[Federal Register Volume 82, Number 186 (Wednesday, September 27, 2017)]
[Rules and Regulations]
[Pages 44932-44936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-20598]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2013-0408; FRL-9968-20-Region 3]
Air Plan Approval; Delaware; State Implementation Plan for
Interstate Transport for the 2008 Ozone Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking direct
final action to approve a portion of a state implementation plan (SIP)
revision submitted by the State of Delaware. The Clean Air Act's (CAA)
good neighbor provision requires EPA and states to address the
interstate transport of air pollution that affects the ability of
downwind states to attain and maintain the national ambient air quality
standards (NAAQS). Specifically, the good neighbor provision requires
each state in its SIP to prohibit emissions that will significantly
contribute to nonattainment, or interfere with maintenance, of a NAAQS
in a downwind state. Delaware has submitted a SIP revision that
addresses the interstate transport requirements, among other things,
for the 2008 ozone NAAQS. EPA has determined that Delaware's SIP has
adequate provisions to prohibit the state from significantly
contributing to nonattainment, or interfering with maintenance, of the
2008 ozone NAAQS in any other state. EPA is approving Delaware's SIP
revision submittal in regards to the good neighbor interstate transport
provision in accordance with the requirements of the CAA.
DATES: This rule is effective on December 26, 2017 without further
notice, unless EPA receives adverse written comment by October 27,
2017. If EPA receives such comments, it will publish a timely
withdrawal of the direct final rule in the Federal Register and inform
the public that the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2013-0408 at http://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 http://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Ellen Schmitt, (215) 814-5787, or by
email at [email protected].
SUPPLEMENTARY INFORMATION: On March 27, 2013, the State of Delaware
through the Delaware Department of Natural Resources and Environmental
Control (DNREC) submitted a revision to its SIP to satisfy the
requirements of section 110(a)(2), including 110(a)(2)(D)(i), of the
CAA as it relates to the 2008 ozone NAAQS.
I. Background
On March 12, 2008, EPA revised the levels of the primary and
secondary ozone standards from 0.08 parts per million (ppm) to 0.075
ppm (73 FR 16436). The CAA requires states to submit, within three
years after promulgation of a new or revised NAAQS, SIP revisions
meeting the applicable elements of sections 110(a)(1) and (2).\1\
Several of these applicable elements are delineated within section
110(a)(2)(D)(i) of the CAA. Section 110(a)(2)(D)(i) generally requires
SIPs to contain adequate provisions to prohibit in-state emissions
activities from having certain adverse air quality effects on
neighboring states due to interstate transport of air pollution. There
are four prongs within section 110(a)(2)(D)(i) of the CAA; section
110(a)(2)(D)(i)(I) contains prongs 1 and 2, while section
110(a)(2)(D)(i)(II) includes prongs 3 and 4. This direct final action
addresses the first two prongs, which are also collectively known as
the good neighbor provision. According to the CAA's good neighbor
provision located within section 110(a)(2)(D)(i)(I), a state's SIP must
contain adequate provisions to prohibit any source or other type of
emissions activity within the state from emitting air pollutants that
``contribute significantly to nonattainment in, or interfere with
maintenance by, any other state with respect to any such national
primary or secondary ambient air quality standard.'' Under section
110(a)(2)(D)(i)(I) of the CAA, EPA gives independent significance to
the matter of nonattainment (prong 1) and to that of maintenance (prong
2).
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\1\ SIP revisions that are intended to meet the requirements of
section 110(a) of the CAA are often referred to as infrastructure
SIPs and the elements under 110(a) are referred to as infrastructure
requirements.
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II. Summary of SIP Revision
On March 27, 2013, the State of Delaware through DNREC provided a
SIP revision submittal to satisfy the requirements of section 110(a)(2)
of the CAA for the 2008 ozone NAAQS. In this rulemaking action, EPA is
approving one portion of Delaware's March 27, 2013 submittal--the
portion addressing prongs 1 and 2 of section 110(a)(2)(D)(i)(I) of the
CAA. EPA previously acted on other portions of Delaware's March 27,
2013 SIP submittal for the 2008 ozone NAAQS.\2\
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\2\ On April 3, 2014 (79 FR 18644), EPA approved portions of
Delaware's March 27, 2013 submittal for the 2008 ozone NAAQS
addressing the following: CAA section 110(a)(2)(A), (B), (C),
(D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). In
that action, EPA stated it would take later action on the portion of
the March 27, 2013 SIP submittal addressing section
110(a)(2)(D)(i)(I) of the CAA.
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[[Page 44933]]
In order to demonstrate that its SIP adequately addresses
interstate transport for the 2008 ozone NAAQS, Delaware's March 27,
2013 submittal identifies measures in its approved SIP that cover
stationary, mobile, and area sources of volatile organic compounds
(VOCs) and nitrogen oxides (NOX), both of which are
precursors to ozone. Delaware's submittal identifies SIP-approved
regulations that reduce VOCs and NOX emissions from a
variety of stationary sources within the state, including power plants,
industrial boilers, and peaking units. Delaware states in its submittal
that its sources are generally controlled with best available control
technology (BACT) or lowest achievable emission rate (LAER) level
controls. Delaware notes that sources are generally controlled on a
unit-by-unit basis at a cost of $1,300 to $11,000 per ton of
NOX reduced.\3\ To substantiate its control costs and
feasibility claims, Delaware includes an assessment of potential
additional control measures on mobile and stationary sources, including
both electric generating unit (EGU) and non-EGU categories. The
assessment evaluates, for each source or category, the technical and
economic feasibility for additional NOX and VOC reductions.
For non-EGUs, Delaware could not identify any cost efficient controls
beyond those already required by the SIP; estimating that at about
$5,000 per ton of pollutant (VOC, NOX) reduced, only a small
amount of air emission reductions would be seen.\4\ In its submittal,
Delaware identifies the following Delaware regulations, which are
already included in its approved SIP: 7 DE Admin. Code 1125 (New Source
Review); 7 DE Admin. Code 1112 (NOX Reasonably Available
Control Technology (RACT)); 7 DE Admin. Code 1124 (VOC RACT); 7 DE
Admin. Codes 1126 and 1136 (vehicle inspection and maintenance (I/M)
control measures). In its submittal, Delaware concludes that it has
satisfied the requirements for section 110(a)(2)(D)(i)(I) of the CAA
for the 2008 ozone NAAQS because its sources are already well
controlled for NOX and VOCs, and because further reductions
beyond the State's current SIP measures for NOX and VOCs are
not economically feasible.
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\3\ See ``Attachment A,'' State Submittal--Delaware Section
110(a)(2) Infrastructure Requirements for the 2008 Ozone NAAQS,
www.regulations.gov, Docket number EPA-R03-OAR-2013-0408.
\4\ In its March 27, 2013 submittal, Delaware stated that at
about $5,000 per ton, the State could reduce NOX
emissions by about 375 tons per year (tpy) and VOCs by 255 tpy.
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III. EPA Analysis
A. Cross-State Air Pollution Rule
The CAA gives EPA a backstop role to issue federal implementation
plans (FIPs), as appropriate, in the event that states fail to submit
approvable SIPs. On September 8, 2016, EPA took steps to effectuate
this backstop role with respect to emissions in 22 eastern states (not
including Delaware) by finalizing an update to the Cross-State Air
Pollution Rule (CSAPR) ozone season program that addresses the
obligations of good neighbor provision for the 2008 ozone NAAQS. 81 FR
74504. This CSAPR Update establishes statewide NOX budgets
for certain affected EGUs in the May-September ozone season to reduce
the interstate transport of ozone pollution in the eastern United
States, and thereby help downwind states and communities meet and
maintain the 2008 ozone NAAQS.\5\ The CSAPR Update, which specifically
focuses on reducing EGU NOX emissions, includes technical
information and related analysis to assist states with meeting the
requirements of section 110(a)(2)(D)(i)(I) of the CAA for the 2008
ozone NAAQS. The CSAPR Update uses the same framework EPA used when
developing the original CSAPR, EPA's transport rule addressing the 1997
ozone NAAQS as well as the 1997 and 2006 fine particulate matter
(PM2.5) NAAQS. The CSAPR framework establishes the following
four-step process to address the requirements of the good neighbor
provision:
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\5\ Ground-level ozone is formed when VOCs and NOX
combine in the presence of sunlight. The rate of ozone production
can be limited by the availability of either VOCs or NOX.
In the case of the eastern states, ozone reduction has shown to be
more effective by reducing NOX which is why reducing
NOX emissions is the focus of both the CSAPR Update and
today's rulemaking action regarding Delaware.
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(1) Identify downwind receptors that are expected to have problems
attaining or maintaining the NAAQS;
(2) determine which upwind states contribute to these identified
problems in amounts sufficient to link \6\ them to the downwind air
quality problems;
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\6\ In this rulemaking action, the terms ``link,'' ``linked,''
or ``linkage'' indicate an association or relationship between two
entities and should not be construed as there being any type of
physical connection.
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(3) identify and quantify, for states linked to downwind air
quality problems, upwind emissions that significantly contribute to
nonattainment or interfere with maintenance of a NAAQS; and
(4) reduce the identified upwind emissions for states that are
found to have emissions that significantly contribute to nonattainment
or interfere with maintenance of the NAAQS downwind by adopting
permanent and enforceable measures in a FIP or SIP.This four-step
framework is informed by cost-effectiveness and feasibility of
controls, emissions, meteorology, and air quality factors. In the CSAPR
Update, EPA used this four-step framework to determine each linked
upwind state's significant contribution to nonattainment or
interference with maintenance of downwind air quality.
B. EPA's Assessment of Delaware
While EPA's CSAPR Update analysis included an assessment of
Delaware, the State was not included in the final CSAPR Update FIPs. In
the CSAPR Update, EPA found that steps 1 and 2 of the CSAPR framework
linked Delaware to a downwind maintenance receptor in Philadelphia
County, Pennsylvania. EPA applied step 3 of the CSAPR framework to
establish EGU NOX emission budgets that reflect
NOX reductions necessary to reduce interstate ozone
transport for the 2008 ozone NAAQS.\7\
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\7\ Due to the State's sources already being equivalently
controlled, EPA's assessment shows no cost effective EGU
NOX reduction potential available in Delaware by the 2017
ozone season, the implementation date for the CSAPR Update. 81 FR
74504 (October 26, 2016).
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For this analysis, EPA applied a multi-factor evaluation of cost,
NOX reductions, and air quality improvements. As part of
this analysis, EPA explicitly evaluated whether the budget quantified
for each state would result in over-control,\8\ as required by
precedents of the Supreme Court and D.C. Circuit.\9\ Specifically, EPA
evaluated whether at each level of NOX emission budget, the
identified downwind ozone problems (i.e., nonattainment or maintenance
problems) are resolved or the upwind contribution from any linked state
dropped below the 1% screening threshold used to link the state. This
multi-factor evaluation of cost, NOX reductions, and air
quality improvements (including consideration
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of potential over-control) resulted in EPA's quantification of upwind
emissions that significantly contribute to nonattainment or interfere
with maintenance of the 2008 ozone NAAQS downwind.\10\
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\8\ In this rulemaking action, the term ``over-control''
describes the possibility that a state might be compelled to reduce
emissions beyond the point at which every affected downwind state is
in attainment. See EPA v. EME Homer City Generation, L.P., 134 S.
Ct. 2014; EME Homer City Generation, L.P. v. EPA, 795 F.3d 118, 127
(D.C. Cir. July 28, 2015).
\9\ Id.
\10\ CSAPR Update final rule. 81 FR 74504, 74519 (October 26,
2016).
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C. Air Quality Assessment Tool
The emission reductions under the various levels of emission
budgets analyzed by EPA can result in air quality improvements such
that individual receptors drop below the level of the 2008 ozone NAAQS
based on the cumulative air quality improvement from the states
analyzed. In examining emissions contribution to nonattainment and
maintenance receptors for the 2008 ozone NAAQS, EPA used the Air
Quality Assessment Tool (AQAT) to estimate the air quality impacts of
the upwind state EGU NOX emission budgets on downwind ozone
pollution levels for each of the assessed EGU NOX emission
budget levels. EPA assessed the magnitude of air quality improvement at
each receptor at each level of control, examined whether receptors are
considered to be solved,\11\ and looked at the individual contributions
of emissions from each state to each of that state's linked receptors.
EPA also examined each state's air quality contributions at each
emission budget level, assessing whether a state maintained at least
one linkage to a receptor that was estimated to continue to have
nonattainment or maintenance problems with the 2008 ozone NAAQS.
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\11\ When the average and maximum design values of a receptor
decreases to values below 76 parts per billion (ppb) or (0.076 ppm),
the nonattainment and maintenance issues of the receptor would be
considered solved.
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D. Conclusion
EPA examined emission budget levels of: $0 per ton; $800 per ton;
$1,400 per ton; $3,400 per ton; $5,000 per ton; and $6,400 per ton.\12\
\13\ This analysis accounted for existing limits on Delaware EGUs in
the State's March 27, 2013 SIP submittal. Notably, for Delaware, EPA's
assessment of EGUs' NOX reduction potential showed no cost
effective reductions available in Delaware within the allotted short-
term implementation timeframe (by 2017 for the 2008 ozone NAAQS) at
every cost threshold EPA evaluated. 81 FR at 74553 (EPA's assessment of
EGU NOX reduction potential shows no cost effective
reductions available in Delaware in 2017 at any evaluated cost
threshold because they are already equivalently controlled). Further,
EPA estimated that implementation of the CSAPR Update along with
NOX controls in Delaware's approved SIP are anticipated to
resolve the lone downwind maintenance receptor to which Delaware is
linked.\14\
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\12\ Due to the close timing of Pennsylvania finalizing its May
2016 regulation ``Additional RACT Requirements for Major Sources of
NOX and VOCs,'' also known as RACT II, to the publication
of the CSAPR Update, EPA was not able to factor expected emission
limits from RACT II directly into the previously concluded modeling
for CSAPR Update when all of the other relevant in-place state and
national rules were incorporated. EPA therefore conducted a separate
analysis in order to incorporate the impacts of the new PA RACT
emission limits in addition to the already incorporated national and
state rules. The total results were incorporated into the Agency's
assessment at each emission budget level (e.g. $0/ton through
$6,400/ton) and at each stage of the rulemaking analysis. See
``Pennsylvania RACT Memo to the Docket,'' Docket No. EPA-HQ-OAR-
2015-0500 for a more detailed discussion.
\13\ Pennsylvania's RACT II provisions are part of
Pennsylvania's strategy to meet its RACT obligations for the 2008
ozone NAAQS. EPA has not yet taken rulemaking action on
Pennsylvania's RACT II.
\14\ As stated in section VI.D. in the preamble of the final
CSAPR Update and in the Ozone Transport Policy Analysis Technical
Support Document (TSD) used to support the final CSAPR Update, EPA's
AQAT assessment indicates that an emissions budget reflecting $800
per ton of NOX reduced would resolve the maintenance
problem at the Philadelphia, Pennsylvania maintenance receptor
(monitor ID 4210100124).
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EPA evaluated EGU NOX reduction potential under the
CSAPR Update and the assessment showed that there was no cost effective
EGU NOX reduction potential within Delaware at any evaluated
cost threshold because the Delaware EGUs are already equivalently
controlled.\15\ In Delaware's March 27, 2013 submittal, in addition to
EGUs, Delaware evaluated sources other than EGUs and the State could
not identify any cost efficient controls for reducing VOCs or
NOX beyond those already required by the SIP.
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\15\ See 81 FR at 74553.
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In conclusion, when evaluating all the available information, EPA
finds that Delaware has implemented measures that have reduced
statewide VOC and NOX emissions and that should continue to
reduce emissions within the State. The maintenance receptor that
Delaware is linked to in the CSAPR Update is projected by EPA to have
its maintenance issue resolved with CSAPR Update implementation \16\
and existing NOX controls in place in Delaware. EPA finds
Delaware has no cost effective EGU NOX emissions reduction
potential, beyond what is already required in Delaware's SIP, at or
below a $6,400 per ton threshold used in the CSAPR Update
determinations by 2017 for the 2008 ozone NAAQS. Additionally, EPA
finds that Delaware's non-EGU sources are also well-controlled and that
there is limited VOC and NOX emissions reduction potential,
beyond what it already required in the State's SIP, at and below the
$5,000 per ton threshold. Thus, EPA finds Delaware has fully satisfied
its obligation with respect to the requirements of section
110(a)(2)(D)(i)(I) of the CAA for the 2008 ozone NAAQS, and we are
approving the portion of the March 27, 2013 Delaware SIP submittal
addressing prongs 1 and 2 of the interstate transport requirements for
the 2008 ozone NAAQS.
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\16\ EPA notes that the preliminary 2014-2016 design value for
the identified CSAPR Update Philadelphia maintenance site does not
reflect the air quality results as a result of the CSAPR Update
implementation because sources began compliance with the rule in May
1, 2017.
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IV. Final Action
EPA is approving the portion of the March 27, 2013 Delaware SIP
revision addressing prongs 1 and 2 of the interstate transport
requirements for section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS in
accordance with section 110 of the CAA for the reasons discussed in
this rulemaking.
On April 3, 2014 (79 FR 18644), EPA finalized approval of the
following infrastructure elements or portions thereof from the March
27, 2013 submittal: CAA section 110(a)(2)(A), (B), (C), (D)(i)(II),
(D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). This action
approves the remaining portions of the March 27, 2013 SIP revision,
which address prongs 1 and 2 of section 110(a)(2)(D)(i)(I) of the CAA,
also known as the good neighbor provision. EPA did not take action upon
these elements in our prior SIP approval action, published on April 3,
2014 (79 FR 18644).
EPA is publishing this rule without prior proposal because EPA
views this as a noncontroversial amendment and anticipates no adverse
comment. However, in the ``Proposed Rules'' section of this issue of
the Federal Register, EPA is publishing a separate document that will
serve as the proposal to approve the SIP revision if adverse comments
are filed. This rule will be effective on December 26, 2017 without
further notice unless EPA receives adverse comment by October 27, 2017.
If EPA receives adverse comment, EPA will publish a timely withdrawal
in the Federal Register informing the public that the rule will not
take effect. EPA will address all public comments in a subsequent final
rule based on the proposed rule. EPA will not institute a second
comment period on this action. Any parties interested in commenting
must do so at this time.
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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);
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 November 27, 2017. 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. Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of this issue of the Federal Register, rather than file an
immediate petition for judicial review of this direct final rule, so
that EPA can withdraw this direct final rule and address the comment in
the proposed rulemaking action. This action, addressing Delaware's
interstate transport for the 2008 ozone NAAQS, may not be challenged
later in proceedings to enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Volatile organic compounds.
Dated: September 11, 2017.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart I--Delaware
0
2. In Sec. 52.420, the table in paragraph (e) is amended by adding a
second entry for Section 110(a)(2) Infrastructure Requirements for the
2008 Ozone NAAQS, immediately after the first entry titled ``Section
110(a)(2) Infrastructure Requirements for the 2008 Ozone NAAQS'' to
read as follows:
Sec. 52.420 Identification of plan.
* * * * *
(e) * * *
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Applicable geographic or nonattainment State
Name of non-regulatory SIP revision area submittal date EPA approval date Additional explanation
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* * * * * * *
Section 110(a)(2) Infrastructure Statewide............................. 3/27/13 9/27/17, [insert Federal This action addresses CAA
Requirements for the 2008 Ozone NAAQS. Register citation]. element 110(a)(2)(D)(i)(I).
* * * * * * *
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[FR Doc. 2017-20598 Filed 9-26-17; 8:45 am]
BILLING CODE 6560-50-P