Approval and Promulgation of Air Quality Implementation Plans; Delaware; Approval of Miscellaneous Revisions

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE101-1025a; FRL-6434-6]

Approval and Promulgation of Air Quality Implementation Plans;

Delaware; Approval of Miscellaneous Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action on revisions to the Delaware

State Implementation Plan (SIP). In this action, EPA is approving

revisions to various Delaware rules and definitions which have

historically been State-enforceable, and which Delaware had formally

submitted as SIP revisions, but which EPA had not yet taken formal

action. Provisions include control of particulate matter from petroleum

refining operations, control of sulfur dioxide emissions from sulfuric

acid manufacturing operations, and definitions and provisions

associated with source monitoring, recordkeeping and reporting. The

intended effect of this approval action is to ensure that the

federally-approved versions of these Delaware provisions conform with

the state-enforceable provisions. EPA is approving these revisions to

the Delaware SIP in accordance with the requirements of the Clean Air

Act

DATES: This rule is effective on November 8, 1999 without further

notice, unless EPA receives adverse written comment by October 12,

1999. If EPA receives such comments, it will publish a timely

withdrawal of the direct final rule in the Federal Register and inform

the public that the rule will not take effect.

ADDRESSES: Written comments should be mailed to Marcia L. Spink,

Associate Director, Air Programs, Mail code 3AP20, U.S. Environmental

Protection Agency, Region III, 1650 Arch Street, Philadelphia,

Pennsylvania 19103. Copies of the documents relevant to this action are

available for public inspection during normal business hours at the Air

Protection Division, U.S. Environmental Protection Agency, Region III,

1650 Arch Street, Philadelphia, Pennsylvania 19103; and the Delaware

Department of Natural Resources & Environmental Control, 89 Kings

Highway, P.O. Box 1401, Dover, Delaware 19903.

FOR FURTHER INFORMATION CONTACT: Harold A. Frankford, (215) 814-2108,

or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

Throughout this document, wherever ``we,'' ``us,'' or ``our'' is

used, we mean EPA.

What Action is EPA Taking?

We are approving amendments to Delaware Regulations 1,5, 9, and 17

which the State had previously submitted as part of formal SIP revision

requests.

What is the Intended Effect?

We are taking this action on Delaware regulations which the State

had formally submitted as SIP revisions in past years. Under section

110(h) of the Act, we are required to assemble and publish a

comprehensive SIP document at specified intervals for each state and

territory listed in 40 CFR part 52. We completed our last review of the

Delaware SIP in November 1998. During this review, we discovered that

we had not taken final action on portions of three formal Delaware SIP

revision requests submitted between 1977 and 1993 which contained

multiple revisions to various Delaware air pollution control

regulations. In each case, we had approved most of the submitted

changes as revisions of the Delaware SIP, but overlooked taking final

action on other revised provisions which Delaware had submitted at the

same time.

Which Delaware Regulations Are Affected by EPA's Action?

A. Revisions Submitted September 7, 1977

Affected Regulations:

--Regulation 1 (Definitions and Administrative Principles), Section 2

(Definitions)--Definitions for the following new terms: Capacity

factor, Continuous monitoring system, Emission standard, Equipment

shutdown, Excess Emissions, Sulfuric Acid Plant; Revised definitions of

the following terms: Existing Installation, Equipment, Source, or

Operation; New Installation, Equipment, Source, or Operation.

--Regulation No. 5, Section 5.1 (Control of Particulate Emissions from

Petroleum Refining Operations)--the Chart Unit title in Table 4

(allowable mass emission rate from fluid coking operations) is revised

from ``Barrels per Day'' to ``Barrels per Day of Fresh Feed.''

Public Hearings Held: September 27, 1976.

B. Revisions Submitted October 5, 1978

Affected Regulation: Regulation No. 9 (Emissions of Sulfur

compounds from Industrial Operations), Section 2 (Restrictions on

Sulfuric Acid Manufacturing Operations), revised Section 2.1 and new

Sections 2.3 and 2.4.

Public Hearings Held: July 6, 1978.

C. Revisions Submitted January 11, 1993

Affected Regulation: Regulation 17 (Source Monitoring Recordkeeping

and Reporting), Section 4 (Performance Specifications) and Section 6

(Data Reduction).

Public Hearings Held: September 29, 1992.

Delaware has submitted documentation showing that the above

revisions have no adverse air quality impacts. Both the new and revised

terms listed above define words which already exist in the federally-

enforceable Delaware regulations. Also, we agree with the State's

assertion that the use of the unit ``barrels per day of fresh feed'' in

the revised title in Table 4 in Regulation 5, section 5 better defines

the process weight rate for fluid coking operations than the unit of

``barrels per day.'' Furthermore, we

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agree with Delaware's assertion that the exemption for acid plants used

as sulfur dioxide control systems is consistent with requirements set

forth in 40 CFR part 60 (New source Performance Standards).

The revisions to sections 4 and 6 of Regulation 17 are

administrative in nature, and serve to (1) clarify that any source

which is regulated under State Regulation 24 shall be exempt from the

provisions of Regulation 17, except for the emissions statement

provisions in section 7; (2) clarify the effective date of other

federal requirements which are referenced in Delaware's performance

specification and data reduction provisions.

II. Final Action

We are approving the revisions to Delaware Regulations 1, 5, 9, and

17 described above.

We are publishing this rule without prior proposal because we view

this as a noncontroversial amendment and anticipate no adverse comment.

However, in the ``Proposed Rules'' section of today's Federal Register,

we are publishing a separate document that will serve as the proposal

to approve this SIP revision if adverse comments are filed. This rule

will be effective on November 8, 1999 without further notice unless we

receive adverse comment by October 12, 1999. If we receive adverse

comment, we will publish a timely withdrawal in the Federal Register

informing the public that the rule will not take effect. We will

address all public comments in a subsequent final rule based on the

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

action. Any parties interested in commenting must do so at this time.

III. Administrative Requirements

A. Executive Order 12866

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

regulatory action from review under E.O. 12866, entitled ``Regulatory

Planning and Review.''

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If EPA complies by consulting, E.O. requires EPA to

provide to the Office of Management and Budget a description of the

extent of EPA's prior consultation with representatives of affected

state, local, and tribal governments, the nature of their concerns,

copies of written communications from the governments, and a statement

supporting the need to issue the regulation. In addition, E.O. 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of state, local, and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's rule does not create a mandate on state, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

C. Executive Order 13045

E.O. 13045, entitled ``Protection of Children from Environmental

Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies

to any rule that the EPA determines (1) is ``economically

significant,'' as defined under E.O. 12866, and (2) the environmental

health or safety risk addressed by the rule has a disproportionate

effect on children. If the regulatory action meets both criteria, the

Agency must evaluate the environmental health or safety effects of the

planned rule on children and explain why the planned regulation is

preferable to other potentially effective and reasonably feasible

alternatives considered by the Agency.

This final rule is not subject to E.O. 13045 because it is not an

economically significant regulatory action as defined by E.O. 12866,

and it does not address an environmental health or safety risk that

would have a disproportionate effect on children.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If EPA complies by

consulting, Executive Order 13084 requires EPA to provide to the Office

of Management and Budget, in a separately identified section of the

preamble to the rule, a description of the extent of EPA's prior

consultation with representatives of affected tribal governments, a

summary of the nature of their concerns, and a statement supporting the

need to issue the regulation. In addition, Executive Order 13084

requires EPA to develop an effective process permitting elected and

other representatives of Indian tribal governments ``to provide

meaningful and timely input in the development of regulatory policies

on matters that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the communities

of Indian tribal governments. This action does not involve or impose

any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because 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

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Clean Air Act, 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).

F. 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

annual 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

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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 annual 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.

G. 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 rule 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. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by November 8, 1999. 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 to approve revisions to Delaware

Regulations 1, 5, 9, and 17 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, Intergovernmental

relations, Particulate matter, Reporting and recordkeeping

requirements, Sulfur oxides.

Dated: August 20, 1999

W. Michael McCabe,

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 et seq.

Subpart I--Delaware

2. In Section 52.420, the entries for Delaware Regulation 1,

Section 2; Regulation 5, Section 5; Regulation 9, Section 2; and

Regulation 17, Sections 4 and 6 in the ``EPA-Approved Regulations in

the Delaware SIP'' table in paragraph (c) are revised to read as

follows:

Sec. 52.420 Identification of plan.

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(c) EPA approved regulations.

EPA-Approved Regulations in the Delaware SIP

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State EPA

State citation Title/Subject effective approval Additional explanation

date date

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REGULATION 1--DEFINITIONS AND ADMINISTRATIVE PRINCIPLES

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Section 2........................... Definitions............ 2/8/95 9/9/99 New Definitions:

(Effective date: 1/7/

77)

--Capacity factor

--Continuous monitoring

system

--Emission standard

--Equipment shutdown

--Excess Emissions

(Effective Date: 9/26/

78)

--Sulfuric Acid Plant

Revised Definitions:

(Effective date: 1/7/

77)

--Existing

Installation,

Equipment, Source, or

Operation

--New Installation,

Equipment, Source, or

Operation

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REGULATION 5--PARTICULATE EMISSIONS FROM INDUSTRIAL PROCESS OPERATIONS

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Section 5........................... Restrictions on 9/26/78 9/9/99 Process weight rate

Petroleum Refining unit (Table 4) is

Operations. revised to read

``Barrels Per Day of

Fresh Feed

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REGULATION 9--EMISSIONS OF SULFUR COMPOUNDS FROM INDUSTRIAL OPERATIONS

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Section 2........................... Restrictions on 9/26/78 9/9/99 Revised Sections 2.3

Sulfuric Acid and 2.4 Section 2.2

Manufacturing (State effective date:

Operations. 9/26/80) is federally

enforceable as a

Section 111(d) plan

and codified at 40 CFR

62.1875

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REGULATION 17--SOURCE MONITORING, RECORD-KEEPING AND REPORTING

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Section 4.......................... Performance 1/11/93 9/9/99 Former SIP Sections 1

Specifications. through 5

respectively; citation

revised 2/28/96, 62 FR

7453.

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Section 6........................... Data Reduction......... 1/11/93 9/9/99

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[FR Doc. 99-23274 Filed 9-8-99; 8:45 am]

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