[Federal Register Volume 64, Number 174 (Thursday, September 9, 1999)]
[Rules and Regulations]
[Pages 48961-48964]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23274]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE101-1025a; FRL-6434-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Approval of Miscellaneous Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action on revisions to the Delaware 
State Implementation Plan (SIP). In this action, EPA is approving 
revisions to various Delaware rules and definitions which have 
historically been State-enforceable, and which Delaware had formally 
submitted as SIP revisions, but which EPA had not yet taken formal 
action. Provisions include control of particulate matter from petroleum 
refining operations, control of sulfur dioxide emissions from sulfuric 
acid manufacturing operations, and definitions and provisions 
associated with source monitoring, recordkeeping and reporting. The 
intended effect of this approval action is to ensure that the 
federally-approved versions of these Delaware provisions conform with 
the state-enforceable provisions. EPA is approving these revisions to 
the Delaware SIP in accordance with the requirements of the Clean Air 
Act

DATES: This rule is effective on November 8, 1999 without further 
notice, unless EPA receives adverse written comment by October 12, 
1999. If EPA receives such comments, it will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Written comments should be mailed to Marcia L. Spink, 
Associate Director, Air Programs, Mail code 3AP20, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103. 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 the Delaware 
Department of Natural Resources & Environmental Control, 89 Kings 
Highway, P.O. Box 1401, Dover, Delaware 19903.

FOR FURTHER INFORMATION CONTACT: Harold A. Frankford, (215) 814-2108, 
or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Throughout this document, wherever ``we,'' ``us,'' or ``our'' is 
used, we mean EPA.

What Action is EPA Taking?

    We are approving amendments to Delaware Regulations 1,5, 9, and 17 
which the State had previously submitted as part of formal SIP revision 
requests.

What is the Intended Effect?

    We are taking this action on Delaware regulations which the State 
had formally submitted as SIP revisions in past years. Under section 
110(h) of the Act, we are required to assemble and publish a 
comprehensive SIP document at specified intervals for each state and 
territory listed in 40 CFR part 52. We completed our last review of the 
Delaware SIP in November 1998. During this review, we discovered that 
we had not taken final action on portions of three formal Delaware SIP 
revision requests submitted between 1977 and 1993 which contained 
multiple revisions to various Delaware air pollution control 
regulations. In each case, we had approved most of the submitted 
changes as revisions of the Delaware SIP, but overlooked taking final 
action on other revised provisions which Delaware had submitted at the 
same time.

Which Delaware Regulations Are Affected by EPA's Action?

A. Revisions Submitted September 7, 1977
    Affected Regulations:

--Regulation 1 (Definitions and Administrative Principles), Section 2 
(Definitions)--Definitions for the following new terms: Capacity 
factor, Continuous monitoring system, Emission standard, Equipment 
shutdown, Excess Emissions, Sulfuric Acid Plant; Revised definitions of 
the following terms: Existing Installation, Equipment, Source, or 
Operation; New Installation, Equipment, Source, or Operation.
--Regulation No. 5, Section 5.1 (Control of Particulate Emissions from 
Petroleum Refining Operations)--the Chart Unit title in Table 4 
(allowable mass emission rate from fluid coking operations) is revised 
from ``Barrels per Day'' to ``Barrels per Day of Fresh Feed.''
    Public Hearings Held: September 27, 1976.
B. Revisions Submitted October 5, 1978
    Affected Regulation: Regulation No. 9 (Emissions of Sulfur 
compounds from Industrial Operations), Section 2 (Restrictions on 
Sulfuric Acid Manufacturing Operations), revised Section 2.1 and new 
Sections 2.3 and 2.4.
    Public Hearings Held: July 6, 1978.
C. Revisions Submitted January 11, 1993
    Affected Regulation: Regulation 17 (Source Monitoring Recordkeeping 
and Reporting), Section 4 (Performance Specifications) and Section 6 
(Data Reduction).
    Public Hearings Held: September 29, 1992.
    Delaware has submitted documentation showing that the above 
revisions have no adverse air quality impacts. Both the new and revised 
terms listed above define words which already exist in the federally-
enforceable Delaware regulations. Also, we agree with the State's 
assertion that the use of the unit ``barrels per day of fresh feed'' in 
the revised title in Table 4 in Regulation 5, section 5 better defines 
the process weight rate for fluid coking operations than the unit of 
``barrels per day.'' Furthermore, we

[[Page 48962]]

agree with Delaware's assertion that the exemption for acid plants used 
as sulfur dioxide control systems is consistent with requirements set 
forth in 40 CFR part 60 (New source Performance Standards).
    The revisions to sections 4 and 6 of Regulation 17 are 
administrative in nature, and serve to (1) clarify that any source 
which is regulated under State Regulation 24 shall be exempt from the 
provisions of Regulation 17, except for the emissions statement 
provisions in section 7; (2) clarify the effective date of other 
federal requirements which are referenced in Delaware's performance 
specification and data reduction provisions.

II. Final Action

    We are approving the revisions to Delaware Regulations 1, 5, 9, and 
17 described above.
    We are publishing this rule without prior proposal because we view 
this as a noncontroversial amendment and anticipate no adverse comment. 
However, in the ``Proposed Rules'' section of today's Federal Register, 
we are publishing a separate document that will serve as the proposal 
to approve this SIP revision if adverse comments are filed. This rule 
will be effective on November 8, 1999 without further notice unless we 
receive adverse comment by October 12, 1999. If we receive adverse 
comment, we will publish a timely withdrawal in the Federal Register 
informing the public that the rule will not take effect. We will 
address all public comments in a subsequent final rule based on the 
proposed rule. We will not institute a second comment period on this 
action. Any parties interested in commenting must do so at this time.

III. Administrative Requirements

A. Executive Order 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. requires EPA to 
provide to the Office of Management and Budget 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, Executive Order 13084 requires EPA to provide to the Office 
of Management and Budget, 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, Executive Order 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 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 
create any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
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).

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

[[Page 48963]]

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 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 must be filed in the United States Court 
of Appeals for the appropriate circuit by November 8, 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 to approve revisions to Delaware 
Regulations 1, 5, 9, and 17 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, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides.

    Dated: August 20, 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 Section 52.420, the entries for Delaware Regulation 1, 
Section 2; Regulation 5, Section 5; Regulation 9, Section 2; and 
Regulation 17, Sections 4 and 6 in the ``EPA-Approved Regulations in 
the Delaware SIP'' table in paragraph (c) are revised to read as 
follows:


Sec. 52.420  Identification of plan.

* * * * *
    (c) EPA approved regulations.

                                  EPA-Approved Regulations in the Delaware SIP
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                                                                  State         EPA
           State citation                  Title/Subject        effective     approval    Additional explanation
                                                                   date         date
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                             REGULATION 1--DEFINITIONS AND ADMINISTRATIVE PRINCIPLES
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*                  *                  *                  *                  *                  *
                                                        *
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Section 2...........................  Definitions............       2/8/95       9/9/99  New Definitions:
                                                                                          (Effective date: 1/7/
                                                                                          77)
                                                                                         --Capacity factor
                                                                                         --Continuous monitoring
                                                                                          system
                                                                                         --Emission standard
                                                                                         --Equipment shutdown
                                                                                         --Excess Emissions
                                                                                          (Effective Date: 9/26/
                                                                                          78)
                                                                                         --Sulfuric Acid Plant
                                                                                         Revised Definitions:
                                                                                          (Effective date: 1/7/
                                                                                          77)
                                                                                         --Existing
                                                                                          Installation,
                                                                                          Equipment, Source, or
                                                                                          Operation
                                                                                         --New Installation,
                                                                                          Equipment, Source, or
                                                                                          Operation
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*                  *                  *                  *                  *                  *
                                                        *
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                     REGULATION 5--PARTICULATE EMISSIONS FROM INDUSTRIAL PROCESS OPERATIONS
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*                  *                  *                  *                  *                  *
                                                        *
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Section 5...........................  Restrictions on              9/26/78       9/9/99  Process weight rate
                                       Petroleum Refining                                 unit (Table 4) is
                                       Operations.                                        revised to read
                                                                                          ``Barrels Per Day of
                                                                                          Fresh Feed
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[[Page 48964]]

 
*                  *                  *                  *                  *                  *
                                                        *
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                     REGULATION 9--EMISSIONS OF SULFUR COMPOUNDS FROM INDUSTRIAL OPERATIONS
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*                  *                  *                  *                  *                  *
                                                        *
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Section 2...........................  Restrictions on              9/26/78       9/9/99  Revised Sections 2.3
                                       Sulfuric Acid                                      and 2.4 Section 2.2
                                       Manufacturing                                      (State effective date:
                                       Operations.                                        9/26/80) is federally
                                                                                          enforceable as a
                                                                                          Section 111(d) plan
                                                                                          and codified at 40 CFR
                                                                                          62.1875
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*                  *                  *                  *                  *                  *
                                                        *
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                         REGULATION 17--SOURCE MONITORING, RECORD-KEEPING AND REPORTING
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*                  *                  *                  *                  *                  *
                                                        *
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 Section 4..........................  Performance                  1/11/93       9/9/99  Former SIP Sections 1
                                       Specifications.                                    through 5
                                                                                          respectively; citation
                                                                                          revised 2/28/96, 62 FR
                                                                                          7453.
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*                  *                  *                  *                  *                  *
                                                        *
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Section 6...........................  Data Reduction.........      1/11/93       9/9/99
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[FR Doc. 99-23274 Filed 9-8-99; 8:45 am]
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