[Federal Register Volume 89, Number 42 (Friday, March 1, 2024)]
[Proposed Rules]
[Pages 15096-15098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04366]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2023-0617; FRL-11781-01-R3]


Air Plan Approval; Delaware; Amendments to Delaware's 
Requirements for Public Notice of Certain Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a

[[Page 15097]]

state implementation plan (SIP) revision submitted by the State of 
Delaware into Delaware's existing SIP-approved public notice 
requirements for certain permits authorized under Delaware regulation 
1102. The revisions Delaware made to its underlying regulation 
standardize the public notices requirements across various permits 
under Delaware regulation 1102 to be consistent with EPA's October 18, 
2016 final rule amendments to the notice and comment requirements for 
Title V, new source review and outer continental shelf (OCS) permit 
programs. This action is being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before April 1, 2024.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2023-0617 at www.regulations.gov, or via email to 
<a href="/cdn-cgi/l/email-protection#c18eb1a8ada0ef8ca0b3b8a2a0b5a481a4b1a0efa6aeb7"><span class="__cf_email__" data-cfemail="014e71686d602f4c60737862607564416471602f666e77">[email protected]</span></a>. 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 www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Yongtian He, Permits Branch (3AD10), 
Air & Radiation Division, U.S. Environmental Protection Agency, Region 
III, Four Penn Center, 1600 John F. Kennedy Boulevard, Philadelphia, 
Pennsylvania 19103. The telephone number is (215) 814-2339. Mr. He can 
also be reached via electronic mail at <a href="/cdn-cgi/l/email-protection#1c5479324573727b68757d725c796c7d327b736a"><span class="__cf_email__" data-cfemail="bef6db90e7d1d0d9cad7dfd0fedbcedf90d9d1c8">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: On November 10, 2022, the Delaware 
Department of Natural Resources and Environmental Control (DNREC) 
submitted to EPA a revision to the Delaware SIP. DNREC revised 7 DE 
Admin Code 1102 (DE 1102) to standardize the public notice requirements 
for certain permits authorized under DE 1102 to be consistent with 
EPA's final rule entitled, ``Revisions to Public Notice Provisions in 
Clean Air Act Permitting Programs,'' (81 FR 71613; October 18, 2016) 
and the implementing regulations codified in 40 CFR 70.7(h)(2).

I. Background

    The CAA requires stationary sources of air pollution to obtain 
permits to construct and operate. EPA's permitting regulations are 
contained in 40 CFR parts 51, 52, 70, and 71, and cover the 
requirements for Federal permit actions (i.e., when either EPA or a 
state or local air agency that has been delegated EPA's authority 
issues a Federal air permit). These regulations also establish the 
minimum requirements for EPA approval of state or tribal implementation 
plans (SIPs) and permitting programs for the issuance of state permits. 
EPA's regulations contain, among other things, requirements for public 
notice and availability of supporting information to allow for informed 
public participation in permit actions (public notice requirements).
    On October 18, 2016, EPA issued a final rule (October 18, 2016 
rule) that, among other things, revised the public notice requirements 
for the New Source Review (NSR) construction permits, OCS, and title V 
operating permits issued by either EPA or by state, local or tribal air 
agencies exercising Federal authority delegated by the EPA.\1\ EPA's 
October 18, 2016 rule also amended the regulatory requirements for 
obtaining EPA-approval of state, local, or tribal air permitting 
programs, but October 18, 2016 rule did not require states to revise 
their public notice requirements. However, any state that did so would 
need to revise their requirements consistent with the regulations 
revised by EPA's October 18, 2016 rule in order to receive EPA approval 
of those changes.
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    \1\ See 81 FR 71613.
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    Delaware amended 7 DE Admin. Code 1102 (DE 1102) to voluntarily 
update the public notice requirements for permits covered by the 
regulation to be consistent with certain provisions of the October 18, 
2016 rule regulatory revisions. Specifically, Delaware has amended the 
public notice requirements in DE 1102 to require that each public 
notice include: (1) The name, address, and telephone number of a person 
(or an email or website address) of DNREC Staff from whom interested 
persons may obtain additional information; and (2) The time and place 
of any hearing that may be held, including a statement of procedures to 
request a hearing (unless a hearing has already been scheduled).] \2\
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    \2\ Delaware had previously revised the public notice operating 
requirements of its title V operating permit regulations, 7 DE 
Admin. Code 1130 (DE 1130). DE 1102 also applies to title V sources 
covered by 1130 as well as other sources, such as minor sources not 
covered by DE 1130. The effect of these changes is to make all 
sources covered by DE 1102 and 1130 subject to identical public 
notice requirements. The changes to DE 1130 have not been submitted 
to EPA for approval and are not part of this rulemaking.
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II. Summary of SIP Revision and EPA Analysis

    Delaware's November 10, 2022 SIP submission reflects amendments 
made to its public notice requirements in DE 1102 that are identical to 
those in the October 18, 2016 rule's public notice requirements. While 
DE 1102 applies to some permits that are not covered by EPA's October 
18, 2016 rule (such as minor sources), some of the permits covered by 
DE 1102 are also permits addressed by the October 18, 2016 rule, such 
as major source operating permits (which are covered under DE 1130). 
The October 18, 2016 rule established requirements for obtaining EPA-
approval of state, local, or tribal air permitting programs changes.
    Delaware's submittal consists of changes to subsections 12.3.2 and 
12.4.2 of DE 1102. As previously mentioned, these subsections have been 
amended to require that each public notice include: (1) The name, 
address, and telephone number of a person (or an email or website 
address) of DNREC Staff from whom interested persons may obtain 
additional information; and (2) The time and place of any hearing that 
may be held, including a statement of procedures to request a hearing 
(unless a hearing has already been scheduled). The updated regulatory 
language in DE 1102 (and DE 1130) mirrors that of EPA's October 18, 
2016 rule and Federal regulations regarding public notice requirements 
for major source permits (81 FR 71613 and 40 CFR 70.7(h)(2)).
    This amendment to DE 1102 is not a required SIP revision, however, 
having chosen to do so, the changes to DE 1102, to the extent they 
pertain to permits covered by the October 18, 2016 rule, must meet the 
requirements of that rulemaking and the affected EPA regulations. EPA 
has determined that the revisions to DE 1102 meet this requirement, and 
that this SIP revision

[[Page 15098]]

is approvable because it is consistent with EPA requirements for major 
sources as described in EPA' October 18, 2016 rule.\3\Additionally, 
because this SIP revision addresses procedural requirements and not 
emissions or emissions increases, the submittal is approvable because 
it will not cause or contribute to a violation of any National Ambient 
Air Quality Standard (NAAQS), nor will it interfere with any applicable 
requirement concerning attainment or any other applicable CAA 
requirement, in accordance with CAA section 110(l).
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    \3\ See 81 FR 71613.
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III. Proposed Action

    EPA is proposing to approve the Delaware SIP revision to 
subsections 12.3.2 and 12.4.2 of 7 DE Admin Code 1102, Permits, which 
was submitted on November 10, 2022. EPA is soliciting public comments 
on the proposed rulemaking for the next 30 days. Relevant comments will 
be considered before taking the final action.

IV. Incorporation by Reference

    In this document, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference the amendments to subsections 12.3.2 and 12.4.2 of DE 1102, 
as discussed in section I and II of this document. EPA has made, and 
will continue to make, these materials generally available through 
www.regulations.gov and at the EPA Region III Office (please contact 
the person identified in the For Further Information Contact section of 
this preamble for more information).

V. Statutory and Executive Order Reviews

    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 proposed action:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
    <bullet> 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.
    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (E.J.) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    DNREC did not evaluate environmental justice considerations as part 
of its SIP submittal; the CAA and applicable implementing regulations 
neither prohibit nor require such an evaluation. EPA did not perform an 
E.J. analysis and did not consider E.J. in this proposed rulemaking. 
Due to the nature of the proposed action being taken here, where EPA is 
approving revisions of the state regulations to be consistent with 
notice and comment provisions previously established by EPA, this 
proposed rulemaking is expected to have a neutral to positive impact on 
the air quality of the affected area.
    In addition, this proposed rule, regarding Delaware's amendments to 
7 DE Admin. Code 1102, 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, Incorporation by 
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2024-04366 Filed 2-29-24; 8:45 am]
BILLING CODE 6560-50-P


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