Approval and Promulgation of Air Quality Implementation Plans; Delaware; Reasonably Available Control Technology (RACT) State Implementation Plan (SIP) Under the 2008 Ozone National Ambient Air Quality Standard (NAAQS)

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. This revision pertains to reasonably available control technology (RACT) requirements under the 2008 8-hour ozone national ambient air quality standard (NAAQS). Delaware's submittal for RACT for the 2008 ozone NAAQS includes certification that, for certain categories of sources, RACT controls approved by EPA into Delaware's SIP for previous ozone NAAQS are based on currently available technically and economically feasible controls and continue to represent RACT for 2008 8-hour ozone NAAQS implementation purposes; the adoption of new or more stringent regulations or controls that represent RACT control levels for certain other categories of sources; and a negative declaration that certain categories of sources do not exist in Delaware. EPA is approving these revisions to the Delaware SIP addressing 2008 8-hour ozone RACT in accordance with the requirements of the Clean Air Act (CAA).

DATES:

This final rule is effective on January 8, 2018.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2015-0656. All documents in the docket are listed on the https://www.regulations.gov Web site. 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:

Leslie Jones Doherty, (215) 814-3409, or by email at jones.leslie@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

On September 12, 2017 (82 FR 42767), EPA published a notice of proposed rulemaking (NPR) for the State of Delaware. In the NPR, EPA proposed approval of Delaware's SIP revision pertaining to the RACT requirements under the 2008 8-hour ozone NAAQS. The formal SIP revision was submitted by Delaware on May 4, 2015.

II. Summary of SIP Revision and EPA Analysis

A. RACT

On May 4, 2015, Delaware submitted a SIP revision to address all the requirements of RACT set forth by the CAA under the 2008 8-hour ozone NAAQS (the 2015 RACT Submission). Specifically, Delaware's 2015 RACT Submission includes: (1) A certification that for certain categories of sources previously adopted nitrogen oxide (NO_X) and volatile organic compound (VOC) RACT controls in Delaware's SIP that were approved by EPA under the 1979 1-hour and 1997 8-hour ozone NAAQS are based on the currently available technically and economically feasible controls, and continue to represent RACT for implementation of the 2008 8-hour ozone NAAQS; (2) the adoption of new or more stringent regulations or controls that represent RACT control levels for certain categories of sources; and (3) a negative declaration that certain control technique guidelines (CTGs) or non-CTG major sources of VOC and NO_X sources do not exist in Delaware.

EPA has reviewed Delaware's 2015 RACT Submission and finds Delaware's certification of the RACT regulations for major sources of VOC and NO_X previously approved by EPA for the 1-hour and 1997 8-hour ozone NAAQS continue to represent RACT-level controls for the source categories for the 2008 8-hour ozone NAAQS. EPA finds that Delaware's major stationary source VOC and NO_X regulations represent the lowest emission limits based on currently available and economically feasible control technology for these source categories. EPA also finds that Delaware's SIP implements RACT with respect to all sources of VOCs covered by a CTG issued prior to July 20, 2014 and all major stationary sources of VOC and NO_X via Delaware's regulations and case-by-case RACT. EPA accepts Delaware's negative declarations that the following VOC CTG source categories do not exist in Delaware: Manufacture of pneumatic rubber tires; wood furniture manufacturing operations; shipbuilding and ship repair operations (surface coating); and fiberglass boat manufacturing materials. EPA's review indicates that Delaware's 2015 RACT Submission meets the RACT requirements for the 2008 8-hour ozone NAAQS for applicable CTG source categories and major stationary sources of VOC and NO_X to address sections 182(b), 182(f) and 184(b)(2) of the CAA.

With respect to the previous case by case RACT determinations submitted by Delaware and approved by EPA for the Delaware SIP, the CAA section 110(l) states “The Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (RFP) or any applicable requirement of the CAA.” EPA finds that the removal of the emission limits for (1) the Polyhydrate Alcohol Catalyst Regenerative process SPI Polyols, Incorporated, (2) the sulfuric acid process and inter-stage absorption system at General Chemical Corporation and (3) the metallic nitrite process at General Chemical Corporation from the Delaware SIP will not interfere with attainment of any NAAQS or with RFP or any applicable requirement of the CAA because these sources have permanently shut down and thus emissions have been completely eliminated. EPA finds the NO_X RACT determination for CitiSteel USA, Incorporated, Electric Arc Furnace (EAF) continues to represent the lowest emission limitation that is reasonably available considering technological and economic feasibility for this source. With respect to the Fluid-Coking Unit (FCU) and Fluid Catalytic Cracking Unit (FCCU) at the Delaware City Refinery Company, EPA finds that the emission limits, compliance requirements and recordkeeping and reporting requirements established by Delaware represent RACT level of control for these units.

Other specific requirements of Delaware's SIP submission addressing 2008 8-hour ozone RACT and the rationale for EPA's proposed action are explained in the NPR and technical support document (TSD) and will not be restated here.

B. RACT and the EPA Startup, Shutdown, and Malfunction (SSM) SIP Call

On May 22, 2015, the EPA Administrator signed a final action, EPA's SSM SIP Call (formally, the “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 33839. As discussed in the NPR, Delaware relies upon both Regulation 1124 and Regulation 1142 to meet its RACT obligations for the 2008 ozone NAAQS. Therefore, our review of the Delaware 2015 RACT Submission necessarily included our review of Regulation 1124 and 1142, which were subject to EPA's SSM SIP Call because at the time EPA found that the provisions gave the State discretion to create exemptions allowing excess emissions during startup and shutdown. In 2016, Delaware revised Regulations 1124 and 1142 in the State law to remove the provisions identified by EPA in EPA's SSM SIP Call, and Delaware subsequently submitted, on November 21, 2016, a SIP revision to address EPA's SSM SIP Call for Regulation 1124 (subsection 1.4) and Regulation 1142 (subsection 2.3.1.6). EPA has not yet taken final action on that submittal; any action on Delaware's November 21, 2016 SSM SIP revision would be done through a separate rulemaking action.

As stated in the NPR, the EPA is actively reviewing the SSM SIP Call. Therefore, in the NPR, EPA proposed to approve the 2015 RACT Submission under two alternative bases.

EPA proposed to approve Delaware's 2015 RACT Submission on the basis that either (1) a change in EPA's SSM policy and withdrawal of the SSM SIP Call as to Delaware Regulations 1124 and 1142 would occur, or (2) a separate final rulemaking action approving the revised versions of Regulations 1124 and 1142 as revised in Delaware's response to the SSM SIP Call would occur. Under either basis, EPA proposed to find that Delaware's 2015 RACT Submission is fully consistent with CAA requirements for RACT. EPA was clear that either alternative basis for approval of the Delaware RACT assumed a separate Agency action. EPA did not propose to effectuate either action in this rulemaking. Therefore, EPA did not consider those issues open for public comment as part of this rulemaking action. Any comments filed on this rulemaking that relate to the possibility of EPA changing the SSM Guidance generally, a possible withdrawal of EPA's SSM SIP Call as to Delaware Regulations 1124 and 1142, or a possible action by EPA on Delaware's SIP submittal in response to the SSM SIP call are outside the scope of this rulemaking, which is limited to EPA's action on Delaware's 2015 RACT Submission.

In the proposal, EPA made clear that under either alternative scenario regarding the SSM SIP Call, EPA would deem approval of Delaware's RACT SIP appropriate. Therefore, although EPA has not yet taken separate action related to the SSM SIP Call (to either withdraw the SIP Call as to Regulations 1124 and 1142 or to act on Delaware's SSM SIP submittal), we are approving today Delaware's 2015 RACT Submission because it meets RACT requirements under the CAA for the 2008 8-hour ozone NAAQS for the reasons discussed herein and as proposed in the NPR and in the TSD for this rulemaking. We do not believe the SSM SIP Call prevents our final approval of the 2015 RACT Submission as it otherwise meets all CAA RACT requirements. First, as discussed in the NPR, because EPA is reviewing the SSM SIP Call, if EPA later withdraws portions that apply to Delaware's regulations, the regulations Delaware relies upon for RACT in Regulations 1124 and 1142 fully meet CAA requirements including requirements for emission limitations as well as RACT in sections 110, 172, 182 and 184 of the CAA. Alternatively, if EPA concludes its review and implements the SSM SIP Call, Delaware has already submitted a SIP revision in November 2016 that comprises revised versions of Regulations 1124 and 1142 that lack the director discretion provisions that EPA said in the SSM SIP Call were inconsistent with the CAA. EPA is approving the 2015 RACT Submission because, under the first scenario, if EPA withdraws its SSM SIP Call with respect to Delaware, Delaware's regulations in the SIP would be in compliance with CAA requirements, and, under the second scenario, if EPA continues to implement the SSM SIP Call, Delaware has either already submitted a revision complying with CAA requirements or, to the extent EPA determines that the already submitted revision is inadequate, Delaware will be required to submit a new or supplemental revision to address any deficiencies.

III. Public Comments and EPA's Responses

EPA received adverse public comments on the NPR. EPA has summarized the comments and provides responses to the adverse comments below. All other comments received were not specific to this action and thus are not addressed here.

Comment: One comment received from the SSM Coalition states that the CAA does not require nor authorize the EPA to declare SIPs to be inadequate due to provisions exempting or providing alternative requirements during periods of startup, shutdown or malfunction. The commenter notes that the EPA's SSM SIP Call rule states that the “SSM SIP Policy” is not binding on EPA and thus constitutes guidance. As guidance, this SSM Policy as of 2015 does not bind the states, the EPA nor other parties, but it does reflect the EPA's interpretation of CAA statutory requirements. The commenter refers to comments it previously filed on EPA's SSM SIP Call rulemaking. The commenter states EPA is free to approve the Delaware RACT provisions without first acting on provisions identified in the SSM SIP Call as the commenter asserts the state has the discretion to include SSM provisions in its SIP. The commenter also stated EPA should revise its SSM SIP policy and withdraw the SSM SIP Call as to Delaware before approving the 2015 RACT Submission.

Response: As EPA stated in the NPR, any comments filed on this rulemaking that relate to the possibility of EPA changing the SSM Guidance generally or a possible withdrawal of EPA's SSM SIP Call as to Delaware Regulations 1124 and 1142 are outside the scope of this rulemaking, which is limited to EPA's action on Delaware's 2015 RACT Submission. Any EPA action to either withdraw the SSM SIP Call as to Delaware Regulations 1124 and 1142 or act on Delaware's SSM SIP submittal will be a separate Agency action.

Comment: Two commenters, the Environmental Integrity Project (EIP) and an anonymous commenter, state that the Delaware provisions identified in EPA's SSM SIP Call contain impermissible exemptions to emission limitations under the CAA and, therefore, must be corrected before EPA can approve the Delaware 2015 RACT Submission. Commenters argue that approving the Delaware regulations as RACT with SSM exemptions in them violates the CAA requirement that SIPs include enforceable limitations which must apply at all times. Specifically, CAA sections 110(a)(2)(A) and 302(k) require SIPs to include enforceable emission limitations, which must apply on a continuous basis. Contrary to these requirements, the provisions in Delaware Regulations 1124 and 1142 give Delaware unbounded discretion to allow exemptions from SIP limits and therefore would not be emissions limitations that apply on a “continuous” basis. These provisions also interfere with the applicable requirements of the CAA because they allow Delaware to alter SIP limits through a process that is contrary to CAA section 110(i). Section 110(i) provides that revisions to SIP provisions take place through specified routes, including formal SIP revision processes. The provisions in Delaware Regulations 1124 and 1142, however, allow the state to alter the SIP limits through a permit process that does not fall into any of the allowed routes for SIP revision under section110(i) and does not require EPA approval. Similarly, the commenter states that the SSM exemptions in Regulations 1124 and 1142 are contrary to the CAA requirements for nonattainment areas in that section 172(c)(6) of the CAA requires nonattainment SIP provisions to include enforceable emission limitations to provide for attainment of the NAAQS, and these limitations required for nonattainment areas by CAA section 172 must also apply on a continuous basis and be enforceable to also meet CAA section 110(a)(2) requirements. The commenter asserted EPA made no claim that the Delaware provisions which include SSM provisions constitute RACT. Lastly, the commenter states that EPA's approval of the 2015 RACT Submission would be otherwise arbitrary and capricious as the SSM provisions in Delaware Regulations 1124 and 1142 would undermine enforcement of emissions limitations by EPA or citizens as the Delaware provisions identified in the SSM SIP Call would create alternative limits which are not enforceable or would interfere with CAA requirements for continuous emission limitations. The commenter asserts that emission limitations or exemptions from limits established outside the SIP revision process would interfere with attainment and maintenance of the NAAQS and thus with air quality in Delaware. The commenter asserts that if EPA approves the 2015 RACT Submission, EPA must acknowledge its departure from the SSM SIP Call and SSM policy and explain its position; otherwise, action approving the Delaware 2015 RACT Submission would be arbitrary and capricious. Finally, the commenter stated EPA cannot approve the Delaware regulations as meeting RACT while these regulations were found impermissible under the SSM SIP Call on either the hope SSM policy is changed or on the assumption Delaware's SSM November 2016 SIP revision is adequate. The commenter supports this statement because portions of Delaware Regulations 1124 and 1142 were found “substantially inadequate” to meet CAA requirements which would include RACT. The commenter says EPA assuming Delaware's November 2016 SIP revision addressing SSM provisions is adequate would preclude public participation and predetermines the outcome of rulemaking on that SIP. The commenter said EPA must first resolve SSM policy before approving the 2015 RACT Submission or address SSM policy before acting and take action on the November 2016 SIP revision addressing the SSM SIP Call.

Response: EPA notes that commenters' statements are repeating arguments made in support of the SSM SIP Call. As stated previously, such comments relating to the SSM SIP Call and its statutory and policy basis in accordance with the CAA are outside the scope of this rulemaking. EPA's action here is limited to EPA's action on Delaware's 2015 RACT Submission. EPA explained above how we are approving the 2015 RACT Submission with the provisions which were identified in the SSM SIP Call as we find the Delaware regulations address RACT and CAA requirements for emission limitations. Thus, we disagree with the commenter that we cannot approve this 2015 RACT Submission without first “settling” SSM policy issues. If EPA, after concluding its reviewing of the SSM SIP Call, acts to withdraw the SSM SIP Call, then no further action is needed for the versions of Regulation 1124 and 1142 in the Delaware SIP as the Delaware regulations fully address RACT for 2008 ozone. If EPA after its review continues implementing the SSM SIP Call, EPA will act in a separate rulemaking on Delaware's SIP revision submittal which, if approved, would remove from the Delaware SIP the provisions related to SSM in Regulations 1124 and 1142.

Contrary to the commenter's assertion that EPA made “no claim” that Delaware's emission limits and control measures containing SSM constitute RACT, EPA explained in detail in both the NPR and in the TSD prepared in support of the rulemaking how Regulations 1124 and 1142 address RACT requirements for the 2008 ozone NAAQS. EPA's explanation and analysis outlined how the Delaware regulations and measures reflect the currently available technically and economically feasible controls and the lowest achievable emission limitations for major stationary sources required to have NO_X and VOC RACT. EPA also explained in detail in the NPR and TSD how provisions in Regulation 1124 met requirements for CTGs to be in the Delaware SIP as required by CAA sections 182 and 184.

Finally, as specifically stated in the NPR, EPA noted that we cannot prejudge a final approval on Delaware's November 2016 SSM SIP Call submission. EPA explained in the NPR we would take public comment on any proposal to act on that November 2016 SIP and that if EPA would change direction based on comments received on any such proposed rulemaking to approve that SIP submission, we would not be able to approve the SSM SIP Call submission.

III. Final Action

EPA is approving the State of Delaware's May 4, 2015 SIP revision submittal (the 2015 RACT Submission) which addresses the 2008 8-hour ozone NAAQS RACT requirements as a revision to the Delaware SIP.

IV. Incorporation by Reference

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of source specific RACT determinations under the 2008 8-hour ozone NAAQS for certain major sources of NO_X and VOC emissions in the State of Delaware as described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these materials generally available through http://www.regulations.gov and/or at the EPA Region III Office (please contact the person identified in the “For Further Information Contact” section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.

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 (Public Law 104-4);
• does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 6, 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 approving the Delaware RACT requirements under the 2008 8-hour 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
• Reporting and recordkeeping requirements
• Volatile organic compounds

40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart I—Delaware

2. Amend § 52.420 by:

a. Revising the table in paragraph (d); and

b. In the table in paragraph (e), adding an entry entitled “Reasonably Available Control Technology under 2008 8-hour ozone National Ambient Air Quality Standard” at the end of the table.

The revision and addition reads as follows: