Approval and Promulgation of Air Quality Implementation Plans; State of Delaware: Open Burning and Non-CTG RACT Regulations

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE027-1004a, DE020-1004a; FRL-5679-4]

Approval and Promulgation of Air Quality Implementation Plans;

State of Delaware: Open Burning and Non-CTG RACT Regulations

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 two

control measures to reduce volatile organic compound (VOC) emissions.

The intended effect of this action is to approve these two control

measures which are creditable towards Delaware's 15 Percent Rate of

Progress Plan (RPP). This action is being taken under section 110 of

the Clean Air Act.

DATES: This action is effective May 12, 1997 unless notice is received

on or before April 11, 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, 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, Environmental Protection Agency, Region

III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107; 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 February 17, 1995, the Delaware

Department of Natural Resources & Environmental Control (DNREC)

submitted revisions to its State Implementation Plan (SIP) for

Delaware. One of those revisions pertains to the 15% Rate of Progress

Plan (RPP) for the State of Delaware. The other revision is Delaware

Regulation 13--Open Burning, which is one of the control measures to

achieve the 15% reduction. Included in this latter revision are

definitions pertaining to the open burning regulation, as well as

additions and deletions from Delaware Regulation 1, Definitions and

Administrative Principles. The definitions are for ceremonial fires,

conservation practices, open burning, prescribed burning, rubbish,

silviculture, and trade waste. The 15% Rate of Progress Plan, itself,

which was submitted on February 17, 1995 is the subject of a separate

rulemaking.

On January 20, 1994, Delaware submitted a revision to Regulation

24, section 43, Other Facilities that Emit Volatile Organic Compounds

(VOCs). This section number was changed to section 50 on July 28, 1995

(60 FR 38712). A direct final approval was published for the Delaware

VOC regulation on May 3, 1995 (60 FR 21707), excluding the Non-Control

Technique Guideline (Non-CTG) RACT part: sections 50(a)(5) and

50(b)(3). These sections pertain to control requirements on wood

furniture coatings, industrial wastewater, and shipbuilding and repair;

and submitting an alternative control plan. This Non-CTG RACT

regulation is one of the control measures for the 15% RPP.

Background

Section 182(b)(1) of the Clean Air Act as amended in 1990 (CAAA),

requires ozone nonattainment areas with classifications of moderate and

above to develop plans to reduce area-wide volatile organic compound

(VOC) emissions by 15% from a 1990 baseline. The plans were to be

submitted by November 15, 1993 and the reductions were to be achieved

within 6 years of enactment or November 15, 1996. The VOC reductions

achieved by Delaware Regulation 13--Open Burning and Delaware

Regulation 24, Section 50--Non-CTG RACT are creditable toward the 15%

plan.

Non-CTG RACT

Section 50 of Delaware Air Regulation 24 is entitled, Other

Facilities that Emit Volatile Organic Compounds. This section is also

called the Non-CTG RACT regulation since it applies to any facility

that emits VOCs and is not otherwise subject to any other federally

approved RACT regulation of the Delaware SIP that was developed

pursuant to a CTG. The CAAA requires the implementation of RACT for all

major stationary sources of VOCs not otherwise covered by a CTG. For

severe nonattainment areas including Kent and New Castle Counties, the

CAAA defines a major stationary source as any stationary source, or

group of sources located within a contiguous area and under common

control, that emits or has the potential to emit at least 25 tons per

year (tpy) of VOCs. Prior to the passage of the CAAA, non-CTG RACT was

required in New Castle county for stationary sources for which there

was not a CTG, and which had the potential to emit 100 tpy or more of

VOCs from all non-CTG processes. There was no requirement for non-CTG

RACT in Kent County prior to the CAAA. Therefore, all VOC emissions

reductions from non-CTG RACT in Kent County are creditable toward the

15% reduction requirement. However, reductions from non-CTG RACT in New

Castle County are only creditable for sources that emit or have the

potential to emit between 25 and 100 tpy of VOCs from processes not

covered by a CTG. Delaware adopted its non-CTG RACT regulation in

January 1993. Any facility located in Kent or New Castle County is

subject to the regulation if it has sources not regulated by a CTG that

as a group have the potential to emit VOC emissions of 25 tons or more

per year. The regulation requires overall VOC emission reduction from

affected sources at a facility of at least 81 percent by weight. This

reduction can be achieved through the use of capture and control

techniques or other methods as appropriate. Facilities may also comply

with section 50 by submitting an alternative plan. These alternative

plans must be approved by EPA as source-specific SIP revisions.

Open Burning

A revision to Delaware Air Regulation 13--Open Burning, was adopted

in the autumn of 1994. New regulatory requirements prohibit open

burning and prescribed burning in Kent and New Castle Counties during

the peak ozone season, June 1 through August 31. Regulatory

requirements also prohibit the disposal of refuse by open burning, open

burning in the conduct of a salvage operation, and open burning of

fallen leaves.

EPA's review of this material indicates that the two control

measures mentioned are approvable, and their reductions creditable

toward the 15% RPP. EPA is approving the Delaware SIP revisions for the

two control measures for the 15% RPP: Open Burning and Non-CTG RACT,

which were submitted on February 17, 1995 and January 20, 1994,

respectively.

EPA has determined that the submittals made by the State of

Delaware satisfy the relevant requirements of the CAAA. EPA's detailed

review of Delaware's Open Burning and Non-CTG Regulations are 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.

EPA is approving these SIP revisions without prior proposal because

the Agency views these as noncontroversial amendments and anticipates

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

Register publication, EPA is proposing to approve the SIP revisions

should

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adverse or critical comments be filed. This action will become

effective May 12, 1997 unless, by April 11, 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 May 12, 1997.

Final Action

EPA is approving the Delaware Regulation 13--Open Burning and

Regulation 24--sections 50(a)(5) and 50(b)(3)--Non-CTG RACT.

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

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 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

Clean Air Act 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 CAAA, preparation of a flexibility

analysis would constitute Federal inquiry into the economic

reasonableness of state action. The Clean Air Act 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

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.

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 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 CAAA, petitions for judicial review

of this action to approve revisions to the Delaware SIP must be filed

in the United States Court of Appeals for the appropriate circuit by

May 12, 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 rule or action. This action

regarding the Delaware Open Burning and Non-CTG RACT SIP revisions may

not be challenged later in proceedings to enforce its requirements.

(See section (b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

Dated: January 10, 1997.

W.T. Wisniewski,

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)(48) and

(c)(49) to read as follows:

Sec. 52.420 Identification of plan.

* * * * *

(c) * * *

(48) Revisions to the Delaware State Implementation Plan submitted

on January 20, 1994 by the Delaware Department of Natural Resources &

Environmental Control:

(i) Incorporation by reference.

(A) Letter of January 20, 1994 from the Delaware Department of

Natural Resources & Environmental Control transmitting Regulation 24--

Control of Volatile Organic Compound Emissions--Sections 50(a)(5) and

50(b)(3), effective November 24, 1993.

(B) Regulation 24--Control of Volatile Organic Compound Emissions,

Section 50--Other Facilities that Emit Volatile Organic Compounds--

Sections 50(a)(5) and 50(b)(3)--Non-CTG RACT, effective November 24,

1993.

(ii) Additional material.

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(A) Remainder of January 20, 1994 State submittal pertaining to

Regulation 24, sections 50(a)(5) and 50(b)(30) referenced in paragraph

(c)(48)(i) of this section.

(49) Revisions to the Delaware State Implementation Plan submitted

on February 17, 1995 by the Delaware Department of Natural Resources &

Environmental Control:

(i) Incorporation by reference.

(A) Letter of February 17, 1995 from the Delaware Department of

Natural Resources & Environmental Control transmitting Regulation 13--

Open Burning, effective February 8, 1995.

(B) Regulation 13--Open Burning, effective February 8, 1995.

(C) Administrative changes to Regulation 1, Definitions and

Administrative Principles: addition of the following definitions:

``ceremonial fires'', ``conservation practices'', ``prescribed

burning'', and ``silviculture''; and revision to the following

definitions: ``open burning'', ``rubbish'', and ``trade waste'' adopted

February 8, 1995.

(ii) Additional material.

(A) Remainder of the February 17, 1995 State submittal pertaining

to Regulation 13--Opening Burning referenced in paragraph (c)(49)(i) of

this section.

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[FR Doc. 97-6073 Filed 3-11-97; 8:45 am]

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