[Federal Register Volume 62, Number 48 (Wednesday, March 12, 1997)]
[Rules and Regulations]
[Pages 11329-11332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-6073]


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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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[[Page 11330]]

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

[[Page 11331]]

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.

[[Page 11332]]

    (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.
* * * * *
[FR Doc. 97-6073 Filed 3-11-97; 8:45 am]
BILLING CODE 6560-50-P