Approval and Promulgation of Air Quality Implementation Plans; Delaware15 Percent Rate of Progress Plan

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE027-1006; FRL-5823-3]

Approval and Promulgation of Air Quality Implementation Plans;

Delaware--15 Percent Rate of Progress Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is conditionally approving a State Implementation Plan

(SIP) revision submitted by the State of Delaware to meet the 15

Percent Rate of Progress Plan (RPP) requirements of the Clean Air Act

(CAA). EPA is conditionally approving the SIP because the 15 Percent

RPP, submitted by Delaware, will result in significant emission

reductions in volatile organic compounds (VOCs) from the 1990 baseline

and thus, will provide progress toward attainment of the ozone

standard. This action is being taken under section 110 of the CAA.

EFFECTIVE DATE: The final rule is effective on June 18, 1997.

ADDRESSES: Copies of the documents relevant to this action are

available for public inspection during normal business hours at the

Air, Radiation, and Toxics Division, Environmental Protection Agency,

Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107;

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) 566-2182, at the

EPA Region III address above.

SUPPLEMENTARY INFORMATION: On February 5, 1997 (62 FR 5357), EPA

published a notice of proposed rulemaking (NPR) for the State of

Delaware. The NPR proposed conditional approval of Delaware's 15

Percent RPP. The formal SIP revision was submitted by the Delaware

Department of Natural Resources and Environmental Control (DNREC) on

February 17, 1995.

Other specific requirements of the 15 Percent RPP and the rationale

for EPA's proposed action are explained in the NPR and will not be

restated here. No public comments were received during the comment

period on the NPR. On March 6, 1997, EPA received a letter form the

Secretary of Delaware DNREC committing to address the deficiencies

identified in the proposed I/M SIP by a date certain within 1 year of

this final conditional ruling.

Final Action

EPA is conditionally approving the 15 Percent RPP as a revision to

the Delaware SIP. As credits from Delaware's enhanced I/M program are

part of the 15 Percent RPP, EPA is also, via a separate rulemaking,

conditionally approving Delaware's I/M SIP. Once Delaware satisfies the

conditions of its I/M rulemaking and receives full approval, EPA will

fully approve the 15 Percent RPP. Conversely, if the I/M rulemaking

converts to a final disapproval, EPA's conditional approval of the 15

Percent RPP would also convert to a disapproval.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the implementation

plan shall be considered separately in light of specific technical,

economic, and environmental factors and in relation to relevant

statutory and regulatory requirements.

Administrative Requirements

A. Executive Order 12866

This action has been classified as a 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.

B. Regulatory Flexibility Act

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

must prepare

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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.

Conditional approvals of SIP submittals under section 110 and

subchapter I, part D of the CAAA 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, EPA 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 CAAA, preparation of a regulatory

flexibility analysis would constitute Federal inquiry into the economic

reasonableness of state action. The CAAA forbids EPA to base its

actions concerning SIPs on such grounds. Union Electric Co. v US EPA,

427 US 246, 256-66 (1976); 42 U.S.C. 7410(a)(2).

If the conditional approval is converted to a disapproval under

section 110(k), based on the State's failure to meet the commitment, it

will not affect any existing state requirements applicable to small

entities. Federal disapproval of the state submittal does not affect

its state-enforceability. Moreover, EPA's disapproval of the submittal

does not impose a new Federal requirement. Therefore, EPA certifies

that this disapproval action does not have a significant impact on a

substantial number of small entities because it does not remove

existing requirements nor does it substitute a new federal requirement.

C. Unfunded Mandates

Under Sections 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

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 conditional 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,

conditionally approving Delaware 15% Rate of Progress Plan, approves

pre-existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to private sector, result from this action.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to the publication of the rule in

today's Federal Register. This rule is not a ``major rule'' as defined

by 5 U.S.C. 804(2).

E. 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 July 18, 1997. Filing a petition for

reconsideration by the Administrator of this final rule conditionally

approving Delaware's 15% RPP 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

pertaining to the Delaware 15% RPP may not be challenged later in

proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Parts 52

Environmental protection, Air pollution control, Hydrocarbons,

Reporting and recordkeeping, Ozone, Volatile organic compounds.

Dated: April 29, 1997.

William T. Wisniewski,

Acting Regional Administrator Region III.

Chapter I, title 40, of the Code of Federal Regulations is amended

as follows:

PART 52--[AMENDED]

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

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

Subpart I--Delaware

2. Section 52.424 is added to read as follows:

Sec. 52.424 Conditional approval

(a) EPA is conditionally approving as a revision to the Delaware

State implementation plan the 15 Percent Rate of Progress Plan and

associated contingency measures for the Delaware ozone nonattainment

areas classified as severe, namely Kent and New Castle Counties,

submitted by the Secretary of Delaware Department of Natural Resources

and Environmental Control on February 17, 1995. EPA is also

conditionally approving the I/M SIP in a separate rulemaking, as

credits from that program are part of the 15 Percent RPP. By no later

than one year from June 18, 1997, Delaware must submit a revised I/M

SIP that meets the conditions stated in the I/M SIP final rulemaking.

Once Delaware satisfies the conditions of its I/M rulemaking and

receives full approval, EPA will fully approve the 15 Percent RPP SIP.

Conversely, if the I/M rulemaking converts to a final disapproval,

EPA's conditional approval of the 15 Percent RPP SIP would also convert

to a disapproval.

(b) [Reserved].

[FR Doc. 97-12634 Filed 5-16-97; 8:45 am]

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