Approval and Promulgation of Air Quality Implementation Plan; Delaware; Regional Haze State Implementation Plan for the Second Implementation Period

SUPPLEMENTARY INFORMATION:

I. Background

On August 8, 2022, the Delaware Department of Natural Resources and Environmental Control (DNREC) submitted a revision to its SIP to address regional haze for the second implementation period; with a supplement submitted on March 7, 2024 which included title V permit provisions for three facilities owned by Calpine Mid-Atlantic Generation, LLC to be incorporated into the Delaware SIP. EPA reviewed and evaluated the State's selection and modification of the applicable title V permits to incorporate the regional haze requirements of the second implementation period. DNREC updated Title V permits for Calpine Christiana Energy Center, Calpine Delaware City Energy Center, and Calpine West Energy Center after conducting four-factor analyses and added the 88 ppm NO_X emission limit during April and October. Delaware issued the new permits on May 19, 2021 and included them in appendix 10-2 of its SIP submittal; redacted copies of these permits were subsequently resubmitted to EPA with an effective date of December 19, 2023 so that the portions relevant to compliance with the regional haze requirements of the second planning period could be incorporated into the Delaware SIP. DNREC made this SIP submission to satisfy the requirements of the CAA's regional haze program pursuant to CAA sections 169A and 169B and 40 Code of Federal Regulations (CFR) 51.308. The full substance of the Delaware's regional haze SIP submission for the second planning period is discussed at length in the notice of proposed rulemaking (NPRM).

On August 19, 2024 (89 FR 67018), EPA published an NPRM proposing approval of Delaware's August 8, 2022 SIP submission and its March 7, 2024 supplement as satisfying the regional haze requirements for the second implementation period contained in the CAA and 40 CFR 51.308. EPA is now determining that the Delaware regional haze SIP submission for the second implementation period meets the applicable statutory and regulatory requirements and is thus approving Delaware's submission into its SIP.

II. EPA's Response to Comments Received

EPA received three comments in response to the NPRM, two of which were unique. One comment originated from the Mid-Atlantic/Northeast Visibility Union (MANE-VU) in support of the EPA's proposed action, and the other comment originated from an individual and was not relevant. These comments are available in the docket for this action via Docket ID Number EPA-R03-OAR-2023-0301 on the www.regulations.gov website. EPA's summary of and response to the relevant comment is provided below.

Comment: MANE-VU submitted comments in support of the EPA's proposed action, stating:

MANEVU supports EPA's proposal to approve Delaware's regional haze State implementation plan (SIP) revision submitted on August 8, 2022, and supplemented on March 7, 2024, as satisfying applicable requirements under the Clean Air Act (CAA) and EPA's Regional Haze Rule (RHR) for the second implementation period of the regional haze program. MANEVU agrees that Delaware's haze SIP revision meets the requirements of CAA sections 169A and 169B and the RHR at 40 CFR 51.308. MANEVU appreciates EPA's careful evaluation of Delaware's SIP submittal, as well as the constructive input and review that the federal land managers provided to Delaware and the other MANEVU States as they developed their regional haze SIPs. MANEVU notes that reducing haze-forming pollutants improves scenic vistas in our national parks and wilderness areas while also providing other economic, ecosystem and public health co-benefits.

Response: EPA appreciates and agrees with this comment.

III. Final Action

For the reasons set forth at length in the NPRM, EPA is approving, as a SIP revision, Delaware's August 8, 2022 SIP submission and its March 7, 2024 supplement as satisfying the regional haze requirements for the second implementation period contained in 40 CFR 51.308(f).

IV. Incorporation by Reference

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of specific provisions of the revised title V permits for Calpine Christiana Energy Center, Calpine Delaware City Energy Center, and Calpine West Energy Center, dated and effective December 19, 2023, between DNREC and Calpine Mid-Atlantic Generation, LLC, which includes emission limits and associated permit conditions for these facilities to comply with Regional Haze requirements for the 2nd Planning Period, as discussed in section I of this document and included in the amendments to 40 CFR part 52 set forth below. These permit revisions are contained in DNREC's supplemental SIP submittal dated March 7, 2024, submitted on behalf of the State of Delaware; the portions of these permit revisions that will be incorporated by reference into the SIP are clarified by the DNREC Air Quality Division Director via a letter dated May 28, 2024. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 3 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rule of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.

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 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 action:

• 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);
• 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 inExecutive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject toExecutive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject toExecutive 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

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.

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 (EJ) 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 EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of Executive Order 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 23, 2024. 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 may not be challenged later in proceedings to enforce its requirements (See section 307(b)(2)).

For the reasons stated in the preamble, EPA amends 40 CFR part 52 as follows:

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

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

2. Amend § 52.420:

a. In the table in paragraph (d) by adding entries for “Calpine Mid-Atlantic Generation, LLC—Christiana Energy Center”; “Calpine Mid-Atlantic Generation, LLC—Delaware City Energy Center”; and “Calpine Mid-Atlantic Generation, LLC—West Energy Center” at the end of the table; and

b. In the table in paragraph (e) by adding an entry for “Regional Haze Plan from 2018-2028” at the end of the table.

The additions read as follows:

(d) * * *