[Federal Register Volume 65, Number 47 (Thursday, March 9, 2000)]
[Rules and Regulations]
[Pages 12481-12483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-5614]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE046-1022a; FRL-6547-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Regulation Number 37--NOX Budget Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking a direct final rule to approve a State 
Implementation Plan (SIP) revision submitted by the State of Delaware. 
This revision implements Phase II of the Ozone Transport Commission's 
(OTC) September 27, 1994 Memorandum of Understanding (MOU) which 
describes a regional nitrogen oxides (NOX) cap and trade 
program that will significantly reduce NOX emissions 
generated within the ozone transport region. The intended effect of 
this action is to approve the Delaware Regulation Number 37, 
NOX Budget Program.

DATES: This rule is effective on May 8, 2000, without further notice, 
unless EPA receives adverse written comment by April 10, 2000. 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 & 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, Richardson & 
Robins Building, 89 Kings Highway, Dover, Delaware 19901.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by 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 December 20, 1999, the Delaware 
Department of Natural Resources and Environmental Control (DNREC) 
submitted a formal revision to its State Implementation Plan (SIP). The 
SIP revision consists of Delaware Regulation Number 37, NOX 
Budget Program.

I. Background

    The Ozone Transport Commission (OTC) adopted a Memorandum of 
Understanding (MOU) on September 27, 1994, committing the signatory 
states to the development of a two phase region-wide reduction in 
NOX emissions by 1999 and by 2003, respectively. As 
reasonably available control technology (RACT) to reduce NOX 
emissions was required to be implemented by May of 1995, the MOU refers 
to the NOX reductions to be achieved by 1999 as Phase II; 
and the NOX reductions to be achieved by 2003 as Phase III. 
The OTC states include Maine, New Hampshire, Vermont, Massachusetts, 
Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, 
Maryland, Delaware, the northern counties of Virginia, and the District 
of Columbia. All OTC member states and the District of Colombia, with 
the exception of the Commonwealth of Virginia, signed the September 27, 
1994 MOU. The OTC MOU requires reductions of NOX emissions, 
during the ozone season, from utility and large industrial combustion 
facilities within the Ozone Transport Region (OTR) in order to further 
the effort to achieve the health-based National Ambient Air Quality 
Standard (NAAQS) for ozone.
    In the MOU, the OTC states agreed to propose regulations for the 
control of NOX emissions in accordance with the following 
guidelines:
    1. The level of NOX required would be established from a 
1990 baseline emissions level.
    2. The reduction would vary by location, or zone, and would be 
implemented in two phases utilizing a region wide trading program.
    3. The reduction would be determined based on the less stringent of 
each of the following:
    a. By May 1, 1999, the affected facilities in the inner zone shall 
reduce their rate of NOX emissions by 65% from baseline, or 
emit NOX at a rate no greater than 0.20 pound per million 
Btu. (This is referred to as a Phase II requirement ).
    b. By May 1, 1999, the affected facilities in the outer zone shall 
reduce their rate of NOX emissions by 55% from baseline, or 
shall emit NOX at a rate no greater than 0.20 pounds per 
million Btu. (This is referred to as a Phase II requirement).
    c. By May 1, 2003, the affected facilities in the inner and outer 
zone shall reduce their rate of NOX emissions by 75% from 
baseline, or shall emit NOX at a rate of no greater than 
0.15 pounds per million Btu. (This is referred to as a Phase III 
requirement).
    d. By May 1, 2003, the affected facilities in the Northern zone 
shall reduce their rate of NOX emissions by 55% from 
baseline, or shall emit NOx at a rate no greater than 0.20 pounds per 
million Btu. (This is referred to as a Phase III requirement ).
    A task force of representatives from the OTC states, organized 
through the Northeast States for Coordinated Air Use Management 
(NESCAUM) and the Mid-Atlantic Regional Air Management Association 
(MARAMA), were charged with the task of developing a model rule to 
implement the program defined by the OTC MOU. During 1995 and 1996, the 
NESCAUM/MARAMA NOX Budget Task Force worked with EPA and 
developed a model rule as a template for OTC states to adopt their own 
rules to implement the OTC MOU. The model rule was issued May 1, 1996. 
The model rule was developed for the OTC states to implement the Phase 
II reduction called for in the MOU to be achieved by May 1, 1999. The 
model rule does not include the implementation of Phase III.

II. Summary of SIP Revision

    Delaware's Regulation Number 37 is based solely and completely upon 
the ``NESCAUM/MARAMA NOX Budget Rule'' issued in May 1, 
1996. The model rule was developed by the states in the Ozone Transport 
Region (OTR) using the EPA's economic incentive rules (67 FR 16690) 
which were published on April 7, 1994, as the general regulatory 
framework.
    The Delaware NOX Budget Program establishes 
NOX emission allowances for each ozone season which falls 
between May 1, 1999 and September 30, 2002. This program identifies the 
budgeted sources and identifies the number of allowances each budgeted 
source is allocated.
    The Delaware NOX Budget Program is divided into twenty 
sections: (1) General Provisions--purpose and scope of the program; (2) 
Applicability--any owner or operator of a budget source where the 
source is located in the State of Delaware; (3) Definitions--defines 
terms used in the program; (4) Allowance Allocation--the total number 
of NOX allowances (tons) which Delaware has been allotted 
from the regional program to divide among the sources subject to the 
program during the 1999-2002 ozone seasons; (5) Permits--requirements 
for revisions and amendments; (6) Establishment of Compliance Accounts; 
(7) Establishment of General Accounts; (8) Opt-in

[[Page 12482]]

Provisions; (9) New Budget Source Provisions; (10) NOX 
Allowance Tracking System (NATS); (11) Allowance Transfer--requirements 
and procedures to notify the NATS Administrator; (12) Allowance 
Banking--procedures and limitations for banking unused allowances from 
one year to another; (13) Emission Monitoring--monitored by either a 
continuous emission monitoring system (CEMS) or equivalent that is 
approved by the state and EPA; (14) Recordkeeping--records to be 
retained for a minimum of five years; (15) Emissions Reporting--
quarterly in an electronic format (EDR); (16) End-of-Season 
Reconciliation--how compliance will be determined at the end of each 
ozone season; (17) Compliance Certification--annual compliance 
certification requirements for budget units; (18) Failure to Meet 
Compliance Requirements; (19) Program Audit; and (20) Program Fees. Two 
appendices are included in this regulation: Appendix A--where budgeted 
sources and their NOX allowance allocations are identified; 
and Appendix B--final OTC NOX baseline inventory of the 
budgeted sources.
    EPA is publishing this direct final rule without prior proposal 
because the Agency views this as a noncontroversial amendment and 
anticipates no adverse comment. However, in the ``Proposed Rules'' 
section of today's Federal Register, EPA is publishing a separate 
document that will serve as the proposal to approve the SIP revision if 
adverse comments are filed. This direct final rule will be effective on 
May 8, 2000, without further notice unless EPA receives adverse comment 
by April 10, 2000. If EPA receives adverse comment, EPA will publish a 
timely withdrawal in the Federal Register informing the public that the 
rule will not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. A more detailed 
description of the state submittal, the model rule and EPA's evaluation 
are included in a Technical Support Document (TSD) prepared in support 
of this rulemaking action. Interested parties may request a copy of 
this TSD from the EPA Regional Office listed in the ADDRESSES section 
of this document.

III. Final Action

    EPA is approving Delaware's December 20, 1999 request to revise its 
SIP to include Regulation Number 37, NOX Budget Program.

IV. Administrative Requirements

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget (OMB). This 
action merely approves state law as meeting federal requirements and 
imposes no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, 
this rule also does not significantly or uniquely affect the 
communities of tribal governments, as specified by Executive Order 
13084 (63 FR 27655, May 10, 1998). This 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 Clean Air Act (CAA). This rule also 
is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. As required by section 3 of 
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this 
rule, EPA has taken the necessary steps to eliminate drafting errors 
and ambiguity, minimize potential litigation, and provide a clear legal 
standard for affected conduct. EPA has complied with Executive Order 
12630 (53 FR 8859, March 15, 1988) by examining the takings 
implications of the rule in accordance with the ``Attorney General's 
Supplemental Guidelines for the Evaluation of Risk and Avoidance of 
Unanticipated Takings'' issued under the executive order. This rule 
does not impose an information collection burden under the provisions 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

B. 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).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 8, 2000. Filing a petition for 
reconsideration by the Administrator of this final rule approving 
Delaware's Regulation Number 37--NOX Budget Program, 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, Nitrogen dioxide, 
Ozone, Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: February 24, 2000.
Bradley M. Campbell,
Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

[[Page 12483]]

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 Regulation 37 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.

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

                                  EPA-Approved Regulations in the Delaware SIP
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                                                       State
    State citation             Title/Subject         effective       EPA approval date           Additional
                                                        date                                     information
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*                  *                  *                  *                  *                  *
                                                        *
     Regulation 37                                         NOX Budget Program
Section 1.............  General Provisions........     12/11/99  3/9/00 [Insert Federal
                                                                  Register cite].
Section 2.............  Applicability.............     12/11/99  3/9/00 [Insert Federal
                                                                  Register cite].
Section 3.............  Definitions...............     12/11/99  3/9/00 [Insert Federal
                                                                  Register cite].
Section 4.............  Allowance Allocation......     12/11/99  3/9/00 [Insert Federal
                                                                  Register cite].
Section 5.............  Permits...................     12/11/99  3/9/00 [Insert Federal
                                                                  Register cite].
Section 6.............  Establishment of               12/11/99  3/9/00 [Insert Federal
                         Compliance Accounts.                     Register cite].
Section 7.............  Establishment of General       12/11/99  3/9/00 [Insert Federal
                         Accounts.                                Register cite].
Section 8.............  Opt In Provisions.........     12/11/99  3/9/00 [Insert Federal
                                                                  Register cite].
Section 9.............  New Budget Source              12/11/99  3/9/00 [Insert Federal
                         Provisions.                              Register cite].
Section 10............  NOX Allowance Tracking         12/11/99  3/9/00 [Insert Federal
                         System (NATS).                           Register cite].
Section 11............  Allowance Transfer........     12/11/99  3/9/00 [Insert Federal
                                                                  Register cite].
Section 12............  Allowance Banking.........     12/11/99  3/9/00 [Insert Federal
                                                                  Register cite].
Section 13............  Emission Monitoring.......     12/11/99  3/9/00 [Insert Federal
                                                                  Register cite].
Section 14............  Recordkeeping.............     12/11/99  3/9/00 [Insert Federal
                                                                  Register cite].
Section 15............  Emissions Reporting.......     12/11/99  3/9/00 [Insert Federal
                                                                  Register cite].
Section 16............  End-of-Season                  12/11/99  3/9/00 [Insert Federal
                         Reconciliation.                          Register cite].
Section 17............  Compliance Certification..     12/11/99  3/9/00 [Insert Federal
                                                                  Register cite].
Section 18............  Failure to Meet Compliance     12/11/99  3/9/00 [Insert Federal
                         Requirements.                            Register cite].
Section 19............  Program Audit.............     12/11/99  3/9/00 [Insert Federal
                                                                  Register cite].
Section 20............  Program Fees..............     12/11/99  3/9/00 [Insert Federal
                                                                  Register cite].
Appendix A............  NOX Budget Program--Budget     12/11/99  3/9/00 [Insert Federal
                         Sources & Allowances.                    Register cite].
Appendix B............  NOX Budget Program--Final      12/11/99  3/9/00 [Insert Federal
                         OTC NOX Base-line                        Register cite].
                         Inventory.
 
*                  *                  *                  *                  *                  *
                                                        *
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[FR Doc. 00-5614 Filed 3-8-00; 8:45 am]
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