[Federal Register Volume 84, Number 25 (Wednesday, February 6, 2019)]
[Rules and Regulations]
[Pages 2060-2063]
[FR Doc No: 2019-01113]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2013-0492; FRL-9989-03-Region 3]

Approval and Promulgation of Air Quality Implementation Plans;
Delaware; Interstate Transport Requirements for the 2010 1-Hour Sulfur
Dioxide Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving the
remaining portions of a state implementation plan (SIP) revision
submitted by the State of Delaware. This revision addresses the
infrastructure requirement for interstate transport of pollution with
respect to the 2010 1-hour sulfur dioxide (SO2) national
ambient air quality standard (NAAQS). This action is being taken under
the Clean Air Act (CAA).

DATES: This final rule is effective on March 8, 2019.

ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2013-0492. All documents in the docket are listed on
the http://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
http://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,<PHONE_NUMBER>,
or by email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    On May 29, 2013, Delaware submitted, through the Delaware
Department of Natural Resources and Environmental Control (DNREC), a
revision to its SIP to satisfy the infrastructure requirements of
section 110(a)(2) of the CAA for the 2010 1-hour SO2 NAAQS,
including the interstate transport requirements of section
110(a)(2)(D)(i)(I). On January 22, 2014 (79 FR 3506), EPA approved
Delaware's infrastructure SIP submittal for the 2010 1-hour
SO2 NAAQS for all applicable elements of section 110(a)(2)
with the exception of 110(a)(2)(D)(i)(I). On August 8, 2018 (83 FR
39035), EPA published a notice of proposed rulemaking (NPRM) approving
the portion of Delaware's SIP addressing the interstate transport
requirements of section 110(a)(2)(D)(i)(I) for the 2010 1-hour
SO2 NAAQS. For more information on SO2 pollution,
EPA's infrastructure requirements, and interstate transport
requirements, see Section I of the August 8, 2018 NPRM.

II. Summary of SIP Revision and EPA's Analysis

    The portions of Delaware's May 29, 2013 SIP submittal addressing
interstate transport (for section 110(a)(2)(D)(i)(I)) discuss how
Delaware does not significantly contribute with respect to the 2010 1-
hour SO2 NAAQS to nonattainment in, or interfere with
maintenance in, any other state and discusses prevailing wind direction
in the region. Delaware described in its submittal several existing
SIP-approved measures and other federally enforceable source-specific
measures, pursuant to permitting requirements under the CAA, that apply
to SO2 sources within the State.
    After evaluating the information on emissions, monitoring data, and
meteorological data, EPA concluded that the level of SO2
emissions in Delaware is primarily due to point sources, which have
substantially and permanently reduced SO2 emissions in the
past five years. Additionally, the historical and recent data from
SO2 monitors in close proximity to Delaware's borders
support the conclusion that emissions from point sources in Delaware
have been substantially reduced and are not impacting neighboring
states. Based on this information, EPA agreed with Delaware's general
conclusion that the existing Delaware SIP is adequate to prevent
sources in Delaware from significantly contributing to nonattainment or
interfering with maintenance in another state with respect to the 2010
1-hour SO2 NAAQS. A detailed summary of EPA's review and
rationale for our approval of this SIP revision as meeting CAA section
110(a)(2)(D)(i)(I) for the 2010 1-hour SO2 NAAQS may be
found in EPA's technical support document (TSD) (docket number: EPA-
R03-OAR-2013-0492) and will not be restated here.

III. Response to Comments

    EPA received three sets of comments on the August 8, 2018 NPRM. Two
of those sets lacked the required specificity to Delaware's SIP
submissions and the interstate transport requirements of CAA section
110(a)(2)(D)(i)(I); EPA provides no response to these comments because
they fall outside the scope of our action. EPA did receive one relevant
set of comments; those comments and EPA's responses are discussed in
this section of this rulemaking action.
    Comment: The commenter first stated that the SIP must consider
SO2 emissions from refineries and their interstate impacts,
including emissions from the Delaware City Refinery. The commenter also
stated that consideration must include actual emissions as well as
permitted emissions including emissions permitted during startup,
shutdown, and malfunction.
    Response: EPA agrees with the commenter that the Delaware SIP
should consider SO2 emissions from emission sources in
Delaware. However, as stated in the NPRM and the TSD in greater detail,
EPA has considered emissions from the Delaware City Refinery, as well
as emissions from 33 other facilities in Delaware that produce over one
ton per year (tpy) of SO2. See Table 2 of EPA's TSD. EPA
considered actual emissions from the two most recent National Emissions
Inventory (NEI) years (the 2011 NEI version 2 and 2014 NEI version 2)
as well as the most recent year of data submitted to EPA's Emissions
Inventory System (EIS) (the 2015 EIS). In comparing these data sets,
EPA was able to evaluate the universe of sources in Delaware that are
likely to be responsible for SO2 emissions potentially
contributing to interstate transport to downwind areas and states. In
addition, by evaluating the actual emissions data reported to EPA, the
Agency has considered emissions from any startup, shutdown, or
malfunction events to the greatest extent possible; the process by
which states submit data to the NEI system requires states to include
emissions related to these events. Thus, EPA did consider actual
emissions, including emissions that may have been from startup,
shutdown, or malfunction events when evaluating Delaware's SIP revision
to address interstate transport.
    In addition, the commenter has not provided any specific
information that any source, or its emissions, were not included in
EPA's analysis or that any source listed in Table 2 of EPA's TSD has
substantially higher emissions than what was indicated in Table 2 of
EPA's TSD. EPA's assessment of Delaware's satisfaction of all
applicable requirements under CAA section 110(a)(2)(D)(i)(I) for the
2010 SO2 NAAQS was reasonably informed in part by evaluating
the downwind impacts of emissions from these sources. After reviewing
this information on emissions, monitoring data, and meteorological
data, EPA determined that Delaware does not significantly cause or
contribute to nonattainment or interfere with maintenance of the NAAQS
in downwind states.
    Comment: The commenter claimed it is arbitrary to assume that
short-term emissions are equal to long-term emission limits. The
commenter claimed it is arbitrary to assume that hourly emissions are
never higher than the thirty-day or longer averaging time because there
is no basis for this assumption. The commenter further claimed sources
almost always exceed their long-term emission limits during shorter
periods of time.
    Response: EPA agrees with the commenter as a general matter that
short-term emissions on an hourly basis could be higher than longer-
term hourly emissions on a rolling average, and that a source just
meeting its long-term limit could potentially have short-term emissions
above the level of that limit. In designations and in review of
attainment demonstrations, EPA gives appropriate recognition to this
reality. See ``Guidance for 1-Hour SO2 Nonattainment Area
SIP Submissions'' (April 23, 2014), available at https://www.epa.gov/sites/production/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf. However, this potential for
short term emissions to be higher on an hourly basis and not affect
compliance with longer term limits does not affect EPA's conclusion
regarding the adequacy of Delaware's SIP for interstate transport
relative to the 1-hour SO2 NAAQS, because the analysis in no
way relies on an assumption that short-term emissions remain at or
below long-term emission limits. In the NPRM and TSD, EPA did not rely
on evaluations of short-term or long-term emission limits to support
the conclusion that Delaware does not significantly cause or contribute
to nonattainment or interfere with maintenance of the NAAQS in downwind
states, nor did the Agency make any statements or conclusions regarding
short-term or long-term emission limits, or the relationship between
such limits and Delaware not significantly contributing to
nonattainment or maintenance issues in other states.\1\ Similarly,
EPA's proposed approval of the interstate transport SIP did not rely on
any evaluation of hourly emissions or comparisons with thirty-day or
longer averaging times, nor did EPA make any assumptions regarding
these topics. EPA assessed annual emissions data in order to determine
the scope of review necessary as a way to narrow Delaware's universe of
sources likely to be responsible for SO2 emissions
potentially contributing to interstate transport. After determining
that 62% of Delaware's emissions are from point sources, EPA next
focused on individual facilities which emitted above one tpy. EPA chose
one tpy as the emissions threshold for consideration for interstate
transport because Delaware's universe of point sources was manageable
enough to evaluate at this low threshold; this does not preclude EPA
from choosing a different threshold in the future or for evaluating
interstate transport in a different state. With regards to the
commenter's claims about sources ``almost always'' exceeding their
long-term emission limits during shorter periods of time, the commenter
did not provide any evidence about any of the 33 named sources
evaluated by EPA in the TSD to support such a claim.
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    \1\ EPA notes that short-term limits were utilized in modeling
performed during the designations process for the Anne Arundel,
Maryland nonattainment area. However, EPA did not rely on that
modeling for any purposes related to evaluating significant
contribution to nonattainment or interference with maintenance of
the 2010 SO2 NAAQS. As further described in the July 7,
2018 TSD and NPRM for this action, based on wind direction,
distance, and emissions from Delaware, EPA believes it is unlikely
for Delaware's emissions to significantly contribute or interfere
with maintenance of the 2010 SO2 NAAQS.
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    Comment: The commenter asserted that, for sources with no emission
limits such as flares, EPA's analysis must be based on a mass balance
calculation of maximum emissions and be based on the flares not
operating unless there is a SIP provision with adequate monitoring
which requires the flares to ignite every time the stack is in service.
    Response: In the NPRM and TSD, EPA did not make any claims or
conclusions regarding emissions from flares, calculating maximum
emissions, or any other topic regarding sources with no emission
limits. EPA's evaluation regarding Delaware's emissions and whether the
SIP adequately addressed obligations in CAA section 110(a)(2)(D)(i)(I)
was based on facility-wide actual emissions reported to EPA in both the
NEI system and EIS. As such, the commenter's assertion that EPA's
analysis must be based on a mass balance calculation of maximum

emissions and be based on the flare not operating is not pertinent to
EPA's analysis of Delaware's sources or the adequacy of Delaware's SIP
in meeting obligations in 110(a)(2)(D)(i)(I). Thus, no further response
is provided.
    Comment: Lastly, the commenter stated that it is arbitrary for EPA
to rely on prevailing winds as the 2010 SO2 NAAQS is a 1-
hour standard. The commenter states that the meteorology in roughly
99.95% of hours in any given year would be irrelevant because the form
of the NAAQS is the 4th high daily maximum one-hour value. The
commenter further stated that, unless EPA has evidence in the record
that the winds traveled in the same direction as the prevailing winds
99.95% of the year, the use of prevailing winds is irrelevant to the
question of whether sources in Delaware significantly contribute to, or
interfere with the maintenance of, the NAAQS in New Jersey.
    Response: EPA disagrees with the commenter's assertion that it is
arbitrary for EPA to rely on prevailing winds as part of the weight of
evidence assessment of whether Delaware's SIP satisfies the interstate
transport requirements for the 2010 SO2 NAAQS. EPA believes
the central tendency of the distribution of wind directions being away
from a receptor location as indicated by a wind rose, and the frequency
of winds being in the direction of a receptor location, can be useful
factors in determining the likelihood of SO2 emissions
transporting beyond Delaware's borders. Furthermore, EPA's use of wind
rose information is only one of many factors considered in the EPA's
weight of evidence analysis and is not the sole factor in determining
whether Delaware significantly contributes to nonattainment or
interferes with maintenance of the NAAQS in downwind states. In
addition to wind rose information, EPA evaluated the distances between
sources in Delaware and the borders with other states, currently
available ambient monitoring data, permanent and enforceable reductions
from facilities in Delaware, and SIP-approved programs that limit any
future increases in emissions from sources in Delaware (such as
nonattainment new source review and prevention of significant
deterioration permitting programs) and implementation of nationally
applicable Federal rules (such as 40 CFR part 63, subparts DDDDD and
JJJJJJ, collectively ``EPA's ICI Boilers and Heaters NESHAP
Rules'').\2\
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    \2\ Because EPA's consideration of wind rose information is only
one of many factors used in evaluating Delaware's transport SIP for
the 1-hour SO2 NAAQS, our evaluation of wind rose
information has no implications for how wind rose information may be
used or considered in any other EPA action. The technical utility or
importance of wind rose information in another action will depend on
the specific technical circumstances and related CAA requirements.
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IV. Final Action

    EPA is approving the remaining portions of the May 29, 2013 SIP
revision that address interstate transport for the 2010 1-hour
SO2 NAAQS as these portions meet the requirements in CAA
section 110 and specifically in 110(a)(2)(D)(i)(I). EPA is approving
these portions of the May 29, 2013 SIP submission as a revision to the
Delaware SIP.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866.
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by April 8, 2019. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action, addressing Delaware's interstate transport
requirements for the 2010 1-hour SO2 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, Reporting and recordkeeping requirements, Sulfur oxides.

    Dated: December 28, 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 revising
the entry for ``Section 110(a)(2) Infrastructure Requirements for the
2010 SO2 NAAQS'' and adding a second entry directly beneath
that entry for ``Section 110(a)(2) Infrastructure Requirements for the
2010 SO2 NAAQS'' to read as follows:

Sec.  52.420   Identification of plan.

* * * * *
    (e) * * *

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                                                                State
    Name of non-regulatory SIP            Applicable          submittal              EPA approval  date                   Additional  explanation
             revision                  geographic  area         date
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                                                                      * * * * * * *
Section 110(a)(2) Infrastructure    Statewide............       5/29/2013  1/22/2014, 79 FR 3506.................  Docket #: 2013-0492. This action
 Requirements for the 2010 SO2                                                                                addresses the following CAA elements
 NAAQS.                                                                                of section 110(a)(2): A, B, C,
                                                                                D(i)(II), D(ii), E, F, G, H, J, K,
                                                                                L, and M.
Section 110(a)(2) Infrastructure    Statewide............       5/29/2013  2/6/2019, [Insert Federal Register      Docket #: 2013-0492. This action
 Requirements for the 2010 SO2                                              citation].                              addresses CAA section
 NAAQS.                                                                                110(a)(2)(D)(i)(I) (prongs 1 and 2)

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[FR Doc. 2019-01113 Filed 2-5-19; 8:45 am]
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