Air Plan Approval; Delaware; Removal of Excess Emissions Provisions, 61555-61557 [2022-22110]
Download as PDF
Federal Register / Vol. 87, No. 196 / Wednesday, October 12, 2022 / Proposed Rules
EPA has made, and will continue to
make, these materials generally
available through www.regulations.gov
and at the EPA Region 4 office (please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of
this preamble for more information).
V. Proposed Action
EPA is proposing to approve changes
to the North Carolina SIP and convert
the conditional approval for element C,
Prong 3, and element J, for the 2015 8hour ozone Infrastructure SIP to a full
approval. Specifically, EPA is proposing
to approve changes to North Carolina
Rules 15A NCAC 02D .0530, Prevention
of Significant Deterioration, and .0544,
Prevention of Significant Deterioration
Requirements for Greenhouse Gases.
jspears on DSK121TN23PROD with PROPOSALS
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
See 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. This action merely proposes to
approve state law as meeting federal
requirements and does not impose
additional requirements beyond those
imposed by state law. For that reason,
this proposed action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically a significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
this action, the Agency will update the SIP table at
40 CFR 52.1770(c) to reflect these exceptions.
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• 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).
The SIP is not approved to apply on
any Indian reservation land or in any
other area where EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the proposed rule does not
have tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), nor will it impose
substantial direct costs on tribal
governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
(Authority: 42 U.S.C. 7401 et seq.)
Dated: September 30, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2022–21655 Filed 10–11–22; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2017–0090; FRL–10222–
01–R3]
Air Plan Approval; Delaware; Removal
of Excess Emissions Provisions
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
certain portions of a state
implementation plan (SIP) revision
submitted by the State of Delaware,
through the Delaware Department of
Natural Resources and Environmental
Control (DNREC), on November 22,
2016. The revision was submitted by
SUMMARY:
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61555
Delaware in response to a national
finding of substantial inadequacy and
SIP call published on June 12, 2015,
which included certain provisions in
the Delaware SIP related to excess
emissions during startup, shutdown,
and malfunction (SSM) events. EPA is
proposing to approve two specific
provisions of the submitted SIP revision
and proposing to determine that such
SIP revision corrects some of the
deficiencies in Delaware’s SIP identified
in the June 12, 2015, SIP call. EPA plans
to act on the remainder of the SIP
revision in a separate action or actions.
Written comments must be
received on or before November 14,
2022.
DATES:
Submit your comments,
identified by Docket ID No. EPA–R03–
OAR–2017–0090 at
www.regulations.gov, or via email to
gordon.mike@epa.gov. For comments
submitted at Regulations.gov, follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. For either manner of
submission, EPA may publish any
comment received to its public docket.
Do not submit electronically any
information you consider to be
confidential business information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. EPA will generally not consider
comments or comment contents located
outside of the primary submission (i.e.,
on the web, cloud, or other file sharing
system). For additional submission
methods, please contact the person
identified in the FOR FURTHER
INFORMATION CONTACT section. For the
full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
www.epa.gov/dockets/commenting-epadockets.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Mallory Moser, Planning &
Implementation Branch (3AD30), Air &
Radiation Division, U.S. Environmental
Protection Agency, Region III, Four
Penn Center, 1600 John F. Kennedy
Boulevard, Philadelphia, Pennsylvania
19103. The telephone number is (215)
814–2030. Ms. Moser can also be
reached via electronic mail at
moser.mallory@epa.gov.
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61556
Federal Register / Vol. 87, No. 196 / Wednesday, October 12, 2022 / Proposed Rules
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SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we’’ or ‘‘our’’ is used, it refers to EPA.
I. Background
On February 22, 2013, the EPA issued
a Federal Register notice of proposed
rulemaking outlining EPA’s policy at
the time with respect to SIP provisions
related to periods of SSM. EPA analyzed
specific SSM SIP provisions and
explained how each one either did or
did not comply with the Clean Air Act
(CAA) with regard to excess emission
events.1 For each SIP provision that
EPA determined to be inconsistent with
the CAA, EPA proposed to find that the
existing SIP provision was substantially
inadequate to meet CAA requirements
and thus proposed to issue a SIP call
under CAA section 110(k)(5). On
September 17, 2014, EPA issued a
document supplementing and revising
what the Agency had previously
proposed on February 22, 2013, in light
of a D.C. Circuit decision that
determined the CAA precludes
authority of the EPA to create
affirmative defense provisions
applicable to private civil suits. EPA
outlined its updated policy that
affirmative defense SIP provisions are
not consistent with CAA requirements.
EPA proposed in the supplemental
proposal document to apply its revised
interpretation of the CAA to specific
affirmative defense SIP provisions and
proposed SIP calls for those provisions
where appropriate (79 FR 55920,
September 17, 2014).
On June 12, 2015, pursuant to CAA
section 110(k)(5), EPA finalized ‘‘State
Implementation Plans: Response to
Petition for Rulemaking; Restatement
and Update of EPA’s SSM Policy
Applicable to SIPs; Findings of
Substantial Inadequacy; and SIP Calls to
Amend Provisions Applying to Excess
Emissions During Periods of Startup,
Shutdown and Malfunction’’ (80 FR
33840, June 12, 2015), hereafter referred
to as the ‘‘2015 SSM SIP Action.’’ The
2015 SSM SIP Action clarified, restated,
and updated EPA’s interpretation that
SSM exemption and affirmative defense
SIP provisions are inconsistent with
CAA requirements. The 2015 SSM SIP
Action found that certain SIP provisions
in 36 states were substantially
inadequate to meet CAA requirements
and issued a SIP call to those states to
submit SIP revisions to address the
inadequacies. EPA established an 181 State Implementation Plans: Response to
Petition for Rulemaking; Findings of Substantial
Inadequacy; and SIP Calls To Amend Provisions
Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction, 78 FR 12460
(February 22, 2013).
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month deadline by which the affected
states had to submit such SIP revisions.
States were required to submit
corrective revisions to their SIPs in
response to the SIP calls by November
22, 2016.
EPA issued a Memorandum in
October 2020 (2020 Memorandum),
which stated that certain provisions
governing SSM periods in SIPs could be
viewed as consistent with CAA
requirements.2 Importantly, the 2020
Memorandum stated that it ‘‘did not
alter in any way the determinations
made in the 2015 SSM SIP Action that
identified specific state SIP provisions
that were substantially inadequate to
meet the requirements of the Act.’’
Accordingly, the 2020 Memorandum
had no direct impact on the SIP call
issued to Delaware in 2015. The 2020
Memorandum did, however, indicate
EPA’s intent at the time to review SIP
calls that were issued in the 2015 SSM
SIP Action to determine whether EPA
should maintain, modify, or withdraw
particular SIP calls through future
agency actions.
On September 30, 2021, EPA’s Deputy
Administrator withdrew the 2020
Memorandum and announced EPA’s
return to the policy articulated in the
2015 SSM SIP Action (2021
Memorandum).3 As articulated in the
2021 Memorandum, SIP provisions that
contain exemptions or affirmative
defense provisions are not consistent
with CAA requirements and, therefore,
generally are not approvable if
contained in a SIP submission. This
policy approach is intended to ensure
that all communities and populations,
including overburdened communities,
receive the full health and
environmental protections provided by
the CAA.4 The 2021 Memorandum also
retracted the prior statement from the
2020 Memorandum of EPA’s plans to
review and potentially modify or
withdraw particular SIP calls. That
statement no longer reflects EPA’s
intent. EPA intends to implement the
principles laid out in the 2015 SSM SIP
Action as the agency takes action on SIP
submissions, including this SIP
submittal provided in response to the
2015 SIP call.
2 October 9, 2020, memorandum ‘‘Inclusion of
Provisions Governing Periods of Startup,
Shutdown, and Malfunctions in State
Implementation Plans,’’ from Andrew R. Wheeler,
Administrator.
3 September 30, 2021, memorandum ‘‘Withdrawal
of the October 9, 2020, Memorandum Addressing
Startup, Shutdown, and Malfunctions in State
Implementation Plans and Implementation of the
Prior Policy,’’ from Janet McCabe, Deputy
Administrator.
4 80 FR 33985, June 12, 2015.
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With regard to the Delaware SIP, in
the 2015 SSM SIP Action, EPA
determined that the following
regulations were substantially
inadequate to meet CAA requirements
(80 FR 33973, June 12, 2015): Title 7 of
Delaware’s Administrative Code (7 DE
Admin. Code) 1104 Section 1.5, 7, DE
Admin. Code 1105 Section 1.7, 7 DE
Admin. Code 1108 Section 1.2, 7 DE
Admin. Code 1109 Section 1.4, 7 DE
Admin. Code 1114 Section 1.3, 7 DE
Admin. Code 1124 Section 1.4, and 7
DE Admin. Code 1142 Section 2.3.1.6.
These provisions allow for exemptions
from otherwise applicable SIP emission
limitations. The rationale underlying
EPA’s determination that these
provisions were substantially
inadequate to meet CAA requirements,
and therefore to issue a SIP call to
Delaware to remedy the provisions, is
detailed in the 2015 SSM SIP Action
and the accompanying proposals.
Delaware submitted a SIP revision on
November 22, 2016, in response to the
SIP call issued in the 2015 SSM SIP
Action. Delaware’s 2016 SIP submission
addressed all of the SIP provisions
identified in the SIP call, but this
proposed action is only addressing the
portion of Delaware’s submittal that
pertains to 7 DE Admin. Code 1124,
Section 1.4 and 7 DE Admin. Code 1142
Section 2.3.1.6. 7 DE Admin. Code 1124
regulates various coating and noncoating sources of VOCs, while 7 DE
Admin. Code 1142 controls NOX
emissions from industrial boilers and
process heaters at petroleum refineries.
EPA is acting on these two provisions
first because they are subject to a court
ordered deadline of February 22, 2023,
whereas the remaining provisions have
court ordered deadlines of June 22,
2023, for a proposed action, and October
20, 2023, for a final action. Delaware’s
2016 SIP submission showed that these
two regulatory provisions had been
removed from Delaware’s regulations,
and therefore Delaware requested that
EPA remove these provisions from the
Delaware SIP. Delaware’s 2016
submission also notes that the
deficiency highlighted in 7 DE Admin.
Code 1108 Section 1.2 was corrected by
a previous SIP revision, which was
submitted to EPA on July 10, 2013.5 In
its 2016 submission, Delaware also
requested that EPA approve revisions to
the remaining four provisions in the
Delaware SIP that were highlighted in
the 2015 SSM SIP Action. EPA will be
acting on those revisions under a
separate action or actions.
5 EPA approval of the July 10, 2013, SIP submittal
on July 11, 2022. See 87 FR 41074.
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II. Summary of SIP Revision and EPA
Analysis
EPA is proposing to approve those
portions of Delaware’s November 22,
2016, SIP submission addressing 7 DE
Admin. Code 1124 Section 1.4 and 7 DE
Admin. Code 1142 Section 2.3.1.6.
Delaware’s 2016 SIP submission shows
that these two provisions have been
removed from Delaware’s regulations,6
and EPA has confirmed that these two
provisions are no longer in Delaware’s
regulations.7 Based on Delaware’s
request to remove these sections from
the Delaware SIP, EPA proposes to find
that Delaware’s November 22, 2016, SIP
revision, for 7 DE Admin. Code 1124
Section 1.4 and 7 DE Admin. Code 1142
Section 2.3.1.6 only, is consistent with
CAA requirements and addresses two of
the seven deficiencies that EPA
identified in the 2015 SSM SIP Action
with respect to the Delaware SIP.
Delaware’s 2016 SIP submission also
made small, non-substantive style
changes to other sections of 7 DE
Admin. Code 1142, which EPA is
proposing to approve. These changes
consisted of inserting the words
‘‘subsection’’ or ‘‘section’’ before
references to specific regulatory
provisions to conform to Delaware’s
regulatory style requirements. Also, on
July 11, 2022, EPA published a Final
Rule which removed the SSM
provisions contained in 7 DE Admin.
Code 1108, from the Delaware SIP.8 EPA
will act on the revisions that address the
deficiencies in 7 DE Admin. Code 1104
Section 1.5, 7 DE Admin. Code 1105
Section 1.7, 7 DE Admin. Code 1109
Section 1.4, and 7 DE Admin. Code
1114 Section 1.3 in a separate action or
actions.
III. Proposed Action
EPA is proposing to approve that
portion of Delaware’s November 22,
2016, SIP submission addressing 7 DE
Admin. Code 1124 Section 1.4 and 7 DE
Admin. Code 1142 Section 2.3.1.6.
These specific provisions have been
removed from Delaware’s regulations
and this action is proposing to remove
these two provisions from the EPAapproved Delaware SIP. EPA is further
proposing to determine that this portion
of Delaware’s 2016 SIP revision corrects
two of the seven deficiencies identified
in the June 12, 2015, SIP call. EPA is not
reopening the 2015 SSM SIP Action and
6 See Appendix A to Delaware’s November 21,
2016, SIP submission, found in the docket for this
action.
7 See www.regulations.delaware.gov/AdminCode/
title7/1000/1100/1124.pdf and
www.regulations.delaware.gov/AdminCode/title7/
1000/1100/1142.pdf.
8 87 FR 41074.
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is only taking comment on whether this
SIP revision is consistent with CAA
requirements and whether it addresses
the inadequacies in the two specific
Delaware SIP provisions (7 DE Admin.
Code 1124 Section 1.4 and 7 DE Admin.
Code 1142 Section 2.3.1.6) identified in
the 2015 SSM SIP Action.
IV. Incorporation by Reference
In this document, EPA is proposing to
include in a final EPA rule regulatory
text that includes incorporation by
reference. In accordance with the
requirements of 1 CFR 51.5, EPA is
proposing to incorporate by reference
the amendments to 1124, Control of
Volatile Organic Compound Emissions,
and 1142, Specific Emission Control
Requirements, in section 52.420, as
explained in Section II of this preamble.
EPA has made, and will continue to
make, these materials generally
available through www.regulations.gov
and at the EPA Region III Office (please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of
this preamble for more information).
V. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this proposed action:
Accordingly, this action merely
approves state law as meeting Federal
requirements and does not impose
additional requirements beyond those
imposed by state law. For that reason,
this proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
PO 00000
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61557
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to the requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this proposed rule, which
corrects some of the deficiencies in
Delaware’s SIP identified in the June 12,
2015, SIP call, does not have tribal
implications as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000), because the SIP is not approved
to apply in Indian country located in the
State, and EPA notes that it will not
impose substantial direct costs on tribal
governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen oxides, Volatile organic
compounds.
Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2022–22110 Filed 10–11–22; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 152
[EPA–HQ–OPP–2019–0701; FRL–7542–04–
OCSPP]
RIN 2070–AK56
Notification of Submission to the
Secretary of Agriculture; Pesticides;
Addition of Chitosan (Including
Chitosan Salts) to the List of Active
Ingredients Permitted in Exempted
Minimum Risk Pesticide Products
Environmental Protection
Agency (EPA).
AGENCY:
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Agencies
[Federal Register Volume 87, Number 196 (Wednesday, October 12, 2022)]
[Proposed Rules]
[Pages 61555-61557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-22110]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2017-0090; FRL-10222-01-R3]
Air Plan Approval; Delaware; Removal of Excess Emissions
Provisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve certain portions of a state implementation plan (SIP) revision
submitted by the State of Delaware, through the Delaware Department of
Natural Resources and Environmental Control (DNREC), on November 22,
2016. The revision was submitted by Delaware in response to a national
finding of substantial inadequacy and SIP call published on June 12,
2015, which included certain provisions in the Delaware SIP related to
excess emissions during startup, shutdown, and malfunction (SSM)
events. EPA is proposing to approve two specific provisions of the
submitted SIP revision and proposing to determine that such SIP
revision corrects some of the deficiencies in Delaware's SIP identified
in the June 12, 2015, SIP call. EPA plans to act on the remainder of
the SIP revision in a separate action or actions.
DATES: Written comments must be received on or before November 14,
2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2017-0090 at www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov, follow
the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be confidential business information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the FOR FURTHER INFORMATION CONTACT section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Mallory Moser, Planning &
Implementation Branch (3AD30), Air & Radiation Division, U.S.
Environmental Protection Agency, Region III, Four Penn Center, 1600
John F. Kennedy Boulevard, Philadelphia, Pennsylvania 19103. The
telephone number is (215) 814-2030. Ms. Moser can also be reached via
electronic mail at [email protected].
[[Page 61556]]
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'' or
``our'' is used, it refers to EPA.
I. Background
On February 22, 2013, the EPA issued a Federal Register notice of
proposed rulemaking outlining EPA's policy at the time with respect to
SIP provisions related to periods of SSM. EPA analyzed specific SSM SIP
provisions and explained how each one either did or did not comply with
the Clean Air Act (CAA) with regard to excess emission events.\1\ For
each SIP provision that EPA determined to be inconsistent with the CAA,
EPA proposed to find that the existing SIP provision was substantially
inadequate to meet CAA requirements and thus proposed to issue a SIP
call under CAA section 110(k)(5). On September 17, 2014, EPA issued a
document supplementing and revising what the Agency had previously
proposed on February 22, 2013, in light of a D.C. Circuit decision that
determined the CAA precludes authority of the EPA to create affirmative
defense provisions applicable to private civil suits. EPA outlined its
updated policy that affirmative defense SIP provisions are not
consistent with CAA requirements. EPA proposed in the supplemental
proposal document to apply its revised interpretation of the CAA to
specific affirmative defense SIP provisions and proposed SIP calls for
those provisions where appropriate (79 FR 55920, September 17, 2014).
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\1\ State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013).
---------------------------------------------------------------------------
On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized
``State Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings
of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying
to Excess Emissions During Periods of Startup, Shutdown and
Malfunction'' (80 FR 33840, June 12, 2015), hereafter referred to as
the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action clarified,
restated, and updated EPA's interpretation that SSM exemption and
affirmative defense SIP provisions are inconsistent with CAA
requirements. The 2015 SSM SIP Action found that certain SIP provisions
in 36 states were substantially inadequate to meet CAA requirements and
issued a SIP call to those states to submit SIP revisions to address
the inadequacies. EPA established an 18-month deadline by which the
affected states had to submit such SIP revisions. States were required
to submit corrective revisions to their SIPs in response to the SIP
calls by November 22, 2016.
EPA issued a Memorandum in October 2020 (2020 Memorandum), which
stated that certain provisions governing SSM periods in SIPs could be
viewed as consistent with CAA requirements.\2\ Importantly, the 2020
Memorandum stated that it ``did not alter in any way the determinations
made in the 2015 SSM SIP Action that identified specific state SIP
provisions that were substantially inadequate to meet the requirements
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on
the SIP call issued to Delaware in 2015. The 2020 Memorandum did,
however, indicate EPA's intent at the time to review SIP calls that
were issued in the 2015 SSM SIP Action to determine whether EPA should
maintain, modify, or withdraw particular SIP calls through future
agency actions.
---------------------------------------------------------------------------
\2\ October 9, 2020, memorandum ``Inclusion of Provisions
Governing Periods of Startup, Shutdown, and Malfunctions in State
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
---------------------------------------------------------------------------
On September 30, 2021, EPA's Deputy Administrator withdrew the 2020
Memorandum and announced EPA's return to the policy articulated in the
2015 SSM SIP Action (2021 Memorandum).\3\ As articulated in the 2021
Memorandum, SIP provisions that contain exemptions or affirmative
defense provisions are not consistent with CAA requirements and,
therefore, generally are not approvable if contained in a SIP
submission. This policy approach is intended to ensure that all
communities and populations, including overburdened communities,
receive the full health and environmental protections provided by the
CAA.\4\ The 2021 Memorandum also retracted the prior statement from the
2020 Memorandum of EPA's plans to review and potentially modify or
withdraw particular SIP calls. That statement no longer reflects EPA's
intent. EPA intends to implement the principles laid out in the 2015
SSM SIP Action as the agency takes action on SIP submissions, including
this SIP submittal provided in response to the 2015 SIP call.
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\3\ September 30, 2021, memorandum ``Withdrawal of the October
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions
in State Implementation Plans and Implementation of the Prior
Policy,'' from Janet McCabe, Deputy Administrator.
\4\ 80 FR 33985, June 12, 2015.
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With regard to the Delaware SIP, in the 2015 SSM SIP Action, EPA
determined that the following regulations were substantially inadequate
to meet CAA requirements (80 FR 33973, June 12, 2015): Title 7 of
Delaware's Administrative Code (7 DE Admin. Code) 1104 Section 1.5, 7,
DE Admin. Code 1105 Section 1.7, 7 DE Admin. Code 1108 Section 1.2, 7
DE Admin. Code 1109 Section 1.4, 7 DE Admin. Code 1114 Section 1.3, 7
DE Admin. Code 1124 Section 1.4, and 7 DE Admin. Code 1142 Section
2.3.1.6. These provisions allow for exemptions from otherwise
applicable SIP emission limitations. The rationale underlying EPA's
determination that these provisions were substantially inadequate to
meet CAA requirements, and therefore to issue a SIP call to Delaware to
remedy the provisions, is detailed in the 2015 SSM SIP Action and the
accompanying proposals.
Delaware submitted a SIP revision on November 22, 2016, in response
to the SIP call issued in the 2015 SSM SIP Action. Delaware's 2016 SIP
submission addressed all of the SIP provisions identified in the SIP
call, but this proposed action is only addressing the portion of
Delaware's submittal that pertains to 7 DE Admin. Code 1124, Section
1.4 and 7 DE Admin. Code 1142 Section 2.3.1.6. 7 DE Admin. Code 1124
regulates various coating and non-coating sources of VOCs, while 7 DE
Admin. Code 1142 controls NOX emissions from industrial
boilers and process heaters at petroleum refineries. EPA is acting on
these two provisions first because they are subject to a court ordered
deadline of February 22, 2023, whereas the remaining provisions have
court ordered deadlines of June 22, 2023, for a proposed action, and
October 20, 2023, for a final action. Delaware's 2016 SIP submission
showed that these two regulatory provisions had been removed from
Delaware's regulations, and therefore Delaware requested that EPA
remove these provisions from the Delaware SIP. Delaware's 2016
submission also notes that the deficiency highlighted in 7 DE Admin.
Code 1108 Section 1.2 was corrected by a previous SIP revision, which
was submitted to EPA on July 10, 2013.\5\ In its 2016 submission,
Delaware also requested that EPA approve revisions to the remaining
four provisions in the Delaware SIP that were highlighted in the 2015
SSM SIP Action. EPA will be acting on those revisions under a separate
action or actions.
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\5\ EPA approval of the July 10, 2013, SIP submittal on July 11,
2022. See 87 FR 41074.
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[[Page 61557]]
II. Summary of SIP Revision and EPA Analysis
EPA is proposing to approve those portions of Delaware's November
22, 2016, SIP submission addressing 7 DE Admin. Code 1124 Section 1.4
and 7 DE Admin. Code 1142 Section 2.3.1.6. Delaware's 2016 SIP
submission shows that these two provisions have been removed from
Delaware's regulations,\6\ and EPA has confirmed that these two
provisions are no longer in Delaware's regulations.\7\ Based on
Delaware's request to remove these sections from the Delaware SIP, EPA
proposes to find that Delaware's November 22, 2016, SIP revision, for 7
DE Admin. Code 1124 Section 1.4 and 7 DE Admin. Code 1142 Section
2.3.1.6 only, is consistent with CAA requirements and addresses two of
the seven deficiencies that EPA identified in the 2015 SSM SIP Action
with respect to the Delaware SIP. Delaware's 2016 SIP submission also
made small, non-substantive style changes to other sections of 7 DE
Admin. Code 1142, which EPA is proposing to approve. These changes
consisted of inserting the words ``subsection'' or ``section'' before
references to specific regulatory provisions to conform to Delaware's
regulatory style requirements. Also, on July 11, 2022, EPA published a
Final Rule which removed the SSM provisions contained in 7 DE Admin.
Code 1108, from the Delaware SIP.\8\ EPA will act on the revisions that
address the deficiencies in 7 DE Admin. Code 1104 Section 1.5, 7 DE
Admin. Code 1105 Section 1.7, 7 DE Admin. Code 1109 Section 1.4, and 7
DE Admin. Code 1114 Section 1.3 in a separate action or actions.
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\6\ See Appendix A to Delaware's November 21, 2016, SIP
submission, found in the docket for this action.
\7\ See www.regulations.delaware.gov/AdminCode/title7/1000/1100/1124.pdf and www.regulations.delaware.gov/AdminCode/title7/1000/1100/1142.pdf.
\8\ 87 FR 41074.
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III. Proposed Action
EPA is proposing to approve that portion of Delaware's November 22,
2016, SIP submission addressing 7 DE Admin. Code 1124 Section 1.4 and 7
DE Admin. Code 1142 Section 2.3.1.6. These specific provisions have
been removed from Delaware's regulations and this action is proposing
to remove these two provisions from the EPA-approved Delaware SIP. EPA
is further proposing to determine that this portion of Delaware's 2016
SIP revision corrects two of the seven deficiencies identified in the
June 12, 2015, SIP call. EPA is not reopening the 2015 SSM SIP Action
and is only taking comment on whether this SIP revision is consistent
with CAA requirements and whether it addresses the inadequacies in the
two specific Delaware SIP provisions (7 DE Admin. Code 1124 Section 1.4
and 7 DE Admin. Code 1142 Section 2.3.1.6) identified in the 2015 SSM
SIP Action.
IV. Incorporation by Reference
In this document, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with the requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference the amendments to 1124, Control of Volatile Organic Compound
Emissions, and 1142, Specific Emission Control Requirements, in section
52.420, as explained in Section II of this preamble. EPA has made, and
will continue to make, these materials generally available through
www.regulations.gov and at the EPA Region III Office (please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section of
this preamble for more information).
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this proposed action:
Accordingly, this action merely approves state law as meeting
Federal requirements and does not impose additional requirements beyond
those imposed by state law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to the requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule, which corrects some of the
deficiencies in Delaware's SIP identified in the June 12, 2015, SIP
call, does not have tribal implications as specified by Executive Order
13175 (65 FR 67249, November 9, 2000), because the SIP is not approved
to apply in Indian country located in the State, and EPA notes that it
will not impose substantial direct costs on tribal governments or
preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Volatile
organic compounds.
Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2022-22110 Filed 10-11-22; 8:45 am]
BILLING CODE 6560-50-P