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

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Environmental Protection Agency (EPA).


Final rule.


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).


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


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 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 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.

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Rose Quinto, (215) 814-2182, or by e-mail at

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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. Start Printed 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 Start Printed Page 50725Act 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).)

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List of Subjects in 40 CFR Part 52

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Dated: August 18, 2008.

William T. Wisniewski,

Acting Regional Administrator, Region III.

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is amended as follows:

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

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

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Subpart I—Delaware

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2. In § 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:

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Identification of plan.
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(c) * * *

EPA-Approved Regulations in the Delaware SIP

State citationTitle/subjectState effective dateEPA approval dateAdditional explanation
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RegulationElectric Generating Unit (EGU) Multi-Pollutant Regulation
No. 1146
Section 1.0Preamble12/11/0608/28/08 [Insert page number where the document begins]Except for provisions pertaining to mercury emissions.
Section 2.0Applicability12/11/0608/28/08 [Insert page number where the document begins]Except for provisions pertaining to mercury emissions.
Section 3.0Definitions12/11/0608/28/08 [Insert page number where the document begins]Except for provisions pertaining to mercury emissions.
Section 4.0NOX Emissions Limitations12/11/0608/28/08 [Insert page number where the document begins]
Section 5.0SO2 Emissions Limitations12/11/0608/28/08 [Insert page number where the document begins]
Section 7.0Recordkeeping and Reporting12/11/0608/28/08 [Insert page number where the document begins]Except for provisions pertaining to mercury emissions.
Section 8.0Compliance Plan12/11/0608/28/08 [Insert page number where the document begins]Except for provisions pertaining to mercury emissions.
Section 9.0Penalties12/11/0608/28/08 [Insert page number where the document begins]Except for provisions pertaining to mercury emissions.
Table IAnnual NOX Mass Emissions Limits12/11/0608/28/08 [Insert page number where the document begins]
Table IIAnnual SO2 Mass Emissions Limits12/11/0608/28/08 [Insert page number where the document begins]
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[FR Doc. E8-19765 Filed 8-27-08; 8:45 am]