[Federal Register Volume 62, Number 96 (Monday, May 19, 1997)]
[Rules and Regulations]
[Pages 27198-27199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12634]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE027-1006; FRL-5823-3]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is conditionally approving a State Implementation Plan 
(SIP) revision submitted by the State of Delaware to meet the 15 
Percent Rate of Progress Plan (RPP) requirements of the Clean Air Act 
(CAA). EPA is conditionally approving the SIP because the 15 Percent 
RPP, submitted by Delaware, will result in significant emission 
reductions in volatile organic compounds (VOCs) from the 1990 baseline 
and thus, will provide progress toward attainment of the ozone 
standard. This action is being taken under section 110 of the CAA.

EFFECTIVE DATE: The final rule is effective on June 18, 1997.

ADDRESSES: 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; 
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) 566-2182, at the 
EPA Region III address above.

SUPPLEMENTARY INFORMATION: On February 5, 1997 (62 FR 5357), EPA 
published a notice of proposed rulemaking (NPR) for the State of 
Delaware. The NPR proposed conditional approval of Delaware's 15 
Percent RPP. The formal SIP revision was submitted by the Delaware 
Department of Natural Resources and Environmental Control (DNREC) on 
February 17, 1995.
    Other specific requirements of the 15 Percent RPP and the rationale 
for EPA's proposed action are explained in the NPR and will not be 
restated here. No public comments were received during the comment 
period on the NPR. On March 6, 1997, EPA received a letter form the 
Secretary of Delaware DNREC committing to address the deficiencies 
identified in the proposed I/M SIP by a date certain within 1 year of 
this final conditional ruling.

Final Action

    EPA is conditionally approving the 15 Percent RPP as a revision to 
the Delaware SIP. As credits from Delaware's enhanced I/M program are 
part of the 15 Percent RPP, EPA is also, via a separate rulemaking, 
conditionally approving Delaware's I/M SIP. Once Delaware satisfies the 
conditions of its I/M rulemaking and receives full approval, EPA will 
fully approve the 15 Percent RPP. Conversely, if the I/M rulemaking 
converts to a final disapproval, EPA's conditional approval of the 15 
Percent RPP would also convert to a disapproval.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to the 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

[[Page 27199]]

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.
    Conditional approvals of SIP submittals under section 110 and 
subchapter I, part D of the CAAA 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, EPA 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 regulatory 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of state action. The CAAA forbids EPA to base its 
actions concerning SIPs on such grounds. Union Electric Co. v US EPA, 
427 US 246, 256-66 (1976); 42 U.S.C. 7410(a)(2).
    If the conditional approval is converted to a disapproval under 
section 110(k), based on the State's failure to meet the commitment, it 
will not affect any existing state requirements applicable to small 
entities. Federal disapproval of the state submittal does not affect 
its state-enforceability. Moreover, EPA's disapproval of the submittal 
does not impose a new Federal requirement. Therefore, EPA certifies 
that this disapproval action does not have a significant impact on a 
substantial number of small entities because it does not remove 
existing requirements nor does it substitute a new federal requirement.

C. Unfunded Mandates

    Under Sections 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 conditional 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, 
conditionally approving Delaware 15% Rate of Progress Plan, 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 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 the 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by July 18, 1997. Filing a petition for 
reconsideration by the Administrator of this final rule conditionally 
approving Delaware's 15% RPP 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 
pertaining to the Delaware 15% RPP may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Parts 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Reporting and recordkeeping, Ozone, Volatile organic compounds.

    Dated: April 29, 1997.
William T. Wisniewski,
Acting Regional Administrator Region III.

    Chapter I, title 40, of the Code of Federal Regulations 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 52.424 is added to read as follows:


Sec. 52.424  Conditional approval

    (a) EPA is conditionally approving as a revision to the Delaware 
State implementation plan the 15 Percent Rate of Progress Plan and 
associated contingency measures for the Delaware ozone nonattainment 
areas classified as severe, namely Kent and New Castle Counties, 
submitted by the Secretary of Delaware Department of Natural Resources 
and Environmental Control on February 17, 1995. EPA is also 
conditionally approving the I/M SIP in a separate rulemaking, as 
credits from that program are part of the 15 Percent RPP. By no later 
than one year from June 18, 1997, Delaware must submit a revised I/M 
SIP that meets the conditions stated in the I/M SIP final rulemaking. 
Once Delaware satisfies the conditions of its I/M rulemaking and 
receives full approval, EPA will fully approve the 15 Percent RPP SIP. 
Conversely, if the I/M rulemaking converts to a final disapproval, 
EPA's conditional approval of the 15 Percent RPP SIP would also convert 
to a disapproval.
    (b) [Reserved].

[FR Doc. 97-12634 Filed 5-16-97; 8:45 am]
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