[Federal Register Volume 64, Number 115 (Wednesday, June 16, 1999)]
[Rules and Regulations]
[Pages 32187-32189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15015]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE011-1020; FRL-6357-7]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Reasonably Available Control Technology Requirements for 
Nitrogen Oxides

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is granting conditional limited approval of a State 
Implementation Plan (SIP) revision submitted by the State of Delaware. 
This revision establishes and requires all major sources of nitrogen 
oxides (NOX) to implement reasonably available control 
technology (RACT). This revision was submitted to comply with the 
NOX requirements of the Clean Air Act. The intended effect 
of this action is to grant conditional limited approval of Delaware's 
NOX RACT Regulation.

EFFECTIVE DATE: This final rule is effective on July 16, 1999.

ADDRESSES: 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 and Environmental Control, Richardson & 
Robins, 89 Kings Highway, Dover, Delaware 19901.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On March 22, 1999 (64 FR 13753), EPA published a notice of proposed 
rulemaking (NPR) for the State of Delaware. The NPR proposed 
conditional limited approval of Delaware's Regulation No. 12, CONTROL 
OF NITROGEN OXIDE EMISSIONS (NOX RACT Regulation). The 
formal SIP revision was submitted by the Delaware Department of Natural 
Resources and Environmental Control (DNREC) on January 11, 1993 and 
amended on January 20, 1994.
    A description of Delaware's SIP revision and EPA's rationale for 
granting it conditional limited approval were provided in the NPR and 
shall not be restated here. No public comments were received on the 
NPR.

Terms of Conditional Approval

    EPA is conditionally approving Delaware's NOX RACT 
regulation based upon DNREC's commitment to submit all the source-
specific RACT determinations made under Section 5 of Regulation No. 12. 
To fulfill the condition of this approval, DNREC must, by no later than 
July 17, 2000 of Regulation No. 12, certify that it has submitted all 
required case-by-case NOX RACT determinations for all 
currently known subject sources. Once EPA has determined that DNREC has 
met this condition, EPA shall remove the conditional nature of its 
approval and Regulation No. 12 will, at that time, retain limited 
approval status. Should DNREC fail to meet the condition as specified 
above, the final conditional limited approval of the Delaware 
NOX RACT regulation SIP revision shall convert to a 
disapproval.

Terms of Limited Approval

    Conversion of the Delaware NOX RACT Regulation to full 
approval will occur when EPA has approved all of the case-by-case RACT 
determinations submitted by DNREC in fulfillment of the conditional 
approval described above.

[[Page 32188]]

    As indicated previously, other specific requirements of and the 
rationale for EPA's proposed actions are explained in the NPR and will 
not be restated here. Further details are contained in the TSD, which 
is available upon request, from the EPA Regional office listed in the 
ADDRESSES section of this document.

II. Final Action

    EPA is granting conditional limited approval to Delaware Regulation 
No. 12 imposing RACT on major sources of NOX, submitted on 
January 11, 1993 and January 20, 1994, as a revision to the Delaware 
SIP.

III. Administrative Requirements

A. Executive Orders 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 Order 12875

    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. 12875 requires EPA to 
provide to the OMB 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.

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, E.O. 13084 requires EPA to provide to the OMB, 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, E.O. 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 conditional and limited 
approvals of SIP submittals under sections 110 and 301, and subchapter 
I, part D of the 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, 
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 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).
    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.

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

[[Page 32189]]

additional costs to State, local, or tribal 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, pertaining to Delaware's NOX 
RACT regulation, must be filed in the United States Court of Appeals 
for the appropriate circuit by August 16, 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, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements.

    Dated: May 27, 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 et seq.

Subpart I--Delaware

    2. In Sec. 52.420, the table in paragraph (c) is amended by adding 
in numerical order a new entry for ``Regulation 12'' to read as 
follows:


Sec. 52.420  Identification of plan.

* * * * *
    (c) * * *

                                                      EPA-Approved Regulations in the Delaware SIP
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                                                                           State
            State citation                     Title subject          effective date        EPA approval date                      Comments
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                   *                  *                  *                  *                  *                  *                  *
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                                                   Regulation 12--Control of Nitrogen Oxide Emissions
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Section 1............................  Applicability................        11/24/93  June 16, 1999 [Federal         Limited approval.
                                                                                       Register cite].
Section 2............................  Definitions..................        11/24/93  June 16, 1999 [Federal         Limited approval.
                                                                                       Register cite].
Section 3............................  Standards....................        11/24/93  June 16, 1999 [Federal         Limited approval.
                                                                                       Register cite].
Section 4............................  Exemptions...................        11/24/93  June 16, 1999 [Federal         Limited approval.
                                                                                       Register cite].
Section 5............................  Alternative and Equivalent           11/24/93  June 16, 1999 [Federal         Limited approval.
                                        RACT Determinations.                           Register cite].
Section 6............................  RACT Proposals...............        11/24/93  June 16, 1999 [Federal         Limited approval.
                                                                                       Register cite].
Section 7............................  Compliance Certification,            11/24/93  June 16, 1999 [Federal         Limited approval.
                                        Record Keeping, and                            Register cite].
                                        Reporting Requirements.
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
    3. Section 52.424 is amended by adding paragraph (d) to read as 
follows:


Sec. 52.424  Conditional approval.

* * * * *
    (d) Revisions to the Delaware State Implementation Plan, Regulation 
No. 12, pertaining to NOX RACT requirements on major sources 
submitted on January 11, 1993 and amended on January 20, 1994 by the 
Delaware Department of Natural Resources and Environmental Control, is 
conditionally approved. Delaware must meet the following condition by 
no later than July 17, 2000, in accordance with criteria defined in the 
EPA Memorandum dated November 7, 1996 from the Director of the Air 
Quality Strategies and Standards Division of the Office of Air Planning 
and Standards, entitled ``Approval Options for Generic RACT Rules 
Submitted to Meet the Non-CTG VOC RACT Requirement and Certain 
NOX RACT Requirements.'' This memorandum is available, upon 
request, at the office of the U.S. Environmental Protection Agency, 
Region III, 1650 Arch Street, Philadelphia, PA 19103.
    This condition is:
    (1) The DNREC must certify, in writing, that it has submitted, as 
SIP revisions, RACT determinations for all sources subject to source-
specific NOX RACT requirements.

[FR Doc. 99-15015 Filed 6-15-99; 8:45 am]
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