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[Federal Register Volume 73, Number 168 (Thursday, August 28, 2008)]
[Rules and Regulations]
[Pages 50723-50726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19765]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2007-0027; FRL-8708-6]

Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Electric Generating Unit Multi-Pollutant Regulation

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. This SIP revision establishes 
limits on the emissions of nitrogen oxides
    (NOX) and sulfur dioxide (SO2) from 
Delaware's large electric generating units (EGUs). EPA is approving 
this SIP revision in accordance with the Clean Air Act (CAA).

DATES: Effective Date: This final rule is effective on September 29, 
2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2007-0027. All documents in the docket are listed in 
the http://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. Publicly available docket 
materials are available either electronically through http://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 & Environmental Control, 89 
Kings Highway, P.O. Box 1401, Dover, Delaware 19903.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On May 17, 2007 (72 FR 27787), EPA published a notice of proposed 
rulemaking (NPR) for the State of Delaware. The NPR proposed approval 
of Regulation No. 1146--Electric Generating Unit Multi-Pollutant 
Regulation. The formal SIP revision was submitted by Delaware on 
November 16, 2006.

[[Page 50724]]

II. Summary

    Regulation No. 1146 establishes limits on the emissions of 
NOX and SO2 from Delaware's large EGUs. The large 
EGUs subject to this regulation are Connective Delmarva Generating, 
Inc.'s Edge Moor Generating Station Units 3, 4 and 5; City of Dover's 
McKee Run Generating Unit 3; and NRG Energy, Inc.'s Indian Generating 
Station Units 1, 2, 3 and 4. Other specific requirements of Regulation 
No. 1146 and the rationale for EPA's proposed action are explained in 
the NPR and will not be restated here. On June 18, 2007, EPA received 
comments on its May 17, 2007 NPR. A summary of the comments submitted 
and EPA's response is provided in Section III of this document.

III. Summary of Public Comments and EPA Responses

    Comment: The commenter opposes the approval of Regulation No. 1146 
since it may be changed or invalidated in the current pending appeals 
process.
    Response: EPA disagrees with this comment. Regulation No. 1146 was 
appealed by three regulated entities: City of Dover's McKee Run 
Generating Station; NRG Energy Inc. (NRG); and Connectiv Delmarva 
Generating Station (Connective). The City of Dover and NRG appeals have 
been settled, and only Connective remains. Currently, Regulation No. 
1146 is in effect and enforceable in Delaware, and at this time, all 
covered units, including Connectiv units are in the process of 
designing and installing emission control equipment to meet the 
requirements of Regulation No. 1146.

    Comment: The commenter states that the SIP should not include 
requirements of Regulation No. 1146 that are not necessary for 
attaining compliance with the 8-hour ozone standard. The following are 
not elements of DNREC's plan to attainment of the 8-hour ozone 
standard: (1) Annual NOX emissions caps, and (2) annual 
SO2 emissions caps and emission rate limitations.
    Response: EPA disagrees with the premise of this comment. The 
reductions associated with Regulation No. 1146, including the annual 
NOX caps and the annual SO2 caps and emission 
rate limitations, will support the attainment of the 8-hour ozone and 
fine particulate matter (PM2.5) NAAQS. The emissions 
reductions also provide necessary support for the 8-hour ozone 
reasonable further progress plan. Meeting these goals will help clean 
Delaware's air. In understanding EPA's role with regard to review and 
approval or disapproval of rules submitted by states as SIP revisions, 
EPA can only take action upon the final adopted versions of a state's 
regulation as submitted by that state in its SIP revision request, and 
must approve a SIP that meets the minimum requirements of the CAA. It 
is not within EPA's authority, by its rulemaking on the SIP revision or 
otherwise, to change or modify the text or substantive requirements of 
a state regulation. Therefore, EPA cannot modify Delaware's regulation 
as recommended in the comment.
    Comment: The commenter states that Regulation No. 1146 overwrites 
the carefully-balanced provisions of the Clean Air Interstate Rule 
(CAIR). The units covered by Regulation No. 1146 are subject to CAIR 
and have already been allocated annual and ozone season NOX 
allowances under the CAIR Federal Implementation Plan (FIP) for 
Delaware. Regulation No. 1146 imposes inconsistent NOX and 
SO2 emission requirements on these same units. Requirements 
to comply with these additional state regulations are unnecessary and 
unduly burdensome for affected owners.
    Response: EPA disagrees with this comment. Regulation No. 1146 is 
not intended to replace the Federal CAIR requirements and does not 
relieve affected sources from participating in and complying with any 
CAIR cap-and-trade program requirements. The recent decision by the 
District Court for the District of Columbia Circuit in North Carolina 
v. EPA, No. 05-1244 (July 11, 2008), when final, would vacate CAIR. If 
CAIR is eventually vacated pursuant to the Court decision, the 
commenter's concern will no longer exist. However, even if CAIR remains 
in effect, a State may establish and may be required to establish 
requirements, including requirements for units covered by CAIR, to 
address local nonattainment problems. CAIR addresses the state's 
section 110(a)(2)(D) obligation to eliminate significant contribution 
to downwind nonattainment on the PM2.5 and 8-hour ozone 
NAAQS. In addition to meeting their 110(a)(2)(D) obligations, states 
are obliged to adopt such additional SIP provisions as are necessary to 
address NAAQS nonattainment within their own borders. In addition, they 
retain authority under section 116 of the CAA to adopt regulations more 
stringent than federal minimum requirements. The commenter has not 
identified, and indeed could not identify, any requirement of CAIR that 
prohibits states from adopting such emission reduction requirements or 
emission caps. For these reasons, Regulation No. 1146, thus, is not 
inconsistent with CAIR and the commenter's conclusions are incorrect, 
because, although more stringent than CAIR, it is intended to address 
such local contributions to nonattainment areas. EPA therefore 
concludes that Regulation No. 1146 is approvable whether or not CAIR is 
eventually vacated.

IV. Final Action

    EPA is approving Delaware's EGU Multi-Pollutant Regulation as a 
revision to Delaware SIP that was submitted on November 16, 2006 
pertaining to NOX and SO2. This regulation will 
result in the reduction of NOX and SO2 emissions 
from the affected sources.

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 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 
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

[[Page 50725]]

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 Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by October 27, 2008. 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 Delaware's EGU Multi-Pollutant 
Regulation, 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, Reporting and recordkeeping 
requirements, Sulfur oxides.

    Dated: August 18, 2008.
William T. Wisniewski,
Acting Regional Administrator, Region III.

0
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 adding 
entries for Regulation No. 1146--Electric Generating Unit Multi-
Pollutant Regulation at the end of the table to read as follows:

Sec.  52.420  Identification of plan.

* * * * *
    (c) * * *

                                  EPA-Approved Regulations in the Delaware SIP
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                                                  State effective                                Additional
        State citation           Title/subject          date          EPA approval date         explanation
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                                                  * * * * * * *
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          Regulation                       Electric Generating Unit (EGU) Multi-Pollutant Regulation
           No. 1146
----------------------------------------------------------------------------------------------------------------
Section 1.0..................  Preamble........           12/11/06  08/28/08 [Insert page  Except for provisions
                                                                     number where the       pertaining to
                                                                     document begins].      mercury emissions.
Section 2.0..................  Applicability...           12/11/06  08/28/08 [Insert page  Except for provisions
                                                                     number where the       pertaining to
                                                                     document begins].      mercury emissions.
Section 3.0..................  Definitions.....           12/11/06  08/28/08 [Insert page  Except for provisions
                                                                     number where the       pertaining to
                                                                     document begins].      mercury emissions.
Section 4.0..................  NOX Emissions              12/11/06  08/28/08 [Insert page  .....................
                                Limitations.                         number where the
                                                                     document begins].
Section 5.0..................  SO2 Emissions              12/11/06  08/28/08 [Insert page  .....................
                                Limitations.                         number where the
                                                                     document begins].
Section 7.0..................  Recordkeeping              12/11/06  08/28/08 [Insert page  Except for provisions
                                and Reporting.                       number where the       pertaining to
                                                                     document begins].      mercury emissions.
Section 8.0..................  Compliance Plan.           12/11/06  08/28/08 [Insert page  Except for provisions
                                                                     number where the       pertaining to
                                                                     document begins].      mercury emissions.
Section 9.0..................  Penalties.......           12/11/06  08/28/08 [Insert page  Except for provisions
                                                                     number where the       pertaining to
                                                                     document begins].      mercury emissions.
Table I......................  Annual NOX Mass            12/11/06  08/28/08 [Insert page  .....................
                                Emissions                            number where the
                                Limits.                              document begins].
Table II.....................  Annual SO2 Mass            12/11/06  08/28/08 [Insert page  .....................
                                Emissions                            number where the
                                Limits.                              document begins].
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[[Page 50726]]

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[FR Doc. E8-19765 Filed 8-27-08; 8:45 am]
BILLING CODE 6560-50-P
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