[Federal Register Volume 66, Number 26 (Wednesday, February 7, 2001)]
[Rules and Regulations]
[Pages 9209-9211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-3158]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE043-1030a; FRL-6941-3]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Revisions to New Source Review

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to convert its conditional 
approval of Delaware's revised New Source Review (NSR) regulations to a 
full approval and to incorporate those revised regulations into the 
Delaware State Implementation Plan (SIP). Delaware submitted the 
revised regulations as a SIP revision to satisfy conditions imposed by 
EPA in its conditional approval of the NSR program published in the 
Federal Register on April 3, 1998. EPA is converting its conditional 
approval to a full approval as Delaware's revised regulations satisfy 
those conditions. This action is being taken in accordance with the 
requirements of the Clean Air Act.

DATES: This rule is effective on April 9, 2001 without further notice, 
unless EPA receives adverse written comment by March 9, 2001. 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 Makeba Morris, Chief, 
Permits and Technology Assessment Branch, Mailcode 3AP11, 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; 
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: Linda Miller, (215) 814-2068, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On April 30, 1999, the Delaware Department of Natural Resources and 
Environmental Control submitted a formal revision to its State 
Implementation Plan (SIP). The SIP revision consists of amended New 
Source Review (NSR) regulations found in Delaware Regulation 25, 
Requirements for Preconstruction Review. Regulation 25, sections 1 and 
2, affect major new or modified stationary sources in nonattainment 
areas. The SIP Revision was submitted to meet the requirements imposed 
by EPA in its conditional approval of Delaware's NSR program published 
on April 3, 1998 (64 FR 16433-16535). The conditional approval required 
that certain deficiencies be corrected and clarifications made to 
Delaware's NSR program. Delaware's April 30, 1999 submittal satisfies 
the requirements of the April 3, 1998 conditional approval. This 
rulemaking will convert the conditional approval of Delaware's NSR 
program to a full approval and incorporate Delaware's revised NSR 
regulations into the Delaware SIP.

Summary of SIP Revision

    The SIP submission includes revisions to the Delaware Regulations 
Governing the Control of Air Pollution, Regulation 25--REQUIREMENTS FOR 
PRECONSTRUCTION REVIEW. Brief descriptions of the deficiencies noted in 
EPA's April 3, 1998 conditional approval and how they have been 
corrected or resolved are provided below:
    1. Deficiency: EPA stated that Delaware's regulations did not 
provide special modification procedures found in the Clean Air Act 
(CAA) Section 182(c)(7). Under federal regulations, a source that makes 
a single modification at a unit which is greater than 100 tons per year 
can choose to make an 130% emission decrease at the same source (rather 
than off site). The source can then choose to follow different 
procedures for determining control technology requirements.
    Clarification: Upon further review and discussion with Delaware, 
EPA determined that the Delaware regulations are not deficient in this 
regard. Delaware has retained the ``dual definition'' of major 
stationary source. As this definition of stationary source is both the 
source and the individual unit, the special rule for modifications 
would be less stringent than the existing Delaware regulations.
    2. Deficiency: EPA stated that public participation procedures must 
be consistent with Federal regulations (as found in 40 CFR 51.161). The 
Delaware regulations did not specify that the public participation 
procedures found in another section of the Delaware regulations must be 
used in issuing nonattainment NSR permits.
    Correction: New provisions have been added to the Delaware 
regulations at Delaware Regulation 25.2.4.D.2. The revised regulation 
requires the appropriate 30 day public comment period for nonattainment 
area NSR permits.
    3. Deficiency: EPA stated that Delaware regulations did not contain 
a provision consistent with federal regulations (40 CFR 51.165 
(a)(3)(ii)(A)). This federal requirement states that where a regulatory 
emission limitation (referred to as the allowable rate) is higher than 
is physically possible at a particular source (referred to as the 
potential of the source), credit for any emission reductions (emission 
offsets)

[[Page 9210]]

will be given only for reductions below the potential of the source.
    Correction: Provision 25-2.5 B has been added to Delaware law. The 
Delaware regulation is now consistent with the federal regulation and 
ensures that emission credit is not given for emissions which a source 
would not have the potential to emit.
    4. Deficiency: EPA stated that Delaware's regulations did not have 
necessary safeguards for granting emission offset credit for fuel 
switching, as found in federal regulations at 40 CFR 51.165 
(a)(3)(ii)(B). If a source has the ability to revert to a more 
polluting fuel, a federally enforceable requirement to maintain lower 
emission levels is necessary.
    Correction: The needed restrictive language has been added to 
Delaware Regulations at 25-2.4C.2 and 2.5 A. The Delaware regulations 
ensure that all emission reductions happen before emission credit can 
be used elsewhere. They further require that emission reductions be 
federally enforceable such that a source which chooses to switch fuels 
and generate emission credits must have an enforceable permit or 
agreement to restrict emissions.
    5. Deficiency: EPA stated that Delaware's regulations did not 
include appropriate safeguards for granting emission reduction credits. 
Specifically, requirements that all emission offset reductions are 
federally enforceable, restrictions on granting emission offset credits 
for sources which previously shut down or curtailed production, and 
prohibition from granting emission offset credits for emission 
reductions required by other requirements of the Clean Air Act.
    Correction: New provisions have been added to Delaware Regulation 
25-2.5 (paragraphs A, C, D and E) and 2.4. These new provisions ensure 
that all offset credits meet federal requirements.
    6. Deficiency: EPA stated that Delaware regulations did not 
restrict where offsetting emission reductions occurred. Federal 
regulations require that emission offsets are used only in areas which 
have been classified as the same or higher nonattainment 
classification.
    Correction: The Delaware Regulations were revised to add 25-2.5E. 
This provision requires that emission offsets must be generated in an 
area with the same or higher air quality classification.
    EPA is publishing this rule to convert its conditional approval of 
Delaware's NSR program to a full approval 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 rule will be effective on April 9, 
2001 without further notice unless EPA receives adverse comment by 
March 9, 2001. 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 converting its 
conditional approval of Delaware's NSR program to to a full approval. 
Any parties interested in commenting must do so at this time.

II. Final Action

    EPA is taking direct final action to convert its conditional 
approval of Delaware's revised New Source Review (NSR) regulations to a 
full approval and to incorporate those regulations into the Delaware 
State Implementation Plan (SIP). These regulations define the 
requirements for the nonattainment New Source Review program in 
Delaware. This action will also remove the conditional approval 
provision found at 40 CFR 52.424(c).

III. 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. 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. 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 Clean Air Act. 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 Clean Air Act. 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

[[Page 9211]]

``major rule'' as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action converting EPA's conditional approval of 
revisions to the Delaware SIP for NSR to a full approval must be filed 
in the United States Court of Appeals for the appropriate circuit by 
April 9, 2001. 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, Nitrogen dioxide, 
VOCs, Ozone.

    Dated: January 17, 2001.
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 Sec. 52.420, the table in paragraph (c) is amended by 
revising entries 1 and 2 under Regulation 25 to read as follows:


Sec. 52.420  Identification of plan.

* * * * *
    (c) * * *

                                                      EPA-Approved regulations in the Delaware Sip
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        State citation                   Title/subject               State effective date              EPA approval date                 Comments
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                   *                  *                  *                  *                  *                  *                  *
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                                                 Regulation 25  Requirements for preconstruction review.
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Section 1....................  General provisions..............  1/1/93 (as revised 5/11/99).  [2/7/01 and FR cite]               Excluding Sec.  1.2,
                                                                                                                                   1.6, 1.9(L), 1.9(M),
                                                                                                                                   1.9(N), 1.9(O) which
                                                                                                                                   relate to Prevention
                                                                                                                                   of Significant
                                                                                                                                   Deterioration.
Section 2....................  Emission offset provisions......  1/1/93 (as revised 5/11/99).  [2/7/01 and FR cite].............
 
                   *                  *                  *                  *                  *                  *                  *
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    3. In Sec. 52.424, paragraph (c) is removed and reserved.

[FR Doc. 01-3158 Filed 2-6-01; 8:45 am]
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