update implementation 10 and existing
NOX controls in place in Delaware. EPA
further finds Delaware has no costeffective EGU NOX emissions reduction
potential by 2017, beyond what is
already required in Delaware’s SIP, at or
below the maximum $6,400 per ton
cost-threshold evaluated in the CSAPR
Update. Additionally, EPA finds that
9 When the average and maximum design values
of a receptor decrease to values below 76 parts per
billion (ppb) or (0.076 ppm), the nonattainment and
maintenance issues of the receptor would be
considered resolved.
10 EPA notes that the preliminary 2014–2016
design value for the identified CSAPR Update
Philadelphia maintenance site does not reflect the
air quality improvements anticipated as a result of
the CSAPR Update implementation because sources
began compliance with the rule in May 1, 2017.
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Delaware’s non-EGU sources are also
well-controlled and that there is limited
VOC and NOX emissions reduction
potential, beyond what it already
required in the State’s SIP, at and below
a $5,000 per ton cost-threshold. Thus,
EPA finds Delaware has fully satisfied
its obligation with respect to the
requirements of section 110(a)(2)(D)(i)(I)
of the CAA for the 2008 ozone NAAQS,
and EPA is approving the portion of the
March 27, 2013 Delaware SIP submittal
addressing prongs 1 and 2 of the
interstate transport requirements for the
2008 ozone NAAQS.
III. Summary of Public Comments and
EPA Responses
During the comment period, EPA
received several anonymous comments
on the rulemaking. EPA provides
responses to two of these comments,
below. All other comments received
were not specific to this action and thus
are not addressed here.
Comment #1: The first commenter
stated that EPA cannot rely on federal
implementation plans (FIPs) to reduce
the downwind contribution of air
pollution to another state and pointed
out that section 110(a)(2)(D) of the CAA
requires that measures addressing
interstate transport must be approved
into the State’s SIP. The commenter
believes that EPA stated in its DFRN 11
that Delaware has been shown to
significantly contribute to the
Philadelphia receptor, and subsequently
the commenter states that EPA cannot
approve Delaware’s plan because the
necessary measures to reduce interstate
transport of air pollutants to other states
cannot be met without a FIP. Further,
the commenter states that ‘‘the fact that
Delaware is included in the Federal
plan means that EPA has already
determined that the state’s own plan
does not meet the requirement of 110.’’
The commenter asks EPA to reconsider
and disapprove Delaware’s plan until
‘‘such time as Delaware is able to
implement its own plan and that plan
is approved into the SIP.’’
Response: As an initial matter, EPA
disagrees that FIPs are an inappropriate
tool to address the requirements of
section 110(a)(2)(D)(i)(I). Pursuant to
section 110(c), whenever EPA finds that
a state has failed to make a required
submission or disapproves a state’s
submission, the Agency has an
obligation to promulgate a FIP to
address the deficiencies in a state’s
plan, including the requirements of
section 110(a)(2)(D)(i)(I). Since 2005,
EPA has relied on federal trading
programs, such as the Clean Air
11 September
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12671
Interstate Rule (CAIR), its replacement
CSAPR, and the CSAPR Update in order
to reduce the downwind contributions
of air pollution to another state via the
promulgation of FIPs. In 2014, the
United States Supreme Court upheld
CSAPR in EPA v. EME Homer City
Generation, L.P., finding that EPA had
the authority to promulgate a FIP upon
a determination that a state had failed
to make an adequate submission. 134 S.
Ct. 1584, 1601 (2014). Thus, EPA
disagrees with the commenter’s premise
that EPA cannot rely on federal plans to
reduce the downwind contribution of
air pollution to another state in
addressing section 110(a)(2)(D) of the
CAA.
Nonetheless, whether or not EPA may
rely on a FIP to address the
requirements of the Good Neighbor
Provision is irrelevant to EPA’s action
on Delaware’s SIP because its approval
is not contingent on a FIP. EPA did not
promulgate a FIP for Delaware in the
CSAPR Update (the federal plan to
which the commenter presumably
refers). Accordingly, contrary to the
commenter’s assertion, EPA did not
already determine in that rulemaking
that the State’s submittal does not meet
the requirements of section
110(a)(2)(D)(i)(I) of the CAA. Rather,
EPA explicitly stated that it would
further evaluate the state’s compliance
with the Good Neighbor Provision when
it evaluated the State’s SIP in a separate
action. See 81 FR at 74553.
EPA also disagrees with the
commenter’s assertion that EPA stated
in its September 27, 2017 DFR that
Delaware was shown to ‘‘significantly
contribute’’ to the Philadelphia,
Pennsylvania receptor. In fact, as EPA
stated in its DFR and again in this final
notice, the Agency used a four-step
framework to evaluate each state in
order to determine whether the state
will significantly contribute to
nonattainment or interfere with
maintenance of downwind air quality.
While EPA’s analysis did determine that
the Philadelphia monitor/receptor was
expected to have problems attaining or
maintaining the 2008 ozone NAAQS
(step 1 of four-step framework) and that
Delaware was linked to the downwind
air of the Philadelphia receptor (step 2
of the framework), this is not equivalent
to a determination that Delaware will
significantly contribute to
nonattainment or interfere with
maintenance. Rather, this determination
is made at step 3 of the framework and
depends on whether EGUs in the linked
state have available cost-effective NOX
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emission reductions.12 As noted above,
EPA determined that Delaware’s sources
were already being controlled at levels
equivalent to the cost-threshold applied
to linked states in the CSAPR Update,
and therefore had no cost-effective
emission reductions available from
EGUs in the State. Thus, EPA did not
conclude that Delaware significantly
contributes to nonattainment or
interferes with maintenance in the
CSAPR Update and did not involve the
State in a FIP.
Therefore, EPA disagrees with the
commenter that Delaware relies on any
FIP to meet section 110(a)(2)(D) of the
CAA for the 2008 ozone NAAQS, and
the Agency thus disagrees that it should
disapprove Delaware’s plan until ‘‘such
time as Delaware is able to implement
its own plan and that plan is approved
into the SIP.’’ EPA has discussed in
section II of this notice why EPA agrees
with Delaware’s determination in its
March 27, 2013 SIP revision submittal
that the SIP contains the necessary
measures to address prongs 1 and 2 of
the interstate transport requirements for
section 110(a)(2)(D)(i)(I) for the 2008
ozone NAAQS.
Comment: The second commenter
stated that EPA did not address a March
28, 2017 Executive Order regarding the
promotion of energy independence and
economic growth. The Executive Order
required federal agencies to review all
regulations to ensure they do not
impose unnecessary burdens on the
economy.
Response: The March 28, 2017
Executive Order (E.O.) 13 pertains to
reviewing existing regulations, orders,
guidance documents, policies, and any
other similar agency actions
(collectively, agency action) that
potentially burden the development or
use of domestically produced energy
resources, with attention to oil, natural
gas, coal, and nuclear energy. EPA does
not believe that EPA’s regulatory action
to approve Delaware’s SIP submittal is
inconsistent with this E.O. Specifically,
EPA is approving Delaware’s
submission on the grounds that the
controls that it already imposes address
interstate transport of emissions, such
that its sources do not significantly
contribute to nonattainment or interfere
with maintenance in another state. In
12 The Supreme Court held that it was a
permissible interpretation of the statute to
apportion responsibility for states linked to
nonattainment receptors considering ‘‘both the
magnitude of upwind States’ contributions and the
cost associated with eliminating them.’’ EPA v. EME
Homer City Generation, L.P., 134 S. Ct. at 1606.
13 Based on the comment, EPA assumes the E.O.
in question is E.O. 13738, Promoting Energy
Independence and Economic Growth, signed March
28, 2017.
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any event, if a SIP submittal from a state
meets all the requirements of section
110(a)(2) of the CAA, including the
required emission limitations, then
section 110(k)(3) of the CAA requires
that EPA shall approve the SIP
submission. As explained in section II
of this action, the Agency finds that the
Delaware SIP meets the requirements of
section 110(a)(2)(D)(i)(I) of the CAA
with respect to the 2008 ozone NAAQS.
Thus, under the plain language of
section 110(k)(3), EPA must approve the
SIP submission, and cannot disapprove
it based on the March 28, 2017 E.O.
IV. Final Action
EPA is approving the portion of the
March 27, 2013 Delaware SIP revision
addressing prongs 1 and 2 of the
interstate transport requirements for
section 110(a)(2)(D)(i)(I) of the CAA for
the 2008 ozone NAAQS for the reasons
discussed in this rulemaking.
On April 3, 2014 (79 FR 18644), EPA
finalized approval of the following
infrastructure elements or portions
thereof from the March 27, 2013
submittal: CAA section 110(a)(2)(A), (B),
(C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J),
(K), (L), and (M). This action approves
the remaining portions of the March 27,
2013 SIP revision, which address prongs
1 and 2 of section 110(a)(2)(D)(i)(I) of
the CAA, also known as the Good
Neighbor Provision. EPA did not take
action upon these elements in the
Agency’s prior SIP approval action,
published on April 3, 2014 (79 FR
18644).
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.
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• 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.
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12673
Federal Register / Vol. 83, No. 57 / Friday, March 23, 2018 / Rules and Regulations
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
proceedings to enforce its requirements.
(See section 307(b)(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 May 22, 2018. 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,
addressing Delaware’s interstate
transport for the 2008 ozone NAAQS,
may not be challenged later in
List of Subjects in 40 CFR Part 52
Name of non-regulatory SIP
revision
Dated: March 13, 2018.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2017–0342; FRL–9975–86–
Region 3]
Approval and Promulgation of Air
Quality Implementation Plans;
Pennsylvania; Pennsylvania’s
Adoption of Control Techniques
Guidelines for Automobile and LightDuty Truck Assembly Coatings
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving a revision to
the Commonwealth of Pennsylvania’s
state implementation plan (SIP). The
revision includes amendments to the
Pennsylvania Department of
Environmental Protection’s (PADEP)
regulations incorporating the control
techniques guidelines (CTG) for the
automobile and light-duty truck
assembly coatings category and
addresses the requirement to adopt
reasonably available control technology
(RACT) for that category. This action is
amozie on DSK30RV082PROD with RULES
SUMMARY:
VerDate Sep<11>2014
16:24 Mar 22, 2018
Jkt 244001
§ 52.420
*
Identification of plan.
*
*
(e) * * *
*
*
1. The authority citation for part 52
continues to read as follows:
*
[FR Doc. 2018–05868 Filed 3–22–18; 8:45 am]
2. In § 52.420, the table in paragraph
(e) is amended by adding an entry for
‘‘Section 110(a)(2) Infrastructure
Requirements for the 2008 Ozone
NAAQS’’ after the entry for ‘‘Section
110(a)(2) Infrastructure Requirements
for the 2008 Ozone NAAQS’’ (with an
EPA approval date of 4/3/2014) to read
as follows:
■
Applicable geographic or nonattainment area
*
Subpart I—Delaware
■
Environmental protection, Air
pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone,
Volatile organic compounds.
*
*
*
Section 110(a)(2) InfrastrucStatewide ...............................
ture Requirements for the
2008 Ozone NAAQS.
*
Authority: 42 U.S.C. 7401 et seq.
State
submittal
date
*
3/27/13
*
EPA approval date
*
3/23/18 [Insert Federal Register citation].
*
being taken under the Clean Air Act
(CAA).
DATES: This final rule is effective on
April 23, 2018.
ADDRESSES: EPA has established a
docket for this action under Docket ID
Number EPA–R03–OAR–2017–0342. 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:
Joseph Schulingkamp, (215) 814–2021,
or by email at schulingkamp.joseph@
epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Ground level ozone is formed in the
atmosphere by photochemical reactions
between volatile organic compounds
(VOCs), nitrogen oxides (NOX), and
PO 00000
Frm 00017
Fmt 4700
Sfmt 4700
Additional explanation
*
*
*
This action addresses CAA
element 110(a)(2)(D)(i)(I).
*
carbon monoxide (CO) in the presence
of sunlight. In order to reduce ozone
concentrations in the ambient air, the
CAA requires all nonattainment areas to
apply controls on VOC and NOX
emission sources to achieve emission
reductions. Among effective control
measures, RACT controls significantly
reduce VOC and NOX emissions from
major stationary sources. NOX and VOC
are referred to as ozone precursors and
are emitted by many types of pollution
sources, including motor vehicles,
power plants, industrial facilities, and
area wide sources, such as consumer
products and lawn and garden
equipment. Scientific evidence
indicates that adverse public health
effects occur following exposure to
ozone. These effects are more
pronounced in children and adults with
lung disease. Breathing air containing
ozone can reduce lung function and
inflame airways, which can increase
respiratory symptoms and aggravate
asthma or other lung diseases.
RACT is defined as the lowest
emission limitation that a particular
source is capable of meeting by the
application of control technology that is
reasonably available considering
technological and economic feasibility
(44 FR 53761 at 53762, September 17,
1979). Section 182 of the CAA sets forth
two separate RACT requirements for
E:\FR\FM\23MRR1.SGM
23MRR1
]]>Agencies
[Federal Register Volume 83, Number 57 (Friday, March 23, 2018)]
[Rules and Regulations]
[Pages 12669-12673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05868]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2013-0408; FRL-9975-85-Region 3]
Air Plan Approval; Delaware; State Implementation Plan for
Interstate Transport for the 2008 Ozone Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving a state
implementation plan (SIP) revision submitted by the State of Delaware.
The Clean Air Act's (CAA) Good Neighbor Provision requires EPA and
states to address the interstate transport of air pollution that
affects the ability of downwind states to attain and maintain the
national ambient air quality standards (NAAQS). Specifically, the Good
Neighbor Provision requires each state in its SIP to prohibit emissions
that will significantly contribute to nonattainment, or interfere with
maintenance, of a NAAQS in a downwind state. Delaware submitted a SIP
revision on March 23, 2013 that addresses the interstate transport
requirements for the 2008 ozone NAAQS. On September 27, 2017, EPA
published a proposed rule and a direct final rule approving Delaware's
SIP in regard to the Good Neighbor Provision. However, EPA received
adverse comments on its September 27, 2017 proposed rule, and
subsequently withdrew the accompanying direct final rule. After
considering the comments, EPA is approving Delaware's SIP revision
submittal in regard to the Good Neighbor Provision for the 2008 ozone
NAAQS in accordance with the requirements of the CAA.
DATES: This final rule is effective on April 23, 2018.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2013-0408. 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: Ellen Schmitt, (215) 814-5787, or by
email at [email protected].
SUPPLEMENTARY INFORMATION: On March 27, 2013, the State of Delaware
through the Delaware Department of Natural Resources and Environmental
Control (DNREC) submitted a revision to its SIP to satisfy the
requirements of section 110(a)(2), including 110(a)(2)(D)(i)(I), of the
CAA as it relates to the 2008 ozone NAAQS. On September 27, 2017, EPA
published a notice of proposed rulemaking (NPR) (82 FR 44984) and an
accompanying direct final rule (DFR) (82 FR 44932) for the State of
Delaware, approving the portion of the March 27, 2013 Delaware SIP
revision addressing prongs 1 and 2 of the interstate transport
requirements for section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS.
EPA received comments on the proposed rulemaking and the Agency
subsequently withdrew the DFR on November 20, 2017 (82 FR 55052). This
action responds to the comments received and finalizes EPA's approval
of the portion of the March 27, 2013 Delaware SIP revision addressing
section 110(a)(2)(D)(i)(I) of the CAA for the 2008 ozone NAAQS.
I. Background
On March 12, 2008, EPA revised the levels of the primary and
secondary ozone standards from 0.08 parts per million (ppm) to 0.075
ppm (73 FR 16436). The CAA requires states to submit, within three
years after promulgation of a new or revised NAAQS, SIP revisions
meeting the applicable elements of sections 110(a)(1) and (2).\1\
Several of these applicable elements are delineated within section
110(a)(2)(D)(i) of the CAA. Section 110(a)(2)(D)(i) generally requires
SIPs to contain adequate provisions to prohibit in-state emissions
activities from having certain adverse air quality effects on
neighboring states due to interstate transport of air pollution. There
are four prongs within section 110(a)(2)(D)(i) of the CAA; section
110(a)(2)(D)(i)(I) contains prongs 1 and 2, while section
110(a)(2)(D)(i)(II) includes prongs 3 and 4. This action addresses the
first two prongs, which are also collectively known as the Good
Neighbor Provision. Pursuant to prongs 1 and 2, a state's SIP must
contain adequate provisions to prohibit any source or other type of
emissions activity within the state from emitting air pollutants that
will ``contribute significantly to nonattainment in, or interfere with
maintenance by, any other state with respect to any such national
primary or secondary ambient air quality standard.'' Under section
110(a)(2)(D)(i)(I) of the CAA, EPA gives independent significance to
the matter of nonattainment (prong 1) and to that of maintenance (prong
2).
---------------------------------------------------------------------------
\1\ SIP revisions that are intended to meet the requirements of
section 110(a) of the CAA are often referred to as infrastructure
SIPs and the elements under 110(a) are referred to as infrastructure
requirements.
---------------------------------------------------------------------------
On March 27, 2013, the State of Delaware through DNREC submitted a
SIP revision intended to address the requirements of section 110(a)(2)
of the CAA for the 2008 ozone NAAQS. In this rulemaking action, EPA is
approving one portion of Delaware's March 27, 2013 submittal--the
portion addressing prongs 1 and 2 of section 110(a)(2)(D)(i)(I) of the
CAA. EPA previously acted on other portions of Delaware's March 27,
2013 SIP submittal for the 2008 ozone NAAQS.\2\
---------------------------------------------------------------------------
\2\ On April 3, 2014 (79 FR 18644), EPA approved portions of
Delaware's March 27, 2013 submittal for the 2008 ozone NAAQS
addressing the following: CAA section 110(a)(2)(A), (B), (C),
(D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). In
that action, EPA stated it would take later action on the portion of
the March 27, 2013 SIP submittal addressing section
110(a)(2)(D)(i)(I) of the CAA.
---------------------------------------------------------------------------
To demonstrate that its SIP adequately addresses interstate
transport for the 2008 ozone NAAQS, Delaware's March 27, 2013 submittal
identifies measures in its approved SIP that cover stationary, mobile,
and area sources of volatile organic compounds (VOCs) and nitrogen
oxides (NOX), both of which are precursors to ozone.
Delaware's submittal identifies SIP-approved regulations that reduce
VOC and NOX emissions from a variety of stationary sources
within the State, including power plants, industrial boilers, and
peaking units. Delaware states in its submittal that its sources are
generally controlled with best available control technology (BACT) or
lowest achievable emission rate (LAER) level controls. Delaware notes
that sources are generally controlled on a unit-by-unit basis at costs
ranging from $1,300 to $11,000 per ton of NOX reduced.\3\ To
[[Page 12670]]
substantiate its control costs and feasibility claims, Delaware
includes an assessment of potential additional control measures on
mobile and stationary sources, including both electric generating unit
(EGU) and non-EGU categories. The assessment evaluates, for each source
or category, the technical and economic feasibility for additional
NOX and VOC reductions. For non-EGUs, Delaware could not
identify any cost-effective controls beyond those already required by
the SIP; estimating that at about $5,000 per ton of pollutant (VOC,
NOX) reduced, only a small amount of additional emission
reductions would be seen.\4\ In its submittal, Delaware identifies the
following Delaware regulations, which are already included in its
approved SIP: 7 DE Admin. Code 1125 (New Source Review); 7 DE Admin.
Code 1112 (NOX Reasonably Available Control Technology
(RACT)); 7 DE Admin. Code 1124 (VOC RACT); 7 DE Admin. Codes 1126 and
1136 (vehicle inspection and maintenance (I/M) control measures). In
its submittal, Delaware concludes that it has satisfied the
requirements for section 110(a)(2)(D)(i)(I) of the CAA for the 2008
ozone NAAQS because its sources are already well controlled for
NOX and VOCs, and because further reductions beyond the
State's current SIP measures for NOX and VOCs are not
economically feasible.
---------------------------------------------------------------------------
\3\ See ``Attachment A,'' State Submittal--Delaware Section
110(a)(2) Infrastructure Requirements for the 2008 Ozone NAAQS,
www.regulations.gov, Docket number EPA-R03-OAR-2013-0408.
\4\ In its March 27, 2013 submittal, Delaware stated that at
about $5,000 per ton, the State could reduce NOX
emissions by about 375 tons per year (tpy) and VOCs by 255 tpy.
---------------------------------------------------------------------------
II. EPA Analysis
A. Cross-State Air Pollution Rule Update
The CAA gives EPA a backstop role, as appropriate, in the event
that states fail to submit approvable SIPs. On September 8, 2016, EPA
took steps to effectuate this backstop role with respect to emissions
in 22 eastern states (not including Delaware) by finalizing an update
to the Cross-State Air Pollution Rule (CSAPR) ozone season program that
addresses the obligations of the Good Neighbor Provision for the 2008
ozone NAAQS. 81 FR 74504. The CSAPR Update established a federal
trading program for affected EGUs to reduce the interstate transport of
ozone pollution in the May-September ozone season in the eastern United
States, and thereby help downwind states and communities meet and
maintain the 2008 ozone NAAQS.\5\ The CSAPR Update uses the same
framework EPA used when developing the original CSAPR, EPA's transport
rule addressing the 1997 ozone NAAQS as well as the 1997 and 2006 fine
particulate matter (PM2.5) NAAQS. This framework establishes
the following four-step process to address the requirements of the Good
Neighbor Provision:
---------------------------------------------------------------------------
\5\ Ground-level ozone is formed when VOCs and NOX
combine in the presence of sunlight. The rate of ozone production
can be limited by the availability of either VOCs or NOX.
In the case of the eastern states, ozone reduction has shown to be
more effective by reducing NOX which is why reducing
NOX emissions is the focus of both the CSAPR Update and
this rulemaking action regarding Delaware.
---------------------------------------------------------------------------
(1) identify downwind receptors that are expected to have problems
attaining or maintaining the NAAQS;
(2) determine which upwind states contribute to these identified
problems in amounts sufficient to link them to the downwind air quality
problems;
(3) identify and quantify, for states linked to downwind air
quality problems, upwind emissions that significantly contribute to
nonattainment or interfere with maintenance of a NAAQS; and
(4) reduce the identified upwind emissions for states that are
found to have emissions that significantly contribute to nonattainment
or interfere with maintenance of the NAAQS downwind by adopting
permanent and enforceable measures through a SIP or by participating in
a federal trading program.
This four-step framework is informed by cost-effectiveness and
feasibility of controls, emissions, meteorology, and air quality
factors. Notably, the determination as to whether a linked state
significantly contributes to nonattainment or interferes with
maintenance of the NAAQS in a downwind state is made at step 3 based on
a multi-factor evaluation of control costs, available NOX
emission reductions, and air quality improvements (including
consideration of potential over-control).\6\
---------------------------------------------------------------------------
\6\ CSAPR Update final rule. 81 FR 74504, 74519 (October 26,
2016).
---------------------------------------------------------------------------
B. EPA's Assessment of Delaware in the CSAPR Update
While EPA's CSAPR Update analysis included an assessment of
Delaware, the State was not included in the final CSAPR Update federal
trading program for EGUs. Nonetheless, the CSAPR Update includes
technical information and related analysis that can assist EPA and
states with evaluating the requirements of section 110(a)(2)(D)(i)(I)
of the CAA for the 2008 ozone NAAQS. In the CSAPR Update, EPA found in
steps 1 and 2 of the four-step framework that Delaware is linked to a
downwind maintenance receptor in Philadelphia County, Pennsylvania. 81
FR 74538. Accordingly, EPA further evaluated Delaware in step 3 of the
framework to determine whether there were cost-effective NOX
emission reductions available from EGUs in the state.
In the CSAPR Update, EPA examined emission reductions available at
various levels of control stringency, represented by cost-thresholds of
$0 per ton; $800 per ton; $1,400 per ton; $3,400 per ton; $5,000 per
ton; and $6,400 per ton. This analysis accounted for existing limits on
Delaware EGUs in the State's March 27, 2013 SIP submittal. Notably, for
Delaware, EPA's assessment of EGUs' NOX reduction potential
showed no cost-effective reductions available in Delaware within the
allotted short term implementation timeframe (by 2017 for the 2008
ozone NAAQS) at every cost threshold EPA evaluated because the Delaware
EGUs are already equivalently controlled. 81 FR at 74553. In addition,
Delaware's March 27, 2013 submittal evaluated sources other than EGUs
and the State could not identify any cost-efficient controls for
reducing VOCs or NOX beyond those already required by the
SIP.
C. Air Quality Assessment Tool
The emission reductions at the various levels of control stringency
analyzed by EPA could result in air quality improvements such that
individual receptors drop below the level of the 2008 ozone NAAQS based
on the cumulative air quality improvement from the states analyzed.
Therefore, in finalizing the CSAPR Update, EPA explicitly evaluated
whether the potential emission budgets evaluated for each state would
result in over-control of upwind state emissions,\7\ as required by
precedents of the Supreme Court and D.C. Circuit.\8\ Specifically, EPA
evaluated whether at each level of NOX emission budget, the
identified downwind ozone problems (i.e., nonattainment or maintenance
problems) are resolved.
---------------------------------------------------------------------------
\7\ In this rulemaking action, the term ``over-control''
describes the possibility that a state might be compelled to reduce
emissions beyond the point at which every affected downwind state is
projected to attain and maintain the NAAQS. See EPA v. EME Homer
City Generation, L.P., 134 S. Ct. 2014; EME Homer City Generation,
L.P. v. EPA, 795 F.3d 118, 127 (D.C. Cir. July 28, 2015).
\8\ Id.
---------------------------------------------------------------------------
In examining emissions contribution to nonattainment and
maintenance receptors for the 2008 ozone NAAQS, EPA used the Air
Quality Assessment
[[Page 12671]]
Tool (AQAT) to estimate the air quality impacts of the upwind state EGU
NOX emission budgets on downwind ozone pollution levels for
each of the assessed EGU NOX emission budget levels. EPA
assessed the magnitude of air quality improvement at each receptor at
each level of control, examined whether receptors are considered to be
resolved,\9\ and looked at the individual contributions of emissions
from each state to each of that state's linked receptors. EPA also
examined each state's air quality contributions at each potential level
of control stringency, assessing whether a state maintained at least
one linkage to a receptor that was estimated to continue to have
nonattainment or maintenance problems with the 2008 ozone NAAQS.
---------------------------------------------------------------------------
\9\ When the average and maximum design values of a receptor
decrease to values below 76 parts per billion (ppb) or (0.076 ppm),
the nonattainment and maintenance issues of the receptor would be
considered resolved.
---------------------------------------------------------------------------
As stated in section VI.D. in the preamble of the final CSAPR
Update and in the Ozone Transport Policy Analysis Technical Support
Document (TSD) used to support the final CSAPR Update, EPA's AQAT
assessment indicates that an emissions budget reflecting $800 per ton
of NOX reduced would resolve the maintenance problem at the
Philadelphia, Pennsylvania maintenance receptor (monitor ID 4210100124)
to which Delaware was linked. Thus, EPA estimated that implementation
of the CSAPR Update, along with NOX controls in Delaware's
SIP submittal, are anticipated to resolve the lone downwind receptor to
which Delaware is linked.
D. Conclusion
In conclusion, when evaluating all the available information, EPA
finds that Delaware has implemented measures that have reduced
statewide VOC and NOX emissions and that should continue to
reduce emissions within the State. The maintenance receptor that
Delaware is linked to in the CSAPR Update is projected by EPA to have
its maintenance issue resolved with CSAPR Update implementation \10\
and existing NOX controls in place in Delaware. EPA further
finds Delaware has no cost-effective EGU NOX emissions
reduction potential by 2017, beyond what is already required in
Delaware's SIP, at or below the maximum $6,400 per ton cost-threshold
evaluated in the CSAPR Update. Additionally, EPA finds that Delaware's
non-EGU sources are also well-controlled and that there is limited VOC
and NOX emissions reduction potential, beyond what it
already required in the State's SIP, at and below a $5,000 per ton
cost-threshold. Thus, EPA finds Delaware has fully satisfied its
obligation with respect to the requirements of section
110(a)(2)(D)(i)(I) of the CAA for the 2008 ozone NAAQS, and EPA is
approving the portion of the March 27, 2013 Delaware SIP submittal
addressing prongs 1 and 2 of the interstate transport requirements for
the 2008 ozone NAAQS.
---------------------------------------------------------------------------
\10\ EPA notes that the preliminary 2014-2016 design value for
the identified CSAPR Update Philadelphia maintenance site does not
reflect the air quality improvements anticipated as a result of the
CSAPR Update implementation because sources began compliance with
the rule in May 1, 2017.
---------------------------------------------------------------------------
III. Summary of Public Comments and EPA Responses
During the comment period, EPA received several anonymous comments
on the rulemaking. EPA provides responses to two of these comments,
below. All other comments received were not specific to this action and
thus are not addressed here.
Comment #1: The first commenter stated that EPA cannot rely on
federal implementation plans (FIPs) to reduce the downwind contribution
of air pollution to another state and pointed out that section
110(a)(2)(D) of the CAA requires that measures addressing interstate
transport must be approved into the State's SIP. The commenter believes
that EPA stated in its DFRN \11\ that Delaware has been shown to
significantly contribute to the Philadelphia receptor, and subsequently
the commenter states that EPA cannot approve Delaware's plan because
the necessary measures to reduce interstate transport of air pollutants
to other states cannot be met without a FIP. Further, the commenter
states that ``the fact that Delaware is included in the Federal plan
means that EPA has already determined that the state's own plan does
not meet the requirement of 110.'' The commenter asks EPA to reconsider
and disapprove Delaware's plan until ``such time as Delaware is able to
implement its own plan and that plan is approved into the SIP.''
---------------------------------------------------------------------------
\11\ September 27, 2017 (82 FR 44932).
---------------------------------------------------------------------------
Response: As an initial matter, EPA disagrees that FIPs are an
inappropriate tool to address the requirements of section
110(a)(2)(D)(i)(I). Pursuant to section 110(c), whenever EPA finds that
a state has failed to make a required submission or disapproves a
state's submission, the Agency has an obligation to promulgate a FIP to
address the deficiencies in a state's plan, including the requirements
of section 110(a)(2)(D)(i)(I). Since 2005, EPA has relied on federal
trading programs, such as the Clean Air Interstate Rule (CAIR), its
replacement CSAPR, and the CSAPR Update in order to reduce the downwind
contributions of air pollution to another state via the promulgation of
FIPs. In 2014, the United States Supreme Court upheld CSAPR in EPA v.
EME Homer City Generation, L.P., finding that EPA had the authority to
promulgate a FIP upon a determination that a state had failed to make
an adequate submission. 134 S. Ct. 1584, 1601 (2014). Thus, EPA
disagrees with the commenter's premise that EPA cannot rely on federal
plans to reduce the downwind contribution of air pollution to another
state in addressing section 110(a)(2)(D) of the CAA.
Nonetheless, whether or not EPA may rely on a FIP to address the
requirements of the Good Neighbor Provision is irrelevant to EPA's
action on Delaware's SIP because its approval is not contingent on a
FIP. EPA did not promulgate a FIP for Delaware in the CSAPR Update (the
federal plan to which the commenter presumably refers). Accordingly,
contrary to the commenter's assertion, EPA did not already determine in
that rulemaking that the State's submittal does not meet the
requirements of section 110(a)(2)(D)(i)(I) of the CAA. Rather, EPA
explicitly stated that it would further evaluate the state's compliance
with the Good Neighbor Provision when it evaluated the State's SIP in a
separate action. See 81 FR at 74553.
EPA also disagrees with the commenter's assertion that EPA stated
in its September 27, 2017 DFR that Delaware was shown to
``significantly contribute'' to the Philadelphia, Pennsylvania
receptor. In fact, as EPA stated in its DFR and again in this final
notice, the Agency used a four-step framework to evaluate each state in
order to determine whether the state will significantly contribute to
nonattainment or interfere with maintenance of downwind air quality.
While EPA's analysis did determine that the Philadelphia monitor/
receptor was expected to have problems attaining or maintaining the
2008 ozone NAAQS (step 1 of four-step framework) and that Delaware was
linked to the downwind air of the Philadelphia receptor (step 2 of the
framework), this is not equivalent to a determination that Delaware
will significantly contribute to nonattainment or interfere with
maintenance. Rather, this determination is made at step 3 of the
framework and depends on whether EGUs in the linked state have
available cost-effective NOX
[[Page 12672]]
emission reductions.\12\ As noted above, EPA determined that Delaware's
sources were already being controlled at levels equivalent to the cost-
threshold applied to linked states in the CSAPR Update, and therefore
had no cost-effective emission reductions available from EGUs in the
State. Thus, EPA did not conclude that Delaware significantly
contributes to nonattainment or interferes with maintenance in the
CSAPR Update and did not involve the State in a FIP.
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\12\ The Supreme Court held that it was a permissible
interpretation of the statute to apportion responsibility for states
linked to nonattainment receptors considering ``both the magnitude
of upwind States' contributions and the cost associated with
eliminating them.'' EPA v. EME Homer City Generation, L.P., 134 S.
Ct. at 1606.
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Therefore, EPA disagrees with the commenter that Delaware relies on
any FIP to meet section 110(a)(2)(D) of the CAA for the 2008 ozone
NAAQS, and the Agency thus disagrees that it should disapprove
Delaware's plan until ``such time as Delaware is able to implement its
own plan and that plan is approved into the SIP.'' EPA has discussed in
section II of this notice why EPA agrees with Delaware's determination
in its March 27, 2013 SIP revision submittal that the SIP contains the
necessary measures to address prongs 1 and 2 of the interstate
transport requirements for section 110(a)(2)(D)(i)(I) for the 2008
ozone NAAQS.
Comment: The second commenter stated that EPA did not address a
March 28, 2017 Executive Order regarding the promotion of energy
independence and economic growth. The Executive Order required federal
agencies to review all regulations to ensure they do not impose
unnecessary burdens on the economy.
Response: The March 28, 2017 Executive Order (E.O.) \13\ pertains
to reviewing existing regulations, orders, guidance documents,
policies, and any other similar agency actions (collectively, agency
action) that potentially burden the development or use of domestically
produced energy resources, with attention to oil, natural gas, coal,
and nuclear energy. EPA does not believe that EPA's regulatory action
to approve Delaware's SIP submittal is inconsistent with this E.O.
Specifically, EPA is approving Delaware's submission on the grounds
that the controls that it already imposes address interstate transport
of emissions, such that its sources do not significantly contribute to
nonattainment or interfere with maintenance in another state. In any
event, if a SIP submittal from a state meets all the requirements of
section 110(a)(2) of the CAA, including the required emission
limitations, then section 110(k)(3) of the CAA requires that EPA shall
approve the SIP submission. As explained in section II of this action,
the Agency finds that the Delaware SIP meets the requirements of
section 110(a)(2)(D)(i)(I) of the CAA with respect to the 2008 ozone
NAAQS. Thus, under the plain language of section 110(k)(3), EPA must
approve the SIP submission, and cannot disapprove it based on the March
28, 2017 E.O.
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\13\ Based on the comment, EPA assumes the E.O. in question is
E.O. 13738, Promoting Energy Independence and Economic Growth,
signed March 28, 2017.
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IV. Final Action
EPA is approving the portion of the March 27, 2013 Delaware SIP
revision addressing prongs 1 and 2 of the interstate transport
requirements for section 110(a)(2)(D)(i)(I) of the CAA for the 2008
ozone NAAQS for the reasons discussed in this rulemaking.
On April 3, 2014 (79 FR 18644), EPA finalized approval of the
following infrastructure elements or portions thereof from the March
27, 2013 submittal: CAA section 110(a)(2)(A), (B), (C), (D)(i)(II),
(D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). This action
approves the remaining portions of the March 27, 2013 SIP revision,
which address prongs 1 and 2 of section 110(a)(2)(D)(i)(I) of the CAA,
also known as the Good Neighbor Provision. EPA did not take action upon
these elements in the Agency's prior SIP approval action, published on
April 3, 2014 (79 FR 18644).
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.
[[Page 12673]]
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 May 22, 2018. 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, addressing Delaware's interstate transport 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, Nitrogen dioxide, Ozone, Volatile organic compounds.
Dated: March 13, 2018.
Cecil Rodrigues,
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 an
entry for ``Section 110(a)(2) Infrastructure Requirements for the 2008
Ozone NAAQS'' after the entry for ``Section 110(a)(2) Infrastructure
Requirements for the 2008 Ozone NAAQS'' (with an EPA approval date of
4/3/2014) to read as follows:
Sec. 52.420 Identification of plan.
* * * * *
(e) * * *
----------------------------------------------------------------------------------------------------------------
Applicable
Name of non-regulatory SIP geographic or State submittal EPA approval date Additional
revision nonattainment area date explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 110(a)(2) Infrastructure Statewide.......... 3/27/13 3/23/18 [Insert This action
Requirements for the 2008 Ozone Federal Register addresses CAA
NAAQS. citation]. element
110(a)(2)(D)(i)(I)
.
* * * * * * *
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[FR Doc. 2018-05868 Filed 3-22-18; 8:45 am]
BILLING CODE 6560-50-P
