[Federal Register Volume 62, Number 135 (Tuesday, July 15, 1997)]
[Rules and Regulations]
[Pages 37722-37724]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18569]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE030-1008a; FRL-5856-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware--General Conformity Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the State of Delaware. This revision consists of 
Delaware's regulation for General Conformity which sets forth policy, 
criteria, and procedures for demonstrating and assuring conformity of 
non-transportation related federal projects to all applicable 
implementation plans. The intended effect of this action is to approve 
Delaware's General Conformity regulation as a SIP revision.

DATES: This action is effective September 15, 1997 unless notice is 
received on or before Septmeber 14, 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, 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 Air, 
Radiation, and Toxics Division, U.S. Environmental Protection Agency, 
Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107; 
the Air and Radiation Docket and Information Center, Environmental 
Protection Agency, 401 M Street, S.W., Washington, D.C. 20460; 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 October 2, 1996, the Delaware Department 
of Natural Resources & Environmental Control (DNREC) submitted a formal 
revision to its State Implementation Plan (SIP) to EPA for

[[Page 37723]]

the purpose of meeting the requirements of 40 CFR 51.851, State 
Implementation Plans, found under 40 CFR part 51, subpart W, 
Determining Conformity of General Federal Actions to State and Federal 
Implementation Plans. Part 51, subpart W is commonly referred to as the 
federal General Conformity Rule. The DNREC SIP revision which is the 
subject of this approval action consists of Delaware Regulation 35--
Conformity of General Federal Actions to the State Implementation Plans 
(General Conformity). This action to approve Delaware's General 
Conformity regulation as a SIP revision is being taken under section 
110 of the Clean Air Act (CAA).
    The revision to Regulation 26--Motor Vehicle Emission Inspection 
Program, that was also submitted by DNREC on October 2, 1996 is the 
subject of a separate rulemaking document.

Summary of the SIP Revision

    Delaware Regulation 35, Conformity of General Federal Actions to 
the State Implementation Plans (General Conformity), establishes 
standards and procedures to follow when evaluating the conformity of 
non-transportation related federal projects to all applicable 
implementation plans developed pursuant to section 110 and Part D of 
the CAA.
    At 40 CFR part 51, subpart W, EPA promulgated the federal rule for 
General Conformity to implement section 176(c) of the CAA. This federal 
rule sets forth policy, criteria, and procedures for demonstrating and 
assuring the conformity of federal actions to all applicable 
implementation plans developed pursuant to section 110 and part D of 
the CAA. The rule generally applies to federal actions except:
    (1) Those required under the transportation conformity rule (40 CFR 
part 93, subpart A);
    (2) Actions with associated emissions below specified de minimis 
levels; and
    (3) Certain other actions which are exempt or presumed to conform 
to applicable air quality implementation plans.
    At 40 CFR 51.851, State Implementation Plans, EPA promulgated the 
requirements that must be adopted by a state and submitted as a SIP 
revision to implement the General Conformity provisions. The provisions 
adopted by Delaware for General Conformity are those contained in and 
required by the federal rule. EPA has reviewed Delaware Regulation 35, 
for General Conformity, and has determined that it satisfies the 
requirements of 40 CFR 51.851. A Technical Support Document (TSD) has 
been prepared which details the EPA's evaluation of Delaware Regulation 
35. Interested parties may obtain a copy of the TSD by contacting the 
EPA Regional Office listed in the ADDRESSES section of this document.
    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 and critical comments be filed. This action will be 
effective September 14, 1997, unless, by August 14, 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 September 15, 1997.

Final Action

    EPA is approving Delaware Regulation 35, for General Conformity, 
submitted by the State of Delaware on October 2, 1996 as a revision to 
the Delaware SIP.
    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

    The Office of Management and Budget (OMB) has exempted this action 
from review under Executive Order 12866.

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 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 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).

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 
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 
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

[[Page 37724]]

Office prior to the publication of the rule of 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 to approve a revision to the Delaware SIP for General 
Conformity must be filed in the United States Court of Appeals for the 
appropriate circuit by September 15, 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 a rule or 
action.
    This action pertaining to the approval of Delaware Regulation 35 
for General Conformity Rule may not be challenged later in the 
proceedings to enforce its requirements. (See section (b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations.

    Dated: June 30, 1997.
Thomas Voltaggio,
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)(58) to read 
as follows:


Sec. 52.420  Identification of plan.

* * * * *
    (c) * * *
    (58) Revisions to the Delaware State Implementation Plan on October 
2, 1996 by the Delaware Department of Natural Resources & Environmental 
Control:
    (i) Incorporation by reference.
    (A) A letter of October 2, 1996 from the Delaware Department of 
Natural Resources & Environmental Control transmitting the General 
Conformity Rule.
    (B) Delaware Regulation 35--Conformity of General Federal Actions 
to the State Implementation Plans (General Conformity), effective 
August 14, 1996.
    (ii) Additional Material from the Delaware's October 2, 1996 
submittal pertaining to Regulation 35.

[FR Doc. 97-18569 Filed 7-14-97; 8:45 am]
BILLING CODE 6560-50-P