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[Federal Register Volume 77, Number 209 (Monday, October 29, 2012)]
[Proposed Rules]
[Pages 65518-65520]
From the Federal Register Online via the Government Printing 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: cox.kathleen@epa.gov.
    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 talley.david@epa.gov.

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

[[Page 65520]]

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]
BILLING CODE 6560-50-P
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