[Federal Register Volume 64, Number 196 (Tuesday, October 12, 1999)]
[Rules and Regulations]
[Pages 55139-55141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26195]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE027-1027a; FRL-6453-5]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is converting its conditional approval of the Delaware's 
State Implementation Plan (SIP) revision to achieve a 15 percent 
reduction in volatile organic compound (VOC) emissions to a full 
approval. This SIP revision is commonly referred to as the 15% Rate of 
Progress Plan (the 15% plan). Delaware fulfilled the condition listed 
in EPA's conditional approval published on May 19, 1997. The intent 
effect of this action is to convert the conditional approval of 
Delaware's 15% plan to a full approval.

DATES: This rule is effective on December 13, 1999 without further 
notice, unless EPA receives adverse written comment by November 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 David L. Arnold, Chief, 
Ozone and Mobile Sources Branch, Mailcode 3AP21, 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 Delaware 
Department of Natural Resources & Environmental Control, 89 Kings 
Highway, Dover Delaware 19901.

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

SUPPLEMENTARY INFORMATION:

I. Background

    In accordance with the Clean Air Act, the State of Delaware 
submitted a 15% plan for its portion of the Philadelphia-Wilmington-
Trenton ozone nonattainment area. EPA is now converting its conditional 
approval of the Delaware's 15% plan SIP revision to a full approval. In 
a rule published on May 19, 1997 (62 FR 27198), EPA granted a 
conditional approval to the Delaware's 15% plan because the State's 
enhanced inspection and maintenance (I/M) program, one of many control 
measures adopted by Delaware to achieve the 15% reduction in VOC 
emissions, had only been conditionally approved at the time.
    On July 7, 1999 (64 FR 36635), EPA proposed full approval of 
Delaware's enhanced I/M SIP. No comments were received during the 
public comment period. EPA has recently published its final rule fully 
approving Delaware's enhanced I/M SIP. Because Delaware's enhanced I/M 
SIP is fully approved, EPA is now fully approving the 15% plan and 
associated contingency measures for Delaware. The effective date of 
EPA's final rule fully approving Delaware's enhanced I/M SIP will 
precede the effective date of this direct final rule to grant full 
approval of Delaware's 15% plan.

II. EPA Action

    EPA is converting its conditional approval of the Delaware's 15% 
plan and associated contingency measures to a full approval. An 
extensive discussion of the Delaware 15% plan and EPA's rationale for 
its approval were provided in the previous final rule which 
conditionally approved the 15% plan (see 62 FR 27198) and shall not be 
restated here. This action to convert our conditional approval to a 
full approval is being published without prior proposal because we view 
this as a noncontroversial amendment and because we anticipate no 
adverse comments. In a separate document in the ``Proposed Rules'' 
section of this Federal Register publication, we are proposing to fully 
approve the Delaware's 15% plan SIP revision if adverse comments are 
filed. This action will be effective without further notice unless we 
receive relevant adverse

[[Page 55140]]

comment by November 12, 1999. If we receive such 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. Any 
parties interested in commenting must do so at this time. If no such 
comments are received by November 12, 1999, you are advised that this 
action will be effective on December 13, 1999.

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 Orders on Federalism

    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.
    On August 4, 1999, President Clinton issued a new executive order 
on federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999)), 
which will take effect on November 2, 1999. In the interim, the current 
Executive Order 12612 (52 FR 41685 (October 30, 1987)), on federalism 
still applies. This rule will not have a substantial direct effect on 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 12612. 
The rule affects only one State, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act.

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 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

[[Page 55141]]

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 to fully approve the State of Delaware's 
15% plan must be filed in the United States Court of Appeals for the 
appropriate circuit by December 13, 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, Hydrocarbons, 
Intergovernmental relations, Ozone.

    Dated: September 23, 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. 7401-7671q.

Subpart I--Delaware

    2. Section 52.426 is added to read as follows:


Sec. 52.426  Control strategy: ozone.

    EPA fully approves, as a revision to the Delaware State 
Implementation Plan, the 15 Percent Rate of Progress Plan for the 
Delaware portion of the Philadelphia-Wilmington-Trenton severe ozone 
nonattainment, namely Kent and New Castle Counties, submitted by the 
Secretary of Delaware Department of Natural Resources and Environmental 
Control on February 17, 1995.
    3. Section 52.424(a) is removed and reserved.

[FR Doc. 99-26195 Filed 10-8-99; 8:45 am]
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