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[Federal Register Volume 77, Number 191 (Tuesday, October 2, 2012)]
[Rules and Regulations]
[Pages 60053-60056]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-24095]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2012-0381; FRL- 9735-7]

Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Requirements for Prevention of Significant Deterioration and 
Nonattainment New Source Review; Fine Particulate Matter (PM2.5)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the State of Delaware on March 14, 2012. This SIP revision 
pertaining to Delaware's Prevention of Significant Deterioration (PSD) 
and nonattainment New Source Review (NSR) programs incorporates 
preconstruction permitting requirements for fine particulate matter 
(PM2.5) into the Delaware SIP. In addition, EPA is approving 
SIP revisions and portions of SIP submissions for the purpose of 
determining that Delaware has met its statutory obligations with 
respect to the infrastructure requirements of the Clean Air Act (CAA) 
which relate to Delaware's PSD permitting program and are necessary to 
implement, maintain, and enforce the 1997 national ambient air quality 
standards (NAAQS) for PM2.5 and ozone, the 2006 
PM2.5 NAAQS, and the 2008 lead NAAQS. EPA is approving these 
revisions in accordance with the requirements of the Clean Air Act 
(CAA).

DATES: This final rule is effective on November 1, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2012-0381. All documents in the docket are listed in 
the www.regulations.gov Web site. Although listed in the electronic 
docket, some information is not publicly available, i.e., 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.

[[Page 60054]]

Publicly available docket materials are available either electronically 
through www.regulations.gov or in hard copy for public inspection 
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: Gerallyn Duke, (215) 814-2084, or by 
email at duke.gerallyn@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    Throughout this document, whenever ``we,'' ``us,'' or ``our'' is 
used, we mean EPA. On August 1, 2012 (77 FR 45527), EPA published a 
notice of proposed rulemaking (NPR) for the State of Delaware. The NPR 
proposed approval of a SIP revision pertaining to Delaware's Prevention 
of Significant Deterioration (PSD) and nonattainment New Source Review 
(NSR) programs which incorporates preconstruction permitting 
requirements for fine particulate matter (PM2.5) into the 
Delaware SIP. In addition, EPA proposed approval of SIP revisions and 
portions of SIP submissions for the purpose of determining that 
Delaware has met its statutory obligations with respect to the 
infrastructure requirements of the Clean Air Act (CAA) which relate to 
Delaware's PSD permitting program and are necessary to implement, 
maintain, and enforce the 1997 PM2.5 and ozone NAAQS, the 
2006 PM2.5 NAAQS, and the 2008 lead NAAQS. The formal SIP 
revision was submitted by Delaware on March 14, 2012.
    The purpose of this SIP revision is to incorporate the PSD and 
nonattainment preconstruction permitting requirements for 
PM2.5 that are set forth in two Federal rules. The first is 
the ``Implementation of the New Source Review (NSR) Program for 
Particulate Matter less than 2.5 Micrometers (PM2.5)'' (NSR 
PM2.5 Rule), which was promulgated on May 16, 2008 (73 FR 
28321). The second is the ``Prevention of Significant Deterioration 
(PSD) for Particulate Matter less than 2.5 Micrometers 
(PM2.5)--Increments, Significant Impact Levels (SILs) and 
Significant Monitoring Concentration (SMC)'' (PSD PM2.5 
Rule), which was promulgated on October 20, 2010 (75 FR 64864).

II. Summary of SIP Revision

    The SIP revision consists of amendments to sections 1.0, 2.0, and 
3.0 of 7 DE Admin. Code 1125, ``Requirements for Preconstruction 
Review.'' The amendments establish the major source threshold, 
significant emission rate and offset ratios for PM2.5, 
establish NOX and SO2 as precursors to 
PM2.5, and establish the allowance for interpollutant 
trading for offsets and NSR applicability to PM2.5 precursor 
pollutants, pursuant to the May 2008 NSR PM2.5 Rule. In 
addition, the amendments add maximum allowable ambient pollutant 
concentrations (increments), an SMC for PM2.5 pursuant to 
the October 2010 PSD PM2.5 Rule, and SILs. As discussed in 
the NPR, we do not consider the SILs to be a mandatory SIP element, and 
in light of litigation before the U.S. Court of Appeals (D.C. Circuit), 
we are taking no action at this time with regard to new section 3.9 of 
DE Admin. Code 1125, ``Source Impact Analysis.''
    Other specific requirements of the regulations and the rationale 
for EPA's proposed action are explained in the NPR and will not be 
restated here. No public comments were received on the NPR.

III. Final Action

    EPA is approving the March 14, 2012 SIP submission pertaining to 
Delaware's PSD and nonattainment NSR programs to incorporate the 
preconstruction permitting requirements for PM2.5 as a 
revision to the Delaware SIP, with the exception for the portion of the 
SIP submission concerning the implementation of SILs for 
PM2.5. Additionally, in light of this SIP revision, EPA is 
approving the portions of Delaware's December 13, 2007, March 12, 2008, 
September 19, 2008, September 16, 2009, and April 1, 2010 
infrastructure SIP submittals which address the obligations set forth 
at CAA section 110(a)(2)(D)(i)(II) relating to Delaware's PSD permit 
program for the 1997 PM2.5 and ozone NAAQS as well as for 
the 2006 PM2.5 NAAQS. Finally, in light of Delaware's 
submission dated October 17, 2011 and the March 2012 SIP revision which 
address the obligations set forth at CAA sections 110(a)(2)(C), 
(D)(i)(II) and (J) relating to the Delaware's PSD permit program, EPA 
has determined that Delaware's SIP meets the statutory obligations 
relating to its PSD permit program set forth at CAA sections 
110(a)(2)(C), (D)(i)(II), and (J) for the 2008 lead NAAQS.

IV. 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 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 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

[[Page 60055]]

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 December 3, 2012. 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 pertaining to NSR requirements for PM2.5 
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, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides.

    Dated: September 18, 2012.
W.C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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 (c) is amended by revising 
the entries for Regulation 1125, sections 1.0, 2.0, and 3.0 in 
numerical order, to read as follows:

Sec.  52.420  Identification of plan.

* * * * *
    (c) * * *

                                  EPA-Approved Regulations in the Delaware SIP
----------------------------------------------------------------------------------------------------------------
  State regulation (7 DNREC                         State                                           Additional
            1100)              Title/subject   effective date          EPA approval date           explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                  1125 Requirements for Preconstruction Review
----------------------------------------------------------------------------------------------------------------
Section 1.0.................  General                 2/11/12  10/2/12 [Insert page number       Added 4 terms,
                               Provisions.                      where the document begins].       Revised 5
                                                                                                  terms. Note:
                                                                                                  In section
                                                                                                  1.9, the
                                                                                                  previous SIP-
                                                                                                  approved
                                                                                                  baseline dates
                                                                                                  for sulfur
                                                                                                  dioxide,
                                                                                                  particulate
                                                                                                  matter, and
                                                                                                  nitrogen
                                                                                                  dioxide in the
                                                                                                  definition of
                                                                                                  ``Baseline
                                                                                                  Date'' remain
                                                                                                  part of the
                                                                                                  SIP.
Section 2.0.................  Emission Offset         2/11/12  10/2/12 [Insert page number       Added Section
                               Provisions                       where the document begins].       2.2.5, 2.4.3.3
                               (EOP).                                                             and 2.5.7
Section 3.0.................  Prevention of           2/11/12  10/2/12 [Insert page number       Revised Section
                               Significant                      where the document begins].       3.2 and
                               Deterioration                                                      3.7.7.1. Note:
                               of Air Quality.                                                    Previous SIP-
                                                                                                  approved
                                                                                                  revisions to
                                                                                                  Section 3.1
                                                                                                  for nitrogen
                                                                                                  dioxide
                                                                                                  increments and
                                                                                                  Section 3.9A
                                                                                                  (now
                                                                                                  designated as
                                                                                                  Section
                                                                                                  3.10.1) for
                                                                                                  air quality
                                                                                                  models remain
                                                                                                  part of the
                                                                                                  SIP.
 
                                                  * * * * * * *
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[[Page 60056]]

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[FR Doc. 2012-24095 Filed 10-1-12; 8:45 am]
BILLING CODE 6560-50-P
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