[Federal Register Volume 70, Number 210 (Tuesday, November 1, 2005)]
[Rules and Regulations]
[Pages 65847-65849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21751]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R03-OAR-2005-DE-0001; FRL-7992-3]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Ambient Air Quality Standard for Ozone and Fine Particulate 
Matter

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking final action to approve revisions to the 
Delaware State Implementation Plan (SIP). The revisions were submitted 
by the Delaware Department of Natural Resources and Environmental 
Control (DNREC) and consist of modifications to the ambient air quality 
standards for ozone and fine particulate matter. EPA is approving these 
revisions in the SIP in accordance with the Clean Air Act (CAA).

DATES: This final rule is effective on December 1, 2005.

ADDRESSES: EPA has established a docket for this action under Regional 
Material in EDocket (RME) ID Number R03-OAR-2005-DE-0001. All documents 
in the docket are listed in the RME index at http://docket.epa.gov/rmepub/. Once in the system, select ``quick search,'' then key in the 
appropriate RME identification number. Although listed in the 
electronic docket, some information is not publicly available, i.e., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in RME or in hard copy 
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. Copies of the State 
submittal are available at the Delaware Department of Natural Resources 
and Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, 
Delaware 19903.

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

SUPPLEMENTARY INFORMATION: 

I. Background

    On April 1, 2003, DNREC submitted a formal SIP revision that 
consists of an amendment that included the revised ambient air quality 
standards for ozone and particulate matter. On July 18, 2005 (70 FR 
41146), EPA published a direct final rule (DFR) approving revisions to 
the Delaware's SIP. An explanation of the CAA's requirements as they 
apply to Delaware and EPA's rationale for approving these SIP revisions 
were provided in the DFR and will not be restated here. In accordance 
with direct final rulemaking procedures, on July 18, 2005 (70 FR 
41166), EPA also published a companion notice of proposed rulemaking 
(NPR) on these SIP revisions inviting interested parties to comment on 
the DFR. Timely adverse comments were submitted on EPA's July 18, 2005 
DFR.
    On September 16, 2005 (70 FR 54639), due to receipt of the adverse 
comments submitted in response to the DFR, EPA published a withdrawal 
of the DFR. A summary of those comments and EPA's responses are 
provided in Section II of this document.

II. Summary of Public Comments and EPA Responses

    Comment: On July 18, 2005, a citizen submitted adverse comments on 
EPA's DFR notice approving Delaware's ambient air quality standards for 
ozone and fine particulate matter. The commenter states that the 
regulations are not strict enough and that they leave too much latitude 
for polluters to poison and kill us. The commenter also states that the 
fines and penalties for polluters should be increased by one thousand 
percent.
    Response: The rulemaking at issue is limited in scope and addresses 
the 1997 Federal 8-hour ozone and PM2.5 standards that Delaware 
incorporates into Section 6 of Regulation 3 of the Delaware Regulations 
Governing the Control of Air Pollution. The commenter did not submit 
any supporting technical data or information to support that the 
regulations are not strict enough. Rather the commenter makes broad 
statements alleging (1) that the regulations should be more stringent 
than those required under the Act, and (2) that the fines and penalties 
for polluters should be increased one thousand percent. These comments 
are not ``significant comments'' to which EPA needs to respond. Whitman 
v. American Trucking Ass'n., 531 U.S. 457, n.2 at 471 (2001) (Under the 
CAA, EPA need only respond to significant comments, i.e., comments 
relevant to EPA's decision). Mere ``assertions that in the opinions of 
the commenter the Agency got it wrong,'' are not relevant comments 
warranting a response. International Fabricare Inst. v. EPA, 972 F.2d 
384, 391 (D.C. Cir. 1992). As to the comment that the rules should be 
more stringent than required under the Act, EPA has no authority to 
mandate that a State regulate more stringently than required. Under the 
CAA's bifurcated scheme, the State is responsible for choosing how air 
pollution sources must be regulated for purposes of attaining the 
national ambient air quality standards (NAAQS) and EPA's role is 
limited in reviewing the State's choice to ensure it meets the minimum 
statutory requirements. Here, as is clear from the commenter's first 
comment, the commenter is not claiming that the

[[Page 65848]]

regulations do not meet the statutory minimum, but rather that the 
statute does not require enough. EPA has no authority to modify the 
statute, as requested by the commenter nor does EPA have authority to 
require the State to regulate more stringently than required by the 
statute. The CAA is based upon ``cooperative federalism,'' which 
contemplates that each State will develop its own SIP, and that States 
retain a large degree of flexibility in choosing which sources to 
control and to what degree. EPA must approve a State's plan if it meets 
the ``minimum requirements of the CAA.'' Union Elec. Co. v. EPA, 427 
U.S. 246, 264-266 (1976).
    As to the commenter's second point, this rulemaking does not 
address fines and penalties for polluters and, therefore, is not 
relevant to this rulemaking.

III. Final Action

    EPA is approving the revisions to the Delaware SIP submitted by 
DNREC on April 1, 2003 to incorporate the 8-hour ambient air quality 
standards for ozone and fine particulate matter. Delaware's SIP 
revisions for the ambient air quality standards for ozone and fine 
particulate matter are consistent with the 8-hour Federal NAAQS.

IV. Statutory and Executive Order Reviews

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. For this 
reason, this action is also not subject to Executive Order 
13211,''Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). 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 (Pub. L. 104-4). This rule also does not 
have tribal implications because it will not have a substantial direct 
effect on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes, 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
This action also does not have Federalism implications because it does 
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). 
This action 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 ``Protection of Children 
from Environmental Health Risks and Safety Risks'' (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. 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 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 January 3, 2006. 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 approving the Delaware's 8-hour ambient air 
quality standards for ozone and fine particulate matter 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, Particulate matter, Reporting and recordkeeping requirements, 
Volatile organic compounds.

    Dated: October 21, 2005.
 Donald S. Welsh,
Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart I--Delaware

0
2. In Section 52.420, the table in paragraph (c) is amended by adding 
an entry for Regulation 1, Section 2 after the existing entry, and 
revising the entries for Regulation 3, Sections 1, 6, and 11 to read as 
follows:


Sec.  52.420  Identification of plan.

    (c) EPA approved regulations.

[[Page 65849]]



                                  EPA-Approved Regulations in the Delaware SIP
----------------------------------------------------------------------------------------------------------------
                                                               State                              Additional
         State citation               Title/subject       effective date   EPA approval date      explanation
----------------------------------------------------------------------------------------------------------------
                             Regulation 1 Definitions and Administrative Principles
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 2......................  Definitions............      02/11/2003  11/1/2005 [Insert   Added definition
                                                                           page number where   of PM2.5.
                                                                           the document
                                                                           begins].
 
                                                  * * * * * * *
--------------------------------
                                   Regulation 3 Ambient Air Quality Standards
----------------------------------------------------------------------------------------------------------------
Section 1......................  General Provisions.....      02/11/2003  11/1/2005 [Insert   Addition of
                                                                           page number where   section 1.6.j.
                                                                           the document
                                                                           begins].
 
                                                  * * * * * * *
Section 6......................  Ozone..................      02/11/2003  11/1/2005 [Insert   Addition to
                                                                           page number where   section 6.1--
                                                                           the document        ``This standard
                                                                           begins].            shall be
                                                                                               applicable to New
                                                                                               Castle and Kent
                                                                                               Counties.''
                                                                                              Addition of
                                                                                               section 6.2.
 
                                                  * * * * * * *
Section 11.....................  PM10 and PM2.5               02/11/2003  11/1/2005 [Insert   Section title
                                  Particulates.                            page number where   added ``and
                                                                           the document        PM2.5.''
                                                                           begins].           Addition of
                                                                                               sections 11.2.a.
                                                                                               and 11.2.b.
--------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

[FR Doc. 05-21751 Filed 10-31-05; 8:45 am]
BILLING CODE 6560-50-P