[Federal Register Volume 71, Number 234 (Wednesday, December 6, 2006)]
[Rules and Regulations]
[Pages 70665-70667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-20645]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[FDMS Docket No. EPA-R03-OAR-2006-0933; FRL-8252-3]


State Operating Permit Programs; Delaware; Amendments to the 
Definition of a ``Major Source''

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to amend the State of 
Delaware's operating permit program to correct the definition of 
``major source.'' Delaware's revision was submitted in response to the 
Clean Air Act (CAA) Amendments of 1990 that required States to submit 
to EPA program revisions in accordance with the Federal Title V 
regulations. The EPA granted final approval of Delaware's operating 
permit program on November 19, 2001. Delaware amended its operating 
permit program to address the Federal EPA amendment to the Federal 
Title V regulation, which went into effect on November 27, 2001, and 
this action approves this amendment. Any parties interested in 
commenting on this action granting approval of Delaware's amendment to 
the Title V operating permit program should do so at this time.

DATES: This rule is effective on February 5, 2007 without further 
notice, unless EPA receives adverse written comment by January 5, 2007. 
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: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2006-0933 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: [email protected].
    C. Mail: EPA-R03-OAR-2006-0933, David Campbell, Chief, Permits and 
Technical Assessment Branch, Mailcode 3AP11, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2006-0933. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through www.regulations.gov 
or e-mail. The www.regulations.gov Web site is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through 
www.regulations.gov, your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., 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 http://www.regulations.gov or in hard copy 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 & Environmental Control, 89 Kings Highway, P.O. Box 1401, 
Dover, Delaware 19903.

FOR FURTHER INFORMATION CONTACT: Rosemarie Nino, (215) 814-3377, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: On May 18, 2004, the State of Delaware 
submitted an amendment to its State operating permit program. This 
amendment is the subject of this document and this section provides 
additional information on the amendment by addressing the following 
questions:

What Is the State Operating Permit Program?
What Are the State Operating Permit Program Requirements?
What Is Being Addressed in This Document?
What Is Not Being Addressed in This Document?
What Changes to Delaware's Operating Permit Program Is EPA 
Approving?
What Action Is Being Taken by EPA?

What Is the State Operating Permit Program?

    The Clean Air Act Amendments of 1990 required all States to develop 
operating permit programs that meet certain Federal criteria. When 
implementing the operating permit programs, the States require certain 
sources of air pollution to obtain permits that contain all of their 
applicable requirements under the Clean Air Act (CAA). The focus of the 
operating permit program is to improve enforcement by issuing each 
source a permit that consolidates all of its applicable CAA 
requirements into a Federally-enforceable document. By consolidating 
all of the applicable requirements for a given air pollution source 
into an operating permit, the source, the public, and the State 
environmental agency can more easily understand what CAA requirements 
apply and how compliance with those requirements is determined.
    Sources required to obtain an operating permit under this program 
include ``major'' sources of air pollution and certain other sources 
specified in the CAA or in EPA's implementing regulations. For example, 
all sources regulated under the acid rain program, regardless of size, 
must obtain operating permits. Examples of ``major'' sources include 
those that have the potential to emit 100 tons per year or more of 
volatile organic compounds, carbon monoxide, lead, sulfur dioxide, 
nitrogen oxides, or particulate matter (PM10 and 
PM2.5); those that emit 10 tons per year of any single 
hazardous air pollutant (HAP) specifically listed under the CAA; or 
those that emit 25 tons per year or more of a combination of HAPs. In 
areas that are not meeting the national ambient air quality standards 
(NAAQS) for ozone, carbon monoxide, or particulate matter, major 
sources are defined by the gravity of the nonattainment classification.

[[Page 70666]]

What Are the State Operating Permit Program Requirements?

    The minimum program elements for an approvable operating permit 
program are those mandated by Title V of the Clean Air Act Amendments 
of 1990 and established by EPA's implementing regulations at title 40, 
part 70--``State Operating Permit Programs'' in the Code of Federal 
Regulations (40 CFR part 70). Title V required state and local air 
pollution control agencies to develop operating permit programs and 
submit them to EPA for approval by November 15, 1993. Under Title V, 
State and local air pollution control agencies that implement operating 
permit programs are called ``permitting authorities''.
    The State was granted final full approval effective on November 19, 
2001. On May 18, 2004, Delaware submitted an amendment to its currently 
EPA-approved Title V operating permit program. In general, Delaware 
amended its operating permit program regulations to make the current 
definition of a ``major source'' as stringent as the corresponding 
provision of 40 CFR Part 70, which went into effect on November 27, 
2001. This change will make this aspect of Regulation No. 30 consistent 
with the Federal rule.

What Is Being Addressed in This Document?

    This action approves an amendment to the Delaware Title V operating 
permit program to correct the definition of a ``major source.'' This 
amendment would change the definition of ``a major source'' by removing 
the phrase ``but only with respect to those air pollutants that have 
been regulated for that category'' from the Regulation 30 (Title V) 
definition of a major source as it applies to Federal standards.

What Is Not Being Addressed in This Document?

    EPA is not opening the entirety of Delaware's Title V operating 
permit program up to public comment, we are only addressing this change 
to the definition of ``major source''.

What Changes to Delaware's Program Is EPA Approving?

    Delaware has revised Regulation 30, Section 2--Definitions, of the 
State of Delaware Regulations Governing the Control of Air Pollution to 
be consistent with the provision of 40 CFR 70.2. This action is 
necessary because the current definition is less stringent than the 
corresponding provision of 40 CFR part 70, which went into effect on 
November 27, 2001.

Change to Delaware's Program That Corrects a Deficiency

    The EPA has reviewed Delaware's May 18, 2004 program amendment in 
conjunction with the portion of Delaware's program that was earlier 
approved. Based on this review, EPA is granting full approval of 
Delaware's amended operating permit program. The EPA has determined 
that this amendment to Delaware's operating permit program adequately 
addresses the deficiency. Delaware's operating permit program, 
including this amendment submitted on May 18, 2004, fully meets the 
minimum requirements of 40 CFR part 70.

What Action Is Being Taken by EPA?

    The State of Delaware has satisfactorily addressed a program 
deficiency when EPA made a change to the Federal rule. The operating 
permit program amendment that is the subject of this document 
considered together with that portion of Delaware's operating permit 
program that was earlier approved fully satisfy the requirements of 40 
CFR part 70 and the Clean Air Act. Therefore, EPA is taking direct 
final action to fully approve the Delaware Title V operating permit 
program in accordance with 40 CFR 70.2 definition of ``a major 
source.''
    The EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. 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 this amendment to Delaware's operating 
permit program if adverse comments are filed relevant to the issues 
discussed in this action. This rule will be effective on February 5, 
2007. If EPA receives adverse comments, EPA will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. The EPA will address all public comments in a 
subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. Please note that if 
EPA receives adverse comment on an amendment, paragraph or section of 
this rule and if that provision may be severed from the remainder of 
the rule, EPA may adopt as final those provisions of the rule that are 
not subject of an adverse comment.

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 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), nor will it 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 State operating permit program 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 an operating permit program for 
failure to use VCS. It would thus be inconsistent with applicable law 
for EPA, when it reviews an operating permit program submission, to use 
VCS

[[Page 70667]]

in place of an operating permit program 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. The 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 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 February 5, 2007. 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 fully approving Delaware's Title V 
operating permit program may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)
    This action approves an amendment to the Delaware Title V operating 
permit program to correct the definition of a ``major source.''

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Reporting and recordkeeping requirements.

    Dated: November 21, 2006.
William T. Wisniewski,
Acting Regional Administrator, Region III.

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40 CFR part 70 is amended as follows:

PART 70--[AMENDED]

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1. The authority citation for part 70 continues to read as follows:

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


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2. Appendix A to part 70 is amended by adding paragraph (c) in the 
entry for Delaware to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

Delaware

    (c) The Delaware Department of Natural Resources and 
Environmental Control submitted program amendment on May 18, 2004. 
This rule amendment contained in the May 18, 2004 submittal is 
necessary to make the current definition as stringent as the 
corresponding provision of 40 CFR part 70, which went into effect on 
November 27, 2001. The State is hereby granted approval effective on 
February 5, 2007.

[FR Doc. E6-20645 Filed 12-5-06; 8:45 am]
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