[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Pages 7415-7418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4445]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE013-5915a; FRL-5424-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware--Emission Statement Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

[[Page 7416]]
submitted by the State of Delaware. This revision consists of an 
emission statement program for stationary sources that emit volatile 
organic compounds (VOCs) and/or nitrogen oxides (NOX) at or above 
specified actual emission threshold levels within the state of Delaware 
(Kent, New Castle, and Sussex Counties). The intended effect of this 
action is to approve a regulation for annual reporting of actual 
emissions by sources that emit VOC and/or NOX within the state in 
accordance with the 1990 Clean Air Act (CAA). This action is being 
taken under section 110 of the CAA.

DATES: This action is effective April 29, 1996, unless notice is 
received on or before March 29, 1996, 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 must be mailed to Marcia L. Spink, Associate 
Director, Air Programs, Mailcode 3AT00, 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 EPA office 
listed above; the Air and Radiation Docket and Information Center, U.S. 
Environmental Protection Agency, 401 M Street, SW., Washington, DC 
20460; and the Delaware Department of Natural Resources & Environmental 
Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware 19903.

FOR FURTHER INFORMATION CONTACT: Rose Quinto (215) 597-3164, at the EPA 
Region III address.

SUPPLEMENTARY INFORMATION: On January 11, 1993, the Delaware Department 
of Natural Resources and Environmental Control (DNREC) submitted a SIP 
revision to EPA on Emission Statements. This revision would amend 
Delaware's Regulations Governing the Control of Air Pollution: section 
2 of Regulation 1 (Definitions and Administrative Principles), and 
section 1 of Regulation 17 (Source Monitoring, Recordkeeping and 
Reporting), and also add a new section 7 of Regulation 17.

I. Background

    The air quality planning and SIP requirements for ozone 
nonattainment and transport areas are set out in subparts I and II of 
part D of title I of the CAA, as amended by the Clean Air Act 
Amendments of 1990. EPA published a ``General Preamble'' describing 
EPA's preliminary views on how it intends to review SIPs and SIP 
revisions submitted under Title I of the CAA, including those state 
submittals for ozone transport areas within the states (see 57 FR 13498 
(April 16, 1992) (``SIP: General Preamble for the Implementation of 
Title I of the Clean Air Act Amendments of 1990''), 57 FR 18070 (April 
28, 1992) (``Appendices to the General Preamble''), and 57 FR 55620 
(November 25, 1992) (``SIP: NOX Supplement to the General 
Preamble'')).
    EPA also issued a draft guidance document describing the 
requirements for the emission statement programs discussed in this 
action, entitled ``Guidance on the Implementation of an Emission 
Statement Program'' (July, 1992). EPA is also conducting a rulemaking 
process to modify Title 40, Part 51 of the CFR to reflect the 
requirements of the emission statement program.
    Section 182 of the CAA sets out a graduated control program for 
ozone nonattainment areas. Section 182(a) sets out requirements 
applicable in marginal ozone nonattainment areas, which are also 
applicable by sections 182 (b), (c), (d), and (e) to all other ozone 
nonattainment areas. Among the requirements in section 182(a) is a 
program for stationary sources to prepare and submit to the state each 
year emission statements certifying their actual emissions of VOCs and 
NOX. This section of the CAA provides that the states are to 
submit a revision to their SIPs by November 15, 1992 establishing this 
emission statement program.
    If a source emits either VOC or NOX at or above the designated 
minimum reporting level, the other pollutant should be included in the 
emission statement, even if it is emitted at levels below the specified 
cutoffs.
    States may waive, with EPA approval, the requirement for an 
emission statement for classes or categories of sources with less than 
25 tons per year of actual plant-wide NOX or VOC emissions in 
nonattainment areas if the class or category is included in the base 
year and periodic inventories and emissions are calculated using 
emissions factors established by EPA (such as those found in EPA 
publication AP-42) or other methods acceptable to EPA.
    At minimum, the emission statement data should include:

--Certification of data accuracy;
--Source identification information;
--Operating schedule;
--Emissions information (to include annual and typical ozone season day 
emissions);
--Control equipment information; and
--Process data.

    EPA developed emission statements data elements to be consistent 
with other source and state reporting requirements. This consistency is 
essential to assist states with quality assurance for emission 
estimates and to facilitate consolidation of all EPA reporting 
requirements.

II. EPA's Evaluation of Delaware's Submittal

A. Procedural Background

    In accordance with the requirements of 40 CFR 51.102, the State of 
Delaware held a public hearing on September 29, 1993 in Dover, Delaware 
to solicit public comments on the implementation plan for the state. 
The plan was submitted to EPA by the Governor's designee on January 11, 
1993.

B. Components of Delaware's Emission Statement Program

    There are several key and specific components of an acceptable 
emission statement program. Specifically, Delaware must submit a 
revision to its SIP consisting of an emission statement program that 
meets the minimum requirements for reporting by the sources and the 
state. For the emission statement program to be approvable, Delaware's 
SIP revision must include, at a minimum, definitions and provisions for 
applicability, compliance, and specific source reporting requirements 
and reporting forms.
    Regulation 1 (Definitions and Administrative Principles), section 
2; and Regulation 17 (Source Monitoring, Recordkeeping and Reporting), 
section 1, has been revised by amending and adding the definitions of 
the following terms: actual emissions, annual fuel process rate, 
certifying individual, control efficiency, control equipment 
identification code, emission factor, emission statement, estimated 
emission method code, estimated emission units, measured emission 
method code, measured emission units, peak ozone season, percentage 
annual throughput, periodic ozone SIP inventory, point, potential to 
emit, process rate, segment, source classification code, and volatile 
organic compounds.
    Regulation 17, section 7 (Emission Statement) requires a person who 
owns and operates any installation, source, or premises located in 
areas designated by the CAA as an ozone nonattainment area to report 
the levels of emissions from all stationary sources of VOCs and 
NOX. The state may, with EPA approval, waive the emission 
statement requirements for classes or categories of 

[[Page 7417]]
stationary sources with facility-wide actual emissions of less than 25 
tons/year of VOC or NOX if the class or category is included in 
the base year and periodic ozone inventories, and the actual emissions 
are calculated using EPA approved emission factors or other methods 
acceptable to EPA. Regulation 17, section 7, also requires emission 
statements for all stationary sources located in ozone attainment areas 
that emit or have the potential to emit 50 tons/year of VOC and/or 
NOX. This section also requires that a certifying official for 
each facility provide Delaware with a statement reporting emissions by 
April 30 of each year beginning with April 30, 1993 for the emissions 
discharged during the previous calendar year. This section also 
delineates specific requirements for the content of these annual 
emission statements.

C. Enforceability

    The State of Delaware has provisions in its SIP which ensure that 
the emission statement requirements of section 182(a)(3)(B) and 
sections 184(b)(2) and 182(f) of the CAA, as required by section 2 of 
Delaware Regulation Number 1 (Definitions and Administrative 
Principles) and sections 1 and 7 of Regulation 17 (Source Monitoring, 
Recordkeeping and Reporting), are adequately enforced.
    EPA has determined that the submittal made by the State of Delaware 
satisfies the relevant requirements of the CAA and EPA's guidance 
document, ``Guidance on the Implementation of an Emission Statement 
Program'' (July 1992). EPA's detailed review of Delaware's Emission 
Statement Program is 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.

III. Final Action

    EPA is approving a revision to the Delaware SIP to include an 
Emission Statement Program consisting of revisions to section 2, 
Regulation 1; and section 1, and a new section 7 of Regulation 17. This 
revision was submitted to EPA by the State of Delaware on January 11, 
1993.
    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 or critical comments be filed. This action will become 
effective April 29, 1996 unless, by March 29, 1996, 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 April 29, 1996.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision of any SIP. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.
    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 regulatory 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).
    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 
Federal requirements. Accordingly, no additional costs to state, local, 
or tribal governments, or to the private sector, result from this 
action.
    This action has been classified as 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.
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by April 29, 1996. 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 approving Delaware's Emission Statement Program 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, 
Incorporation by reference, Intergovernmental relations, Volatile 
organic compounds, Oxides of nitrogen, Ozone, Reporting and 
recordkeeping requirements.

    Dated: February 2, 1996.
W.T. Wisniewski,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:
    
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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 paragraph (c)(52) to read as 
follows:


Sec. 52.420  Identification of plan.

* * * * *
    (c) * * *
    (52) Revisions to the Delaware State Implementation Plan submitted 
by the Secretary, Delaware Department of Natural Resources and 
Environmental Control, on January 11, 1993.
    (i) Incorporation by reference.
    (A) Letter dated January 11, 1993 from the Secretary, Delaware 
Department of Natural Resources and Environmental Control, submitting a 
revision to the Delaware State Implementation Plan.
    (B) Amended section 2, Regulation 1 (Definitions and Administrative 
Principles). Amended section 1, and added new section 7 of Regulation 
17 (Source Monitoring, Recordkeeping and Reporting). The amendments to 
Regulations 1 and 17, and the addition of section 7 of Regulation 17, 
were effective on January 11, 1993. This revision consists of an 
emission statement program for stationary sources which emit volatile 
organic compounds (VOC) and/or nitrogen oxides (NOX) at or above 
specified actual emission threshold levels. This program is applicable 
state-wide.
    (ii) Additional material.
    (A) Remainder of January 11, 1993 state submittal pertaining to 
Delaware Emission Statement Program.
* * * * *
[FR Doc. 96-4445 Filed 2-27-96; 8:45 am]
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