Approval and Promulgation of Air Quality Implementation Plans; DelawareEmission Statement Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE013-5915a; FRL-5424-9]

Approval and Promulgation of Air Quality Implementation Plans;

Delaware--Emission Statement Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision

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submitted by the State of Delaware. This revision consists of an

emission statement program for stationary sources that emit volatile

organic compounds (VOCs) and/or nitrogen oxides (NOX) at or above

specified actual emission threshold levels within the state of Delaware

(Kent, New Castle, and Sussex Counties). The intended effect of this

action is to approve a regulation for annual reporting of actual

emissions by sources that emit VOC and/or NOX within the state in

accordance with the 1990 Clean Air Act (CAA). This action is being

taken under section 110 of the CAA.

DATES: This action is effective April 29, 1996, unless notice is

received on or before March 29, 1996, that adverse or critical comments

will be submitted. If the effective date is delayed, timely notice will

be published in the Federal Register.

ADDRESSES: Comments must be mailed to Marcia L. Spink, Associate

Director, Air Programs, Mailcode 3AT00, U.S. Environmental Protection

Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania

19107. Copies of the documents relevant to this action are available

for public inspection during normal business hours at the EPA office

listed above; the Air and Radiation Docket and Information Center, U.S.

Environmental Protection Agency, 401 M Street, SW., Washington, DC

20460; and 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) 597-3164, at the EPA

Region III address.

SUPPLEMENTARY INFORMATION: On January 11, 1993, the Delaware Department

of Natural Resources and Environmental Control (DNREC) submitted a SIP

revision to EPA on Emission Statements. This revision would amend

Delaware's Regulations Governing the Control of Air Pollution: section

2 of Regulation 1 (Definitions and Administrative Principles), and

section 1 of Regulation 17 (Source Monitoring, Recordkeeping and

Reporting), and also add a new section 7 of Regulation 17.

I. Background

The air quality planning and SIP requirements for ozone

nonattainment and transport areas are set out in subparts I and II of

part D of title I of the CAA, as amended by the Clean Air Act

Amendments of 1990. EPA published a ``General Preamble'' describing

EPA's preliminary views on how it intends to review SIPs and SIP

revisions submitted under Title I of the CAA, including those state

submittals for ozone transport areas within the states (see 57 FR 13498

(April 16, 1992) (``SIP: General Preamble for the Implementation of

Title I of the Clean Air Act Amendments of 1990''), 57 FR 18070 (April

28, 1992) (``Appendices to the General Preamble''), and 57 FR 55620

(November 25, 1992) (``SIP: NOX Supplement to the General

Preamble'')).

EPA also issued a draft guidance document describing the

requirements for the emission statement programs discussed in this

action, entitled ``Guidance on the Implementation of an Emission

Statement Program'' (July, 1992). EPA is also conducting a rulemaking

process to modify Title 40, Part 51 of the CFR to reflect the

requirements of the emission statement program.

Section 182 of the CAA sets out a graduated control program for

ozone nonattainment areas. Section 182(a) sets out requirements

applicable in marginal ozone nonattainment areas, which are also

applicable by sections 182 (b), (c), (d), and (e) to all other ozone

nonattainment areas. Among the requirements in section 182(a) is a

program for stationary sources to prepare and submit to the state each

year emission statements certifying their actual emissions of VOCs and

NOX. This section of the CAA provides that the states are to

submit a revision to their SIPs by November 15, 1992 establishing this

emission statement program.

If a source emits either VOC or NOX at or above the designated

minimum reporting level, the other pollutant should be included in the

emission statement, even if it is emitted at levels below the specified

cutoffs.

States may waive, with EPA approval, the requirement for an

emission statement for classes or categories of sources with less than

25 tons per year of actual plant-wide NOX or VOC emissions in

nonattainment areas if the class or category is included in the base

year and periodic inventories and emissions are calculated using

emissions factors established by EPA (such as those found in EPA

publication AP-42) or other methods acceptable to EPA.

At minimum, the emission statement data should include:

--Certification of data accuracy;

--Source identification information;

--Operating schedule;

--Emissions information (to include annual and typical ozone season day

emissions);

--Control equipment information; and

--Process data.

EPA developed emission statements data elements to be consistent

with other source and state reporting requirements. This consistency is

essential to assist states with quality assurance for emission

estimates and to facilitate consolidation of all EPA reporting

requirements.

II. EPA's Evaluation of Delaware's Submittal

A. Procedural Background

In accordance with the requirements of 40 CFR 51.102, the State of

Delaware held a public hearing on September 29, 1993 in Dover, Delaware

to solicit public comments on the implementation plan for the state.

The plan was submitted to EPA by the Governor's designee on January 11,

1993.

B. Components of Delaware's Emission Statement Program

There are several key and specific components of an acceptable

emission statement program. Specifically, Delaware must submit a

revision to its SIP consisting of an emission statement program that

meets the minimum requirements for reporting by the sources and the

state. For the emission statement program to be approvable, Delaware's

SIP revision must include, at a minimum, definitions and provisions for

applicability, compliance, and specific source reporting requirements

and reporting forms.

Regulation 1 (Definitions and Administrative Principles), section

2; and Regulation 17 (Source Monitoring, Recordkeeping and Reporting),

section 1, has been revised by amending and adding the definitions of

the following terms: actual emissions, annual fuel process rate,

certifying individual, control efficiency, control equipment

identification code, emission factor, emission statement, estimated

emission method code, estimated emission units, measured emission

method code, measured emission units, peak ozone season, percentage

annual throughput, periodic ozone SIP inventory, point, potential to

emit, process rate, segment, source classification code, and volatile

organic compounds.

Regulation 17, section 7 (Emission Statement) requires a person who

owns and operates any installation, source, or premises located in

areas designated by the CAA as an ozone nonattainment area to report

the levels of emissions from all stationary sources of VOCs and

NOX. The state may, with EPA approval, waive the emission

statement requirements for classes or categories of

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stationary sources with facility-wide actual emissions of less than 25

tons/year of VOC or NOX if the class or category is included in

the base year and periodic ozone inventories, and the actual emissions

are calculated using EPA approved emission factors or other methods

acceptable to EPA. Regulation 17, section 7, also requires emission

statements for all stationary sources located in ozone attainment areas

that emit or have the potential to emit 50 tons/year of VOC and/or

NOX. This section also requires that a certifying official for

each facility provide Delaware with a statement reporting emissions by

April 30 of each year beginning with April 30, 1993 for the emissions

discharged during the previous calendar year. This section also

delineates specific requirements for the content of these annual

emission statements.

C. Enforceability

The State of Delaware has provisions in its SIP which ensure that

the emission statement requirements of section 182(a)(3)(B) and

sections 184(b)(2) and 182(f) of the CAA, as required by section 2 of

Delaware Regulation Number 1 (Definitions and Administrative

Principles) and sections 1 and 7 of Regulation 17 (Source Monitoring,

Recordkeeping and Reporting), are adequately enforced.

EPA has determined that the submittal made by the State of Delaware

satisfies the relevant requirements of the CAA and EPA's guidance

document, ``Guidance on the Implementation of an Emission Statement

Program'' (July 1992). EPA's detailed review of Delaware's Emission

Statement Program is contained in a Technical Support Document (TSD)

which is available, upon request, from the EPA Regional Office listed

in the ADDRESSES section of this document.

III. Final Action

EPA is approving a revision to the Delaware SIP to include an

Emission Statement Program consisting of revisions to section 2,

Regulation 1; and section 1, and a new section 7 of Regulation 17. This

revision was submitted to EPA by the State of Delaware on January 11,

1993.

EPA is approving this SIP revision without prior proposal because

the Agency views this as a noncontroversial amendment and anticipates

no adverse comments. However, in a separate document in this Federal

Register publication, EPA is proposing to approve the SIP revision

should adverse or critical comments be filed. This action will become

effective April 29, 1996 unless, by March 29, 1996, adverse or critical

comments are received.

If EPA receives such comments, this action will be withdrawn before

the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

proposed rule. EPA will not institute a second comment period on this

action. Any parties interested in commenting on this action should do

so at this time. If no such comments are received, the public is

advised that this action will be effective on April 29, 1996.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision of any SIP. Each request for revision to the SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and subchapter I, part D of the CAA

do not create any new requirements but simply approve requirements that

the state is already imposing. Therefore, because the Federal SIP

approval does not impose any new requirements, the Administrator

certifies that it does not have a significant impact on any small

entities affected. Moreover, due to the nature of the Federal-State

relationship under the CAA, preparation of a regulatory flexibility

analysis would constitute Federal inquiry into the economic

reasonableness of state action. The CAA forbids EPA to base its actions

concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427

U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to state, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated costs of $100

million or more to either state, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves pre-

existing requirements under state or local law, and imposes no new

Federal requirements. Accordingly, no additional costs to state, local,

or tribal governments, or to the private sector, result from this

action.

This action has been classified as Table 3 action for signature by

the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 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 April 29, 1996. Filing a petition for

reconsideration by the Administrator of this final rule does not affect

the finality of this rule 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 Emission Statement Program 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, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Volatile

organic compounds, Oxides of nitrogen, Ozone, Reporting and

recordkeeping requirements.

Dated: February 2, 1996.

W.T. Wisniewski,

Acting Regional Administrator, Region III.

40 CFR part 52 is amended as follows:

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PART 52--[AMENDED]

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

Authority: 42 U.S.C. 7401-7671q.

Subpart I--Delaware

2. Section 52.420 is amended by adding paragraph (c)(52) to read as

follows:

Sec. 52.420 Identification of plan.

* * * * *

(c) * * *

(52) Revisions to the Delaware State Implementation Plan submitted

by the Secretary, Delaware Department of Natural Resources and

Environmental Control, on January 11, 1993.

(i) Incorporation by reference.

(A) Letter dated January 11, 1993 from the Secretary, Delaware

Department of Natural Resources and Environmental Control, submitting a

revision to the Delaware State Implementation Plan.

(B) Amended section 2, Regulation 1 (Definitions and Administrative

Principles). Amended section 1, and added new section 7 of Regulation

17 (Source Monitoring, Recordkeeping and Reporting). The amendments to

Regulations 1 and 17, and the addition of section 7 of Regulation 17,

were effective on January 11, 1993. This revision consists of an

emission statement program for stationary sources which emit volatile

organic compounds (VOC) and/or nitrogen oxides (NOX) at or above

specified actual emission threshold levels. This program is applicable

state-wide.

(ii) Additional material.

(A) Remainder of January 11, 1993 state submittal pertaining to

Delaware Emission Statement Program.

* * * * *

[FR Doc. 96-4445 Filed 2-27-96; 8:45 am]

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