# Approval and Promulgation of Air Quality Implementation Plans; Delaware; Approval of Miscellaneous Revisions > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A99-23274 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** September 9, 1999 - **Citation:** 64 FR 48961 ## Text 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. ----------------------------------------------------------------------- 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 [[Page 48962]] 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 [[Page 48963]] 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. * * * * * (c) EPA approved regulations. EPA-Approved Regulations in the Delaware SIP ---------------------------------------------------------------------------------------------------------------- State EPA State citation Title/Subject effective approval Additional explanation date date ---------------------------------------------------------------------------------------------------------------- REGULATION 1--DEFINITIONS AND ADMINISTRATIVE PRINCIPLES ---------------------------------------------------------------------------------------------------------------- * * * * * * * ---------------------------------------------------------------------------------------------------------------- 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 ---------------------------------------------------------------------------------------------------------------- * * * * * * * ---------------------------------------------------------------------------------------------------------------- REGULATION 5--PARTICULATE EMISSIONS FROM INDUSTRIAL PROCESS OPERATIONS ---------------------------------------------------------------------------------------------------------------- * * * * * * * ---------------------------------------------------------------------------------------------------------------- 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 ---------------------------------------------------------------------------------------------------------------- [[Page 48964]] * * * * * * * ---------------------------------------------------------------------------------------------------------------- REGULATION 9--EMISSIONS OF SULFUR COMPOUNDS FROM INDUSTRIAL OPERATIONS ---------------------------------------------------------------------------------------------------------------- * * * * * * * ---------------------------------------------------------------------------------------------------------------- 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 ---------------------------------------------------------------------------------------------------------------- * * * * * * * ---------------------------------------------------------------------------------------------------------------- REGULATION 17--SOURCE MONITORING, RECORD-KEEPING AND REPORTING ---------------------------------------------------------------------------------------------------------------- * * * * * * * ---------------------------------------------------------------------------------------------------------------- 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. ---------------------------------------------------------------------------------------------------------------- * * * * * * * ---------------------------------------------------------------------------------------------------------------- Section 6........................... Data Reduction......... 1/11/93 9/9/99 ---------------------------------------------------------------------------------------------------------------- [FR Doc. 99-23274 Filed 9-8-99; 8:45 am] BILLING CODE 6560-50-P --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-23274. Public record. Not legal advice.