[Federal Register Volume 77, Number 209 (Monday, October 29, 2012)]
[Proposed Rules]
[Pages 65518-65520]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-26522]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2012-0521; FRL-9745-4]
Approval and Promulgation of Air Quality Implementation Plans;
Delaware; Prevention of Significant Deterioration; Greenhouse Gas
Permitting Authority and Tailoring Rule Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)
revision submitted by the Delaware Department of Natural Resources and
Environmental Control (DNREC). This revision pertains to EPA's
greenhouse gas (GHG) permitting provisions as promulgated on June 3,
2010. This action is being taken under the Clean Air Act (CAA).
DATES: Written comments must be received on or before November 28,
2012.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2012-0521 by one of the following methods:
A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. Email: [email protected].
C. Mail: EPA-R03-OAR-2012-0521, Kathleen Cox, Associate Director,
Office of Permits and Air Toxics, Mailcode 3AP10, U.S. Environmental
Protection Agency, Region III, 1650 Arch Street, Philadelphia,
Pennsylvania 19103.
D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during normal hours of operation, and
special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2012-0521. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., 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 either electronically in www.regulations.gov or
in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal
are available at the Delaware Department of Natural Resources and
Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware
19903.
FOR FURTHER INFORMATION CONTACT: David Talley, (215) 814-2117, or by
email at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. On October 12, 2011, DNREC
submitted a proposed revision to the Delaware SIP. The revision is to 7
DE Admin. Code 1125--Requirements for Preconstruction Review. The
amendments incorporate preconstruction permitting requirements for GHG
sources consistent with federal requirements.
I. Background
On October 12, 2011, DNREC submitted a revision to EPA for approval
into the Delaware SIP to establish appropriate emission thresholds for
determining which new or modified stationary sources are
[[Page 65519]]
subject to Delaware's Prevention of Significant Deterioration (PSD)
permitting requirements for GHG emissions. Subsequent to that
submittal, it was discovered that Delaware's proposed revision
contained an error which would have inadvertently and incorrectly
limited the circumstances under which a source could trigger PSD
requirements for GHG emissions. Delaware initiated steps to undertake
rulemaking action to correct the error, and on August 9, 2012,
submitted a formal supplement to the October 12, 2011 SIP submittal.
The supplement contained the corrected text of 7 DE Admin. Code 1125.
Final approval of Delaware's October 12, 2011 SIP revision will put in
place the GHG emission thresholds for PSD applicability set forth in
EPA's ``Prevention of Significant Deterioration and Title V Greenhouse
Gas Tailoring Rule,'' (the Tailoring Rule) Final Rule, 75 FR 31514
(June 3, 2010), ensuring that smaller GHG sources emitting less than
these thresholds are not subject to permitting requirements.\1\
Pursuant to section 110 of the CAA, EPA is proposing to approve this
revision into the Delaware SIP.
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\1\ The Tailoring Rule also applies to the title V program,
which requires operating permits for existing sources. However,
today's action does not affect Delaware's title V program.
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Today's proposed action on the Delaware SIP generally relates to
four federal rulemaking actions. The first rulemaking action is EPA's
Tailoring Rule. The second rulemaking action is EPA's ``Action to
Ensure Authority to Issue Permits Under the Prevention of Significant
Deterioration Program to Sources of Greenhouse Gas Emissions: Finding
of Substantial Inadequacy and SIP Call,'' Proposed Rule (GHG SIP Call),
75 FR 53892 (September 2, 2010). The third rulemaking action is EPA's
``Action to Ensure Authority to Issue Permits Under the Prevention of
Significant Deterioration Program to Sources of Greenhouse Gas
Emissions: Federal Implementation Plan,'' Proposed Rule, 75 FR 53883
(September 2, 2010) (GHG FIP), which serves as a companion rulemaking
action to EPA's proposed GHG SIP Call. The fourth rulemaking action is
the ``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans'' 75 FR 82536 (Narrowing Rule) (December 30,
2010). A summary of each of these rulemaking actions is provided below.
In the first rulemaking action, the Tailoring Rule, EPA established
appropriate GHG emission thresholds for determining the applicability
of PSD requirements to GHG-emitting sources. In the second rulemaking
action, the GHG SIP Call, EPA found that the EPA-approved PSD programs
in 13 States (not including Delaware) were substantially inadequate to
meet CAA requirements because they did not appear to apply PSD
requirements to GHG-emitting sources. For each of these States, EPA
proposed to require the State (through a ``SIP Call'') to revise its
SIP as necessary to correct such inadequacies. EPA proposed an
expedited schedule for these States to submit their SIP revision, in
light of the fact that as of January 2, 2011, certain GHG-emitting
sources were subject to the PSD requirements and may not have been able
to obtain a PSD permit in order to construct or modify. In the third
rulemaking action, the GHG FIP, EPA issued a FIP to apply in any state
that was unable to submit, by its deadline, a SIP revision to ensure
that the state had authority to issue PSD permits for GHG-emitting
sources. Because Delaware already had authority to regulate GHGs,
Delaware is only seeking to revise its SIP to put in place the GHG
emission thresholds for PSD applicability set forth in EPA's Tailoring
Rule, thereby ensuring that smaller GHG sources emitting less than
these thresholds are not subject to permitting requirements for sources
of GHG. In the Narrowing Rule, EPA limited its approval of those
states' programs which had the authority to regulate GHG's, but lacked
a vehicle to limit applicability to the higher thresholds established
by the Tailoring Rule.
For a detailed discussion of GHGs and GHG-emitting sources, the CAA
PSD program, minimum SIP elements for a PSD program, and EPA's recent
actions regarding GHG permitting, the relationship between the proposed
Delaware SIP revision and EPA's other national rulemakings, as well as
EPA's analysis of Delaware's SIP revision, refer to the Technical
Support Document in the docket for this action which can be found at
www.regulations.gov (Docket No. EPA-R03-OAR-2012-0521).
II. EPA's Analysis of Delaware's SIP Revision
On October 12, 2011, DNREC submitted a proposed revision to
Delaware's SIP to EPA for approval. The revision is to 7 DE Admin. Code
1125--Requirements for Preconstruction Review.
On July 29, 2010, Delaware provided a letter to EPA with
confirmation that the state not only had the authority to regulate GHG
in its PSD and title V programs, but could also interpret the term
``subject to regulation'' consistent with the Tailoring Rule.
Nevertheless, Delaware undertook rulemaking to explicitly incorporate
the Tailoring Rule thresholds into their PSD program. Delaware's
October 12, 2011, proposed SIP revision establishes thresholds for
determining which stationary sources and modification projects become
subject to permitting requirements for GHG emissions under Delaware's
PSD program.
The changes to Delaware's PSD program regulations at 7 DE Admin.
Code 1125 are substantively the same as the federal provisions amended
in EPA's Tailoring Rule. As part of its review of the Delaware
submittal, EPA performed a line-by-line review of Delaware's proposed
revisions and has preliminarily determined that they are consistent
with the Tailoring Rule. The August 9, 2012 revision that was formally
submitted as a supplement to the October 12, 2011 submittal addresses
an error in the definition of ``Subject to Regulation'' at 7 DE Admin.
Code 1125, section 1.9--Definitions. The definition as originally
submitted would have inappropriately limited the circumstances under
which a facility can trigger PSD review for its GHG emissions. The
proposed revision to the definition submitted in the August 9, 2012
supplement appropriately mirrors the federal requirements. These
changes to Delaware's regulations are also consistent with section 110
of the CAA because they are incorporating GHGs for regulation in the
Delaware SIP.
III. Proposed Action
Pursuant to section 110 of the CAA, EPA is proposing to approve
Delaware's October 12, 2011, SIP revision (as amended by the August 9,
2012 supplement), relating to PSD requirements for GHG-emitting
sources. Specifically, Delaware's October 12, 2011, proposed SIP
revision establishes appropriate emissions thresholds for determining
PSD applicability to new and modified GHG-emitting sources in
accordance with EPA's Tailoring Rule. EPA has made the preliminary
determination that this SIP revision is approvable because it is in
accordance with the CAA and EPA regulations regarding PSD permitting
for GHGs. EPA is soliciting public comments on our proposed approval of
the revisions to the Delaware SIP. These comments will be considered
before taking final action.
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission
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that complies with the provisions of the Act 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 proposed action merely
approves the State's law as meeting federal requirements and does not
impose additional requirements beyond those imposed by the State's 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 Order
12866 (58 FR 51735, October 4, 1993);
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 proposed SIP revision pertaining to greenhouse
gas permitting 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, 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: October 10, 2012.
W.C. Early,
Acting, Regional Administrator, Region III.
[FR Doc. 2012-26522 Filed 10-26-12; 8:45 am]
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