Approval and Promulgation of Air Quality Implementation Plans; DelawareGeneral Conformity Rule

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE030-1008a; FRL-5856-1]

Approval and Promulgation of Air Quality Implementation Plans;

Delaware--General Conformity Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

submitted by the State of Delaware. This revision consists of

Delaware's regulation for General Conformity which sets forth policy,

criteria, and procedures for demonstrating and assuring conformity of

non-transportation related federal projects to all applicable

implementation plans. The intended effect of this action is to approve

Delaware's General Conformity regulation as a SIP revision.

DATES: This action is effective September 15, 1997 unless notice is

received on or before Septmeber 14, 1997 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 may be mailed to David L. Arnold, Chief, Ozone/CO &

Mobile Sources Section, Mailcode 3AT21, 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 Air,

Radiation, and Toxics Division, U.S. Environmental Protection Agency,

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

the Air and Radiation Docket and Information Center, Environmental

Protection Agency, 401 M Street, S.W., Washington, D.C. 20460; 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 office or via e-mail at [email protected].

While information may be requested via e-mail, comments must be

submitted in writing to the above Region III address.

SUPPLEMENTARY INFORMATION: On October 2, 1996, the Delaware Department

of Natural Resources & Environmental Control (DNREC) submitted a formal

revision to its State Implementation Plan (SIP) to EPA for

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the purpose of meeting the requirements of 40 CFR 51.851, State

Implementation Plans, found under 40 CFR part 51, subpart W,

Determining Conformity of General Federal Actions to State and Federal

Implementation Plans. Part 51, subpart W is commonly referred to as the

federal General Conformity Rule. The DNREC SIP revision which is the

subject of this approval action consists of Delaware Regulation 35--

Conformity of General Federal Actions to the State Implementation Plans

(General Conformity). This action to approve Delaware's General

Conformity regulation as a SIP revision is being taken under section

110 of the Clean Air Act (CAA).

The revision to Regulation 26--Motor Vehicle Emission Inspection

Program, that was also submitted by DNREC on October 2, 1996 is the

subject of a separate rulemaking document.

Summary of the SIP Revision

Delaware Regulation 35, Conformity of General Federal Actions to

the State Implementation Plans (General Conformity), establishes

standards and procedures to follow when evaluating the conformity of

non-transportation related federal projects to all applicable

implementation plans developed pursuant to section 110 and Part D of

the CAA.

At 40 CFR part 51, subpart W, EPA promulgated the federal rule for

General Conformity to implement section 176(c) of the CAA. This federal

rule sets forth policy, criteria, and procedures for demonstrating and

assuring the conformity of federal actions to all applicable

implementation plans developed pursuant to section 110 and part D of

the CAA. The rule generally applies to federal actions except:

(1) Those required under the transportation conformity rule (40 CFR

part 93, subpart A);

(2) Actions with associated emissions below specified de minimis

levels; and

(3) Certain other actions which are exempt or presumed to conform

to applicable air quality implementation plans.

At 40 CFR 51.851, State Implementation Plans, EPA promulgated the

requirements that must be adopted by a state and submitted as a SIP

revision to implement the General Conformity provisions. The provisions

adopted by Delaware for General Conformity are those contained in and

required by the federal rule. EPA has reviewed Delaware Regulation 35,

for General Conformity, and has determined that it satisfies the

requirements of 40 CFR 51.851. A Technical Support Document (TSD) has

been prepared which details the EPA's evaluation of Delaware Regulation

35. Interested parties may obtain a copy of the TSD by contacting the

EPA Regional Office listed in the ADDRESSES section of this document.

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 and critical comments be filed. This action will be

effective September 14, 1997, unless, by August 14, 1997, 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 September 15, 1997.

Final Action

EPA is approving Delaware Regulation 35, for General Conformity,

submitted by the State of Delaware on October 2, 1996 as a revision to

the Delaware SIP.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any state implementation plan. Each request for revision to

the state 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

The Office of Management and Budget (OMB) has exempted this action

from review under Executive Order 12866.

B. Regulatory Flexibility Act

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 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).

C. Unfunded Mandates

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

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

tribal governments, or to the 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

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Office prior to the publication of the rule of 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 to approve a revision to the Delaware SIP for General

Conformity must be filed in the United States Court of Appeals for the

appropriate circuit by September 15, 1997. Filing a petition for

reconsideration by the Administrator of this 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 a rule or

action.

This action pertaining to the approval of Delaware Regulation 35

for General Conformity Rule may not be challenged later in the

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

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations.

Dated: June 30, 1997.

Thomas Voltaggio,

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. 7401-7671q.

Subpart I--Delaware

2. Section 52.420 is amended by adding paragraphs (c)(58) to read

as follows:

Sec. 52.420 Identification of plan.

* * * * *

(c) * * *

(58) Revisions to the Delaware State Implementation Plan on October

2, 1996 by the Delaware Department of Natural Resources & Environmental

Control:

(i) Incorporation by reference.

(A) A letter of October 2, 1996 from the Delaware Department of

Natural Resources & Environmental Control transmitting the General

Conformity Rule.

(B) Delaware Regulation 35--Conformity of General Federal Actions

to the State Implementation Plans (General Conformity), effective

August 14, 1996.

(ii) Additional Material from the Delaware's October 2, 1996

submittal pertaining to Regulation 35.

[FR Doc. 97-18569 Filed 7-14-97; 8:45 am]

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