Approval and Promulgation of Air Quality Implementation Plans; Delaware; 15 Percent Rate of Progress Plan

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE027-1027a; FRL-6453-5]

Approval and Promulgation of Air Quality Implementation Plans;

Delaware; 15 Percent Rate of Progress Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is converting its conditional approval of the Delaware's

State Implementation Plan (SIP) revision to achieve a 15 percent

reduction in volatile organic compound (VOC) emissions to a full

approval. This SIP revision is commonly referred to as the 15% Rate of

Progress Plan (the 15% plan). Delaware fulfilled the condition listed

in EPA's conditional approval published on May 19, 1997. The intent

effect of this action is to convert the conditional approval of

Delaware's 15% plan to a full approval.

DATES: This rule is effective on December 13, 1999 without further

notice, unless EPA receives adverse written comment by November 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 David L. Arnold, Chief,

Ozone and Mobile Sources Branch, Mailcode 3AP21, 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 Delaware

Department of Natural Resources & Environmental Control, 89 Kings

Highway, Dover Delaware 19901.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, at the

EPA Region III address above, or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

In accordance with the Clean Air Act, the State of Delaware

submitted a 15% plan for its portion of the Philadelphia-Wilmington-

Trenton ozone nonattainment area. EPA is now converting its conditional

approval of the Delaware's 15% plan SIP revision to a full approval. In

a rule published on May 19, 1997 (62 FR 27198), EPA granted a

conditional approval to the Delaware's 15% plan because the State's

enhanced inspection and maintenance (I/M) program, one of many control

measures adopted by Delaware to achieve the 15% reduction in VOC

emissions, had only been conditionally approved at the time.

On July 7, 1999 (64 FR 36635), EPA proposed full approval of

Delaware's enhanced I/M SIP. No comments were received during the

public comment period. EPA has recently published its final rule fully

approving Delaware's enhanced I/M SIP. Because Delaware's enhanced I/M

SIP is fully approved, EPA is now fully approving the 15% plan and

associated contingency measures for Delaware. The effective date of

EPA's final rule fully approving Delaware's enhanced I/M SIP will

precede the effective date of this direct final rule to grant full

approval of Delaware's 15% plan.

II. EPA Action

EPA is converting its conditional approval of the Delaware's 15%

plan and associated contingency measures to a full approval. An

extensive discussion of the Delaware 15% plan and EPA's rationale for

its approval were provided in the previous final rule which

conditionally approved the 15% plan (see 62 FR 27198) and shall not be

restated here. This action to convert our conditional approval to a

full approval is being published without prior proposal because we view

this as a noncontroversial amendment and because we anticipate no

adverse comments. In a separate document in the ``Proposed Rules''

section of this Federal Register publication, we are proposing to fully

approve the Delaware's 15% plan SIP revision if adverse comments are

filed. This action will be effective without further notice unless we

receive relevant adverse

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comment by November 12, 1999. If we receive such 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. Any

parties interested in commenting must do so at this time. If no such

comments are received by November 12, 1999, you are advised that this

action will be effective on December 13, 1999.

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 Orders on Federalism

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.

On August 4, 1999, President Clinton issued a new executive order

on federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999)),

which will take effect on November 2, 1999. In the interim, the current

Executive Order 12612 (52 FR 41685 (October 30, 1987)), on federalism

still applies. This rule will not have a substantial direct effect on

States, on the relationship between the national government and the

States, or on the distribution of power and responsibilities among the

various levels of government, as specified in Executive Order 12612.

The rule affects only one State, and does not alter the relationship or

the distribution of power and responsibilities established in the Clean

Air Act.

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 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

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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 to fully approve the State of Delaware's

15% plan must be filed in the United States Court of Appeals for the

appropriate circuit by December 13, 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 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, Hydrocarbons,

Intergovernmental relations, Ozone.

Dated: September 23, 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. 7401-7671q.

Subpart I--Delaware

2. Section 52.426 is added to read as follows:

Sec. 52.426 Control strategy: ozone.

EPA fully approves, as a revision to the Delaware State

Implementation Plan, the 15 Percent Rate of Progress Plan for the

Delaware portion of the Philadelphia-Wilmington-Trenton severe ozone

nonattainment, namely Kent and New Castle Counties, submitted by the

Secretary of Delaware Department of Natural Resources and Environmental

Control on February 17, 1995.

3. Section 52.424(a) is removed and reserved.

[FR Doc. 99-26195 Filed 10-8-99; 8:45 am]

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