2010-5581. Approval and Promulgation of Air Quality Implementation Plans; Delaware; Amendment to Electric Generating Unit Multi-Pollutant Regulation

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Delaware. The revision is an amendment to the Electric Generating Unit Multi-Pollutant Regulation of Delaware's Administrative Code, and it modifies the sulfur dioxide (SO₂) mass emissions limit associated with Conectiv Edge Moor Unit 5 beginning in calendar year 2009. This action is being taken under the Clean Air Act (CAA or the Act).

DATES:

Effective Date: This final rule is effective on April 15, 2010.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2009-0804. 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 and Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware 19901.

FOR FURTHER INFORMATION CONTACT:

Irene Shandruk, [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

On January 5, 2010 (75 FR 2), EPA published a notice of proposed rulemaking (NPR) for the State of Delaware. The NPR proposed approval of Delaware's SIP revision pertaining to Regulation No. 1146—Electric Generating Unit (EGU) Multi-Pollutant Regulation. The regulation was adopted in order to impose lower emissions limits of nitrogen oxides (NO_X) and SO₂ in order to help Delaware attain and maintain the national ambient air quality standards (NAAQS) for ozone and fine particulate matter (PM_2.5), as well as to assist Delaware in achieving the emissions reductions needed to support the State's 8-hour ozone reasonable further progress plan (RFP). The formal SIP revision was submitted by the Delaware Department of Natural Resources and Environmental Control (DNREC) November 16, 2006. No comments were received on the NPR.

II. Summary of SIP Revision

On October 7, 2009, EPA received a SIP revision to amend Regulation No. 1146. This SIP revision was the result of a settlement agreement between Conectiv Delmarva Generating, Inc. and DNREC in December 2008. Conectiv had filed an appeal challenging the regulation for their Edge Moor 5 facility. The emissions limit of 2,427 tons per year limited the facility from operating in extreme circumstances in the event that failure at other production units would require them to exceed that limit in order to supply the needed electricity. The limit of 4,600 tons per year was determined to be an adequate limit after an analysis of the facility's history of operation and the estimate of future operations using the low sulfur (0.5%) residual fuel to generate electricity at the 446 megawatt oil-fired steam generating unit. Currently, the facility operates at a 10% capacity factor. If so required, the new emissions limit would allow the facility to operate at a 45% capacity factor.

The Delaware Department of Natural Resources and Environmental Control requested that a revision to the State's SIP concerning an amendment, which modifies the SO₂ mass emissions limit associated with Conectiv Edge Moor Unit 5, be approved.

III. Final Action

Delaware has met the requirements concerning an amendment to the Electric Generating Unit Multi-Pollutant Regulation of Delaware's Administrative Code, which modifies the SO₂ mass emissions limit associated with Conectiv Edge Moor Unit 5. The purpose of this revision is to assist Delaware in achieving the emissions reductions needed to support the State's 8-hour ozone RFP, and therefore, EPA is approving it.

IV. Statutory and Executive Order Reviews

A. General Requirements

Under the Clean Air Act, 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 Clean Air Act. 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 Clean Air Act; 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 May 17, 2010. 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 approving Delaware's SIP revision pertaining to an amendment to the Electric Generating Unit Multi-Pollutant Regulation of Delaware's Administrative Code, which modifies the SO₂ mass emissions limit associated with Conectiv Edge Moor Unit 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
• Nitrogen dioxide
• Ozone
• Particulate matter, and Sulfur oxides

Dated: February 25, 2010.

W.C. Early,

Acting Regional Administrator, Region III.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart I—Delaware

2. In § 52.420, the table in paragraph (c) is amended under Regulation No. 1146 by removing the entry for Table II and adding the entry for Table 5-1 to read as follows:

§ 52.420

Identification of plan.

* * * * *

(c) * * *

EPA-Approved Regulations in the Delaware SIP

State citation	Title/subject	State effective date	EPA approval date	Additional explanation
*         *         *         *         *         *         *
Regulation No. 1146 Electric Generating Unit (EGU) Multi-Pollutant Regulation NO
*         *         *         *         *         *         *
Table 5-1 (Formerly Table II)	Annual SO2 Mass Emissions Limit	9/11/08 10/10/09	March 16, 2010 [Insert page number where the document begins]	Modified emissions limit for Conectiv Edge Moor Unit 5.
*         *         *         *         *         *         *

* * * * *