[Federal Register Volume 65, Number 9 (Thursday, January 13, 2000)]
[Rules and Regulations]
[Pages 2048-2052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-729]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE-031-1029; FRL-6522-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware--Minor New Source Review and Federally Enforceable State 
Operating Permit Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is granting limited approval to a State Implementation 
Plan (SIP) revision submitted by the State of Delaware which amends its 
minor New Source Review (NSR) permit program. EPA is granting full 
approval of a second revision which establishes a mechanism for the 
terms and conditions of a permit to be deemed federally-enforceable for 
purposes of limiting the potential to emit regulated air contaminants, 
i.e., a Federally Enforceable State Operating Permits Program (FESOPP). 
EPA is granting limited approval of changes to the minor NSR program, 
because it does not fully meet EPA's regulatory requirement for public 
participation. EPA is granting full approval of the FESOPP because it 
meets all applicable requirements.

EFFECTIVE DATE: This final rule is effective on February 14, 2000.


[[Page 2049]]


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; the Air and 
Radiation Docket and Information Center, U.S. Environmental Protection 
Agency, 401 M Street, SW, Washington, DC 20460; and Delaware Department 
of Natural Resources & Environmental Control, 89 Kings Highway, P.O. 
Box 1401, Dover, Delaware 19903.

FOR FURTHER INFORMATION CONTACT: MaryBeth Bray at (215) 814-2632.

SUPPLEMENTARY INFORMATION:

I. Background

    On April 6, 1998 (63 FR 16751), EPA published a notice of proposed 
rulemaking (NPR) proposing limited approval and full approval of 
revisions to amend Delaware's Minor New Source Review Program and to 
create a Federally Enforceable State Operating Permit Program (FESOPP), 
respectively. These formal SIP revisions were submitted by Delaware on 
June 4, 1997. These revisions amend Delaware Regulation No. 2 for its 
minor New Source Review (NSR) program and create a mechanism for the 
terms and conditions of a permit issued pursuant to Regulation No. 2 to 
be made ``federally enforceable'' for purposes of limiting a source's 
(PTE) to emit a regulated air pollutant. These revisions apply state-
wide.
    As explained in the April 6, 1998 NPR, EPA has determined that 
Delaware's revised Regulation No. 2 fully meets the requirements of 40 
CFR 51.160-164 and the Clean Air Act (CAA) for minor NSR programs with 
the exception of the public participation requirements. The same NPR 
also explained that EPA has evaluated Delaware's FESOPP program against 
the federal enforceability criteria applicable to state operating 
permit program (non-title V) SIP submittals contained in a June 28, 
1989 Federal Register (54 FR 27274). EPA has determined that Delaware's 
FESOPP program fully meets the requirements of EPA's June 28, 1989 
criteria. The specific requirements of 40 CFR part 51 and the June 28, 
1989 criteria as well as the rationale for EPA's proposed actions on 
Delaware's revisions are explained in the NPR and will not be restated 
here.

II. Response to Public Comments

    EPA received comments from the National Environmental Development 
Association, Clean Air Regulatory Project (NEDA/CARP), an industry 
coalition group. These comments and EPA's responses are provided below.
    Comment: NEDA/CARP's first comment challenged EPA's authority to 
act on any state SIP based on its interpretation of the requirement in 
the definition of ``potential to emit'' requiring federal 
enforceability. The federal Court of Appeals for the District of 
Columbia Circuit vacated the definition of ``potential to emit'' as it 
pertains to both the new source review rules and the federal operating 
permit rules, 40 CFR parts 51, 52, and 70. See, Chemical Manufacturers 
Association v. EPA, No. 89-1514 (Sept 15, 1995) and Clean Air 
Implementation Project, et al v. Browner, Civ. No. 92-1303 (June 28, 
1996). While the definition was not vacated as it pertains to the 
sources of hazardous air pollutant, 40 CFR 63.2, it nonetheless was 
remanded to the Environmental Protection Agency for further rulemaking 
consistent with the court's directives in National Mining Association, 
et al. v. EPA, 93 F.3d 1351 (D.C. Cir. 1994). As of this date, EPA has 
not proposed further rulemaking on the PTE definition for any CAA 
programs. Since EPA lacks federal authority to include federal 
enforceability in the definition of ``PTE'' under both the part 70 and 
new source review program for the foregoing reason, it is both 
inappropriate and legally objectionable for EPA to take action on any 
SIP revision on the basis that the requirement of federal 
enforceability remains a legal requirement for a state's minor, major 
prevention of significant deterioration or NSR programs, or its 
operating permit program. Furthermore, reliance on EPA's 1989 ``federal 
enforceability'' guidance is inappropriate after the D.C. Circuit 
decisions cited above.
    Response: In short, EPA is not interpreting the definition of 
``potential to emit'' as requiring federal enforceability in order to 
approve Delaware's minor new source review and state operating permit 
programs. EPA recognizes that limitations on potential emissions need 
not be federally enforceable under federal new source review and 
federal operating permit rules in light of the court decisions cited 
above. Notwithstanding, Delaware requested EPA approval of its program 
for the purpose of creating federally enforceable limits on a source's 
potential emissions. For the reasons discussed in the NPR, EPA has 
found Delaware's program to meet the minimum requirements under the SIP 
for approval of minor new source review and federally enforceable state 
operating permits programs. The fact that Delaware's program may be 
used to establish federally enforceable limits on potential emission 
does not render the program disapprovable. Therefore, EPA disagrees 
with NEDA/CARP's conclusion that the agency lacks authority to approve 
Delaware's program as a SIP revision.
    Until EPA promulgates rules establishing otherwise, states may 
effectively limit potential emissions to avoid applicability of certain 
requirements even if such limits are not federally enforceable. Given 
the uncertainty of the final outcome of the requirement for federally 
enforceability, however, EPA does not recommend for states to delay 
submitting state operating permit programs for SIP approval, or to 
withdrawal programs previously approved under such authorities. Sources 
with federally enforceable limits on potential emissions will be less 
likely to have to apply for revised permits or be subject to major 
source requirements should the requirement for federally enforceability 
be reinstated.
    Comment: NEDA/CARP also questioned EPA's basis for proposing 
limited approval of Delaware's revised minor NSR regulations, i.e., on 
the basis that the new regulation does not fully meet the current 40 
CFR 51.161 requirements for public participation. The commenter points 
out that EPA proposed revisions to the public participation 
requirements under 40 CFR parts 51, 52, and 70 on August 31, 1995. 
Furthermore, these revisions are being discussed by a group of 
stakeholders comprised of EPA, industry, environmental groups, and 
state and local agencies in preparation for a final rulemaking action. 
NEDA/CARP contends that Delaware should be allowed to retain some 
flexibility in light of potential changes to federal requirements.
    Response: EPA acknowledges that the August 31, 1995 proposed 
revisions to 40 CFR parts 51, 52, and 70 included substantial revisions 
to public participation. However, EPA must review and approve SIP 
revisions according to existing regulations and Delaware's revised 
Regulation No. 2 is not consistent with the current version of 40 CFR 
51.161. Furthermore, EPA can not presuppose how the final 40 CFR part 
51, 52, and 70 rules will be written. In the particular case of revised 
Regulation No. 2, it appears that Delaware's new minor NSR requirements 
for public participation are not entirely consistent with EPA's August 
31, 1995 proposed changes to 40 CFR 51.161. Nevertheless, EPA has 
determined that overall, revised

[[Page 2050]]

Regulation No. 2 strengthens the current SIP by imposing a requirement 
for public participation where none had existed before. Should the 
final part 51, 52, and 70 rules be issued in a scope and manner that 
accommodates the revised Regulation No. 2 provisions, this limited 
approval will convert to a full approval.

III. Final Action

    EPA is granting limited approval of amendments to Delaware's minor 
new source review program as a revision to the Delaware SIP. Limited 
approval is granted because the revised Regulation No. 2 overall 
strengthens the current minor NSR program in Delaware's SIP but does 
not fully meet the requirements of 40 CFR 51.161. Under a limited 
approval, if EPA's future national rulemaking action and revisions to 
40 CFR 51.161 is consistent with Delaware's public participation 
regulations under Regulation No. 2, this limited approval will convert 
to a full approval. EPA is granting full approval of revisions to 
Regulation No. 2 which create a mechanism for the terms and conditions 
of a permit to be made federally enforceable for the purposes of 
limiting a source's PTE, i.e., a FESOPP, as a revision to the Delaware 
SIP.

IV. 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 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This final rule will not have substantial direct effects on the 
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 13132 (64 
FR 43255, August 10, 1999), because it merely approves a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the CAA. 
Thus, the requirements of section 6 of the Executive Order 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 does not involve decisions intended to 
mitigate environmental health and safety risks.

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 the mandate is unfunded, 
EPA must 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 
sections 110 and 301, 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, I certify 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).

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,

[[Page 2051]]

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 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. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical. EPA believes that VCS are inapplicable to this action. 
Today's action does not require the public to perform activities 
conducive to the use of VCS.

I. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action granting limited approval of Delaware's minor NSR 
program and approval of its non-title V FESOPP as SIP revisions must be 
filed in the United States Court of Appeals for the appropriate circuit 
by March 13, 2000. 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, Carbon monoxide, 
Hydrocarbons, Nitrogen dioxide, Ozone, Particulate matter, Reporting 
and record keeping requirements, Sulfur oxides.

    Dated: January 4, 2000.
Bradley M. Campbell,
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 entry for Delaware Regulation 2 in the 
``EPA-Approved Regulations in the Delaware SIP'' table in paragraph (c) 
is revised to read as follows:


Sec. 52.420  Identification of plan.

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    (c) EPA approved regulations.

                                  EPA Approved Regulations in the Delaware SIP
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                                                        State effective                           Additional
         State citation              Title/subject            date         EPA approval date      explanation
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                                              Regulation 2--Permits
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Section 1.......................  General Provisions.             6/1/97  January 13, 2000
                                                                           and 65 FR 2051.
Section 2.......................  Applicability......             6/1/97  January 13, 2000
                                                                           and 65 FR 2051.
Section 3.......................  Applications                    6/1/97  January 13, 2000
                                   Prepared by                             and 65 FR 2051.
                                   Interested Parties.
Section 4.......................  Cancellation of                 6/1/97  January 13, 2000
                                   Permits.                                and 65 FR 2051.
Section 5.......................  Action on                       6/1/97  January 13, 2000
                                   Applications.                           and 65 FR 2051.
Section 6.......................  Denial, Suspension              6/1/97  January 13, 2000
                                   or Revocation of                        and 65 FR 2051.
                                   Operating Permits.
Section 7.......................  Transfer of Permit/             6/1/97  January 13, 2000
                                   Registration                            and 65 FR 2051.
                                   Prohibited.
Section 8.......................  Availability of                 6/1/97  January 13, 2000
                                   Permit/                                 and 65 FR 2051.
                                   Registration.
Section 9.......................  Registration                    6/1/97  January 13, 2000
                                   Submittal.                              and 65 FR 2051.
Section 10......................  Source Category                 6/1/97  January 13, 2000
                                   Permit                                  and 65 FR 2051.
                                   Applications.
Section 11......................  Permit Applications             6/1/97  January 13, 2000
                                                                           and 65 FR 2051.

[[Page 2052]]

 
Section 12......................  Public                          6/1/97  January 13, 2000    Limited approval.
                                   Participation.                          and 65 FR 2051.
Section 13......................  Department Records.             6/1/97  January 13, 2000
                                                                           and 65 FR 2051.
 
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[FR Doc. 00-729 Filed 1-12-00; 8:45 am]
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