[Federal Register Volume 78, Number 74 (Wednesday, April 17, 2013)]
[Rules and Regulations]
[Pages 22785-22788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-08926]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2013-0091; FRL-9803-3]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware, State Board Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a revision to the 
Delaware State Implementation Plan (SIP) submitted by the Delaware 
Department of Natural Resources and Environmental Control (DNREC) on 
January 11, 2013. The SIP revision addresses requirements of the Clean 
Air Act (CAA) for all criteria pollutants of the national ambient air 
quality standards (NAAQS) in relation to State Boards. EPA is approving 
this SIP revision in accordance with the requirements of the CAA.

DATES: This rule is effective on June 17, 2013 without further notice, 
unless EPA receives adverse written comment by May 17, 2013. 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-2013-0091 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: [email protected].
    C. Mail: EPA-R03-OAR-2013-0091, Cristina Fernandez, Associate 
Director, Office of Air Program Planning, Mailcode 3AP30, 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-
2013-0091. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at 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 email. 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 email comment 
directly to EPA without going through www.regulations.gov, your email 
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 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 and 
Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware 
19903.

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

SUPPLEMENTARY INFORMATION:

I. Background

    Section 128 of the CAA requires SIPs to comply with the 
requirements regarding State Boards. Section 110(a)(2)(E)(ii) of the 
CAA also references these requirements. Section 128(a) of the CAA 
requires SIPs to contain provisions that: (1) Any board or body which 
approves permits or enforcement orders under the CAA have at least a 
majority of its members

[[Page 22786]]

represent the public interest and not derive any significant portion of 
their income from persons subject to permits or enforcement orders 
under the CAA; and (2) any potential conflict of interest by members of 
such board or body or the head of an executive agency with similar 
powers be adequately disclosed.
    The requirements of CAA section 128(a)(1) are not applicable to 
Delaware because it does not have any board or body which approves air 
quality permits or enforcement orders. The requirements of CAA section 
128(a)(2), however, are applicable to Delaware because DNREC's cabinet 
level Secretary (i.e., the head of an executive agency) makes the 
referenced decisions.

II. Summary of SIP Revision

    On January 11, 2013, DNREC submitted a SIP revision that addresses 
the requirements of CAA sections 128 and 110(a)(2)(E)(ii) for all 
criteria pollutants NAAQS in relation to State Boards. Delaware's 
statutes governing the relevant section 128 requirements are found in 
29 Delaware Code Chapter 58, ``Laws Regulating the Conduct of Officers 
and Employees of the State.'' The conduct of the DNREC Secretary, and 
that of his employees, is subject to the requirements of 29 Delaware 
Code Chapter 58. State employees are required to follow the laws in 
Chapter 58 regarding employee conduct. Delaware is incorporating only 
certain relevant provisions of Chapter 58 into this SIP revision.

Chapter 58, Subpart I, State Employees', Officers' and Officials' Code 
of Conduct

Section 5804. Definitions
Section 5805. Prohibitions relating to conflicts of interest
    (a) Restrictions on exercise of official authority.
    (b) Restrictions on representing another's interest before the 
State.
    (c) Restrictions on contracting with the State.
    (f) Criminal sanctions.
    (g) Contracts voidable by court action.
    (h) Exceptions for transportation contracts with school districts.
Section 5806. Code of conduct
    (c) Financial interest in any private enterprise directly involved 
in decisions.
    (d) Financial interest in any private enterprise subject to the 
regulatory jurisdiction.

Chapter 58, Subpart II, Financial Disclosure

Section 5812. Definitions
Section 5813. Report disclosing financial information
Section 5813A. Report disclosing council or board membership
Section 5815. Violations; penalties; jurisdiction of Superior Court

III. EPA's Analysis of Delaware's SIP Revision

    CAA sections 128 and 110(a)(2)(E)(ii) require that each state's SIP 
demonstrates how State Boards who approve CAA permits or enforcement 
orders disclose any potential conflicts of interest. DNREC approves all 
CAA permits and enforcement orders in Delaware. DNREC is an executive 
agency that acts through its Secretary or a delegated state employee 
subordinate. DNREC submits that public disclosure of any potential 
conflict in the SIP as required by CAA sections 128 and 
110(a)(2)(E)(ii) is satisfied by 29 Delaware Code Chapter 58.
    Chapter 58 applies to state employees and prohibits their exercise 
of official duties when there is a conflict of interest. The SIP 
revision reflects this existing law and demonstrates that Delaware 
complies with the requirements of CAA sections 128 and 
110(a)(2)(E)(ii).

IV. Final Action

    EPA is approving the Delaware SIP revision that addresses the 
requirements of CAA sections 128 and 110(a)(2)(E)(ii) for all criteria 
pollutants NAAQS. The SIP revision, which consists of relevant 
provisions of 29 Delaware Code Chapter 58, meets the requirements of 
CAA sections 128 and 110(a)(2)(E)(ii). EPA is publishing this rule 
without prior proposal because EPA 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 June 17, 2013 without further notice unless EPA 
receives adverse comment by May 17, 2013. 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.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP which meets CAA sections 128 and

[[Page 22787]]

110(a)(2)(E)(ii) is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

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 action 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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action 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 June 17, 2013. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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 SIP revision for purposes of meeting 
the CAA sections 128 and 110(a)(2)(E)(ii) requirements for all criteria 
pollutants of the NAAQS in relation to State Boards, 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, Incorporation by 
reference.

    Dated: April 3, 2013.
W.C. Early,
Acting Regional Administrator, Region III.
    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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. Section 52.420 is amended by:
0
a. Revising table heading in paragraph (c) to read ``EPA-Approved 
Regulations and Statutes in the Delaware SIP.''
0
b. The Table in paragraph (c) is amended by adding entries for Chapter 
58 at the end of the table.
0
c. The table in paragraph (e) is amended by adding an entry for ``CAA 
sections 128 and 110(a)(2)(E)(ii) requirements in relation to State 
Boards for all criteria pollutants'' at the end of the table.
    The additions and revisions read as follows:


Sec.  52.420  Identification of plan.

* * * * *
    (c) * * *

                            EPA-Approved Regulations and Statutes in the Delaware SIP
----------------------------------------------------------------------------------------------------------------
                                                        State                                    Additional
     State regulation           Title/subject      effective date     EPA approval date         explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                  Chapter 58 Laws Regulating the Conduct of Officers and Employees of the State
----------------------------------------------------------------------------------------------------------------
                      Subpart I State Employees', Officers' and Officials' Code of Conduct
----------------------------------------------------------------------------------------------------------------
Section 5804.............  Definitions...........         12/4/12  4/17/13 [Insert         .....................
                                                                    Federal Register page
                                                                    number where the
                                                                    document begins and
                                                                    date].
Section 5805.............  Prohibitions relating          12/4/12  4/17/13 [Insert         Paragraphs (a), (b),
                            to conflicts of                         Federal Register page   (c), (f), (g), (h).
                            interest.                               number where the
                                                                    document begins and
                                                                    date].
Section 5806.............  Code of conduct.......         12/4/12  4/17/13 [Insert         Paragraphs (c) and
                                                                    Federal Register page   (d).
                                                                    number where the
                                                                    document begins and
                                                                    date].
----------------------------------------------------------------------------------------------------------------
                                         Subpart II Financial disclosure
----------------------------------------------------------------------------------------------------------------
Section 5812.............  Definitions...........         12/4/12  4/17/13 [Insert         .....................
                                                                    Federal Register page
                                                                    number where the
                                                                    document begins and
                                                                    date].
Section 5813.............  Report disclosing              12/4/12  4/17/13 [Insert         Paragraphs (a), (b),
                            financial information.                  Federal Register page   (c) and (d).
                                                                    number where the
                                                                    document begins and
                                                                    date].
Section 5813A............  Report disclosing              12/4/12  4/17/13 [Insert         Paragraphs (a), and
                            council and board                       Federal Register page   (b).
                            membership.                             number where the
                                                                    document begins and
                                                                    date].
Section 5815.............  Violations; penalties;         12/4/12  4/17/13 [Insert         Paragraphs (a), (b),
                            jurisdiction of                         Federal Register page   (c) and (d).
                            Superior Court.                         number where the
                                                                    document begins and
                                                                    date].
----------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *

[[Page 22788]]



----------------------------------------------------------------------------------------------------------------
    Name of non-regulatory SIP          Applicable           State                                Additional
             revision                geographic area    submittal date   EPA approval date       explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
CAA sections 128 and               Statewide..........         1/11/13  4/17/13 [Insert      ...................
 110(a)(2)(E)(ii) requirements in                                        Federal Register
 relation to State Boards for all                                        page number where
 criteria pollutants.                                                    the document
                                                                         begins and date].
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[FR Doc. 2013-08926 Filed 4-16-13; 8:45 am]
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