[Federal Register Volume 84, Number 76 (Friday, April 19, 2019)]
[Proposed Rules]
[Pages 16426-16430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07714]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2019-0010; FRL-9992-44-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Delaware; Nonattainment New Source Review Requirements for 2008 8-Hour
Ozone Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a revision to Delaware's state implementation plan (SIP). The
SIP revision is in response to EPA's February 3, 2017 Findings of
Failure to
[[Page 16427]]
Submit for various requirements relating to the 2008 8-hour ozone
national ambient air quality standards (NAAQS). This SIP revision is
specific to nonattainment new source review (NNSR) requirements. EPA is
approving this revision in accordance with the requirements of the
Clean Air Act (CAA).
DATES: Written comments must be received on or before May 20, 2019.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2019-0010 at https://www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov, follow
the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be confidential business information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the For Further Information Contact section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Amy Johansen, Office of Permits and
State Programs (3AP10), Air Protection Division, U.S. Environmental
Protection Agency, Region 3, 1650 Arch Street, Philadelphia,
Pennsylvania 19103. The telephone number is (215)814-2156. Ms. Johansen
can also be reached via electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On June 29, 2018, the Department of Natural Resources and
Environmental Control (DNREC) submitted on behalf of the state of
Delaware a formal SIP revision, requesting EPA's approval of its NNSR
Certification for the 2008 8-hour ozone NAAQS. This SIP revision is in
response to EPA's final 2008 8-hour ozone NAAQS Findings of Failure to
Submit for NNSR requirements. See 82 FR 9158 (February 3, 2017).
Specifically, Delaware is certifying that its existing NNSR program,
covering the Delaware portion of the Philadelphia-Wilmington-Atlantic
City, PA-NJ-MD-DE (Philadelphia Area) nonattainment area (which
includes New Castle County) and the entire Seaford, DE (Seaford Area)
nonattainment area (which includes Sussex County) for the 2008 8-hour
ozone NAAQS, is at least as stringent as the requirements at 40 CFR
51.165, as amended by the final rule titled ``Implementation of the
2008 National Ambient Air Quality Standards for Ozone: State
Implementation Plan Requirements'' (SIP Requirements Rule), for ozone
and its precursors.1 2 See 80 FR 12264 (March 6, 2015).
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\1\ The SIP Requirements Rule addresses a range of nonattainment
area SIP requirements for the 2008 8-hour ozone NAAQS, including
requirements pertaining to attainment demonstrations, reasonable
further progress (RFP), reasonably available control technology,
reasonably available control measures, major new source review,
emission inventories, and the timing of SIP submissions and of
compliance with emission control measures in the SIP. The rule also
revokes the 1997 ozone NAAQS and establishes anti-backsliding
requirements.
\2\ On February 16, 2018, the United States Court of Appeals for
the District of Columbia Circuit (D.C. Cir. Court or Court) issued
an opinion on the EPA's SIP Requirements Rule. South Coast Air
Quality Mgmt. Dist. v. EPA, 882 F.3d 1138, 2018 U.S. App. LEXIS 3636
(D.C. Cir. February 16, 2018). The D.C. Cir. Court found certain
provisions from the SIP Requirements Rule, including certain
provisions relating to anti-backsliding, to be inconsistent with the
statute or unreasonable and vacated those provisions. Id. The Court
found other parts of the SIP Requirements Rule unrelated to anti-
backsliding and this action reasonable and denied the petition for
appeal on those provisions. Id.
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A. 2008 8-Hour Ozone NAAQS
On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of
0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under
EPA's regulations at 40 CFR 50.15, the 2008 8-hour ozone NAAQS is
attained when the three-year average of the annual fourth-highest daily
maximum 8-hour average ambient air quality ozone concentration is less
than or equal to 0.075 ppm.
Upon promulgation of a new or revised NAAQS, the CAA requires EPA
to designate as nonattainment any area that is violating the NAAQS
based on the three most recent years of ambient air quality data at the
conclusion of the designation process. The Seaford and Philadelphia
Areas were classified as marginal nonattainment for the 2008 8-hour
ozone NAAQS on May 21, 2012 (effective July 20, 2012) using 2008-2010
ambient air quality data. See 77 FR 30088. On March 6, 2015, EPA issued
the final SIP Requirements Rule, which establishes the requirements
that state, tribal, and local air quality management agencies must meet
as they develop implementation plans for areas where air quality
exceeds the 2008 8-hour ozone NAAQS. See 80 FR 12264. Areas that were
designated as marginal ozone nonattainment areas were required to
attain the 2008 8-hour ozone NAAQS no later than July 20, 2015, based
on 2012-2014 monitoring data. See 40 CFR 51.1103. The Seaford Area
attained the 2008 8-hour ozone NAAQS by July 20, 2015 and the EPA
Administrator signed a final Determination of Attainment (DOA) on April
11, 2016. See 81 FR 26697 (May 4, 2016). The Philadelphia Area did not
attain the 2008 8-hour ozone NAAQS by July 20, 2015; however, the area
did meet the CAA section 181(a)(5) criteria, as interpreted in 40 CFR
51.1107, for a one-year attainment date extension. Id. Therefore, in
same rulemaking action, the EPA Administrator signed a final rule
extending the Philadelphia Area 8-hour ozone NAAQS attainment date from
July 20, 2015 to July 20, 2016. Id.\3\
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\3\ On November 2, 2017, EPA approved a DOA for the 2008 8-hour
ozone NAAQS for Philadelphia Area. This action was based on
complete, certified, and quality assured ambient air quality
monitoring data for the 2013-2015 monitoring period. See 82 FR
50814. It should be noted that a DOA does not alleviate the need for
Delaware to certify that their existing SIP approved NNSR program is
as stringent as the requirements at 40 CFR 51.165, as NNSR applies
in nonattainment areas until an area has been redesignated to
attainment.
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Based on initial nonattainment designations for the 2008 8-hour
ozone NAAQS, as well as the March 6, 2015 final SIP Requirements Rule,
Delaware was required to develop a SIP revision addressing certain CAA
requirements for the Seaford and Philadelphia Areas, and submit to EPA
a NNSR Certification SIP or SIP revision no later than 36 months after
the effective date of the areas designations for the 2008 8-hour ozone
NAAQS (i.e., July 20, 2015).\4\ See 80 FR 12264 (March 6, 2015). EPA is
proposing to approve Delaware's June 29, 2018 NNSR Certification SIP
revision. EPA's analysis of how this SIP revision addresses the NNSR
requirements for the 2008 8-hour ozone NAAQS is provided in Section II
of this rulemaking action.
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\4\ Neither Delaware's obligation to submit the NNSR
Certification SIP nor the requirements governing that submission
were affected by the D.C. Circuit's February 16, 2018 decision on
portions of the SIP Requirements Rule in South Coast Air Quality
Mgmt. Dist. v. EPA.
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B. 2017 Findings of Failure To Submit SIP for the 2008 8-Hour Ozone
NAAQS
Areas designated nonattainment for the ozone NAAQS are subject to
the general nonattainment area planning
[[Page 16428]]
requirements of CAA section 172 and also to the ozone-specific planning
requirements of CAA section 182.\5\ States in the ozone transport
region (OTR), such as Delaware, are additionally subject to the
requirements outlined in CAA section 184.
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\5\ Ozone nonattainment areas are classified based on the
severity of their ozone levels (as determined based on the area's
``design value,'' which represents air quality in the area for the
most recent three years). The possible classifications for ozone
nonattainment areas are Marginal, Moderate, Serious, Severe, and
Extreme. See CAA section 181(a)(1).
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Ozone nonattainment areas in the lower classification levels have
fewer and/or less stringent mandatory air quality planning and control
requirements than those in higher classifications. For marginal areas,
such as the Seaford and Philadelphia Areas, a state is required to
submit a baseline emissions inventory, adopt a SIP requiring emissions
statements from stationary sources, and implement a NNSR program for
the relevant ozone standard. See CAA section 182(a).\6\ For each higher
ozone nonattainment classification, a state needs to comply with all
lower area classification requirements, plus additional emissions
controls and more expansive NNSR offset requirements.
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\6\ EPA approved Delaware's 2011 base year inventories for both
the Seaford and Philadelphia Areas (specifically, Sussex and New
Castle County, Delaware). See 80 FR 59052 (October 1, 2015).
Delaware also submitted their emissions statements certification to
EPA for approval on June 29, 2018. EPA is addressing the emissions
statements certification in a separate rulemaking action.
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The CAA sets out specific requirements for states in the OTR.\7\
Upon promulgation of the 2008 8-hour ozone NAAQS, states in the OTR
were required to submit a SIP revision addressing reasonable available
control technology (RACT). See 40 CFR 51.1116. This requirement is the
only recurring obligation for an OTR state upon revision of a NAAQS,
unless that state also contains some portion of a nonattainment area
for the revised NAAQS.\8\ In that case, the nonattainment requirements
described previously also apply to those portions of that state
(Delaware in this case). In the March 6, 2015 SIP Requirements Rule,
EPA detailed the requirements applicable to ozone nonattainment areas,
as well as requirements that apply in the OTR, and provided specific
deadlines for SIP submittals. See 80 FR 12264.
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\7\ CAA section 184 details specific requirements for a group of
states (and the District of Columbia) that make up the OTR. States
in the OTR are required to submit RACT SIP revisions and mandate a
certain level of emissions control for the pollutants that form
ozone, even if the areas in the state meet the ozone standards.
While not the subject of this action, EPA approved Delaware's OTR
RACT SIP. See 82 FR 57849 (December 8, 2017).
\8\ NNSR requirements continue to apply in the OTR. See CAA
section 184(b).
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On February 3, 2017, EPA found that 15 states and the District of
Columbia failed to submit SIP revisions in a timely manner to satisfy
certain requirements for the 2008 8-hour ozone NAAQS that apply to
nonattainment areas and/or states in the OTR. See 82 FR 9158. These
Findings of Failure to Submit established certain deadlines for the
imposition of sanctions, if a state does not submit a timely SIP
revision addressing the requirements for which the finding is being
made, and for EPA to promulgate a Federal implementation plan (FIP) to
address any outstanding SIP requirements.
EPA found, inter alia, that Delaware failed to submit SIP revisions
in a timely manner to satisfy NNSR requirements for the Seaford and
Philadelphia Areas. Delaware submitted its June 29, 2018 SIP revision
to address the specific NNSR requirements for the 2008 8-hour ozone
NAAQS, located in 40 CFR 51.160-165, as well as its obligations under
EPA's February 3, 2017 Findings of Failure to Submit. EPA's analysis of
how this SIP revision addresses the NNSR requirements for the 2008 8-
hour ozone NAAQS and the Findings of Failure to Submit is provided in
Section II of this rulemaking action.
II. Summary of SIP Revision and EPA Analysis
This rulemaking action is specific to Delaware's NNSR requirements.
NNSR is a preconstruction review permit program that applies to new
major stationary sources or major modifications at existing sources
located in a nonattainment area.\9\ The specific NNSR requirements for
the 2008 8-hour ozone NAAQS are located in 40 CFR 51.160 through
51.165. As set forth in the SIP Requirements Rule, for each
nonattainment area, a NNSR plan or plan revision was due no later than
36 months after the July 20, 2012 effective date of area designations
for the 2008 8-hour ozone standard (i.e., July 20, 2015).\10\
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\9\ See CAA sections 172(c)(5), 173 and 182.
\10\ With respect to states with nonattainment areas subject to
a Findings of Failure to Submit NNSR SIP revisions, such revisions
would no longer be required if the area were redesignated to
attainment. The CAA's prevention of significant deterioration (PSD)
program requirements apply in lieu of NNSR after an area is
redesignated to attainment. For areas outside the OTR, NNSR
requirements do not apply in areas designated as attainment.
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The minimum SIP requirements for NNSR permitting programs for the
2008 8-hour ozone NAAQS are located in 40 CFR 51.165. See 40 CFR
51.1114. These NNSR program requirements include those promulgated in
the ``Phase 2 Rule'' implementing the 1997 8-hour ozone NAAQS (75 FR
71018 (November 29, 2005)) and the SIP Requirements Rule implementing
the 2008 8-hour ozone NAAQS. Under the Phase 2 Rule, the SIP for each
ozone nonattainment area must contain NNSR provisions that: Set major
source thresholds for oxides of nitrogen (NOX) and volatile
organic compounds (VOC) pursuant to 40 CFR 51.165(a)(1)(iv)(A)(1)(i)-
(iv) and (2); classify physical changes as a major source if the change
would constitute a major source by itself pursuant to 40 CFR
51.165(a)(1)(iv)(A)(3); consider any significant net emissions increase
of NOX as a significant net emissions increase for ozone
pursuant to 40 CFR 51.165(a)(1)(v)(E); consider certain increases of
VOC emissions in extreme ozone nonattainment areas as a significant net
emissions increase and a major modification for ozone pursuant to 40
CFR 51.165(a)(1)(v)(F); set significant emissions rates for VOC and
NOX as ozone precursors pursuant to 40 CFR
51.165(a)(1)(x)(A)-(C) and (E); contain provisions for emissions
reductions credits pursuant to 40 CFR 51.165(a)(3)(ii)(C)(1)-(2);
provide that the requirements applicable to VOC also apply to
NOX pursuant to 40 CFR 51.165(a)(8); and set offset ratios
for VOC and NOX pursuant to 40 CFR 51.165(a)(9)(i)-(iii)
(renumbered as (a)(9)(ii)-(iv) under the SIP Requirements Rule for the
2008 8-hour ozone NAAQS). Under the SIP Requirements Rule for the 2008
8-hour ozone NAAQS, the SIP for each ozone nonattainment area
designated nonattainment for the 2008 8-hour ozone NAAQS and designated
nonattainment for the 1997 ozone NAAQS on April 6, 2015, must also
contain NNSR provisions that include the anti-backsliding requirements
at 40 CFR 51.1105. See 40 CFR 51.165(a)(12).
Delaware's SIP approved NNSR program, established in Title 7
Delaware Administrative Code (DE Admin Code) 1125 (Requirements for
Preconstruction Review), apply to the construction and modification of
major stationary sources in nonattainment areas. In its June 29, 2018
SIP revision, Delaware certifies that the version of Title 7 DE Admin
Code Section 1125 approved in the SIP is at least as stringent as the
Federal NNSR requirements for the Seaford and Philadelphia Areas. EPA
last approved revisions to Delaware's NNSR SIP on February 28, 2013.
See 78 FR 13496. In that action, EPA approved revisions to Delaware's
SIP which made DNREC's
[[Page 16429]]
NNSR program consistent with Federal requirements. Id. EPA notes that
neither 7 DE Admin Code 1125 nor Delaware's approved SIP have the
regulatory provision for any emissions change of VOC in extreme
nonattainment areas, specified in 40 CFR 51.165(a)(1)(v)(F), because
Delaware has never had an area designated extreme nonattainment for any
of the ozone NAAQS. Therefore, the Delaware SIP is not required to have
this requirement for VOC in extreme nonattainment areas until such time
as Delaware has an extreme ozone nonattainment area.
As for consistency with 40 CFR 51.165(a)(3)(ii)(C)(1), Delaware's
approved SIP contains appropriate regulatory provisions establishing
emissions reduction credits (ERC) that are permanent, quantifiable, and
Federally enforceable.\11\ See 7 DE Admin Code 1125 Section 2.5.1.
However, neither 7 DE Admin Code 1125 nor Delaware's approved SIP
contain a regulatory provision pertaining to establishing ERC, as
specified in 40 CFR 51.165(a)(3)(ii)(C)(2)(i) and 40 CFR
51.165(a)(3)(ii)(C)(2)(ii). Nonetheless, even if Delaware's regulations
do not offer these specific emissions reductions credit options, as
stated previously, their approved SIP is still adequate to meet the
standard ERC requirements found in 40 CFR 51.165(a)(3)(ii)(C)(1), where
emissions reductions must be surplus, permanent, quantifiable, and
Federally enforceable, for example. See 7 DE Admin Code 1125, Section
2.5.1. Delaware has the appropriate ERC requirements approved in their
SIP, which enables them to implement the program appropriately and in
accordance with Federal requirements.
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\11\ On October 20, 2016, EPA disapproved a proposed SIP
revision that sought to include additional ERC provisions, adopted
by Delaware on December 11, 2016, into the Delaware SIP,
specifically, 7 DE Admin Code 1125 Sections 2.5.5 and 2.5.6. See 81
FR 72529. Since EPA disapproved these provisions, the previously
approved provisions that EPA approved into Delaware's SIP on October
2, 2012 remain applicable Federal requirements. See 77 FR 60053.
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Given the D.C. Cir. Court's recent ruling in South Coast Air
Quality Mgmt. Dist. v. EPA vacating the anti-backsliding provisions of
the SIP Requirements Rule, Delaware remains required to comply with the
anti-backsliding provisions found in 40 CFR 51.165(a)(12). In Delaware,
neither 7 DE Admin Code 1125 nor the Delaware SIP contain the anti-
backsliding language found in 40 CFR 51.165(a)(12), which applied to
NNSR requirements for the 1997 ozone NAAQS. However, EPA finds that 7
DE Admin Code 1125 and Delaware's SIP presently include all required
major stationary source thresholds and emissions offset ratios for NSR
purposes.
The entire state of Delaware is located within the OTR and any
source in the OTR is considered major for NOX and VOC if it
emits or has the potential to emit at least 100 tons per year or 50
tons per year, respectively. See CAA section 184(b). This major
stationary source threshold requirement is specified in 7 DE Admin Code
1125, Sections 1.9 and 2.2.2.1, as well as Delaware's approved SIP, and
is equivalent to the requirements which would be applicable to major
stationary sources in a moderate nonattainment area. On April 30, 2004,
the Philadelphia Area, which included New Castle, Kent, and Sussex
Counties, was designated as moderate nonattainment for the 1997 8-hour
ozone NAAQS. See 69 FR 23951 and 40 CFR 81.308.
Additionally, in Delaware, the term ``significant'' when used in
reference to a source's emission rates for NOX and VOC are
lower than the typical emissions rate for an area that is moderate
nonattainment. For example, in 7 DE Admin Code 1125 Section 1.9, an
emissions increase is considered ``significant'' if it equals or
exceeds 25 tons per year of NOX or VOC in New Castle or Kent
Counties, which is based on the severe area designation those counties
had for the prior 1-hour ozone NAAQS and 40 tons per year of
NOX or VOC in Sussex County.\12\ Therefore, EPA finds that
Delaware's regulations and approved SIP are more stringent than EPA's
NNSR anti-backsliding requirements and its program is adequate to
implement NNSR for the 2008 ozone NAAQS. Delaware's major stationary
source threshold and offset provisions in 7 DE Admin Code 1125 remain
in its Federally-approved SIP unless and until EPA approves a full
NAAQS redesignation request from Delaware in accordance with CAA
section 107. Thus, EPA finds that Delaware's SIP includes relevant and
required anti-backsliding requirements. EPA expects that DNREC will
continue to implement its NNSR program consistent with its approved SIP
for major stationary source thresholds and emission offset ratios.
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\12\ As identified previously in Section I.A. in this
rulemaking, the Seaford and Philadelphia Areas are classified as
marginal nonattainment for the 2008 8-hour ozone NAAQS, a
classification imposes less stringent requirements than an area
classified as moderate nonattainment.
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The version of 7 DE Admin Code 1125 that is contained in the
current SIP has not changed, with respect to NNSR since the 2013
rulemaking where EPA last approved Delaware's NNSR provisions. This
version of the SIP approved rule covers the Seaford and Philadelphia
Areas and remains adequate to meet all applicable NNSR requirements for
the 2008 8-hour ozone NAAQS found in 40 CFR 51.165, the Phase 2 Rule
and the SIP Requirements Rule.
III. Proposed Action
EPA is proposing to approve Delaware's June 29, 2018 SIP revision
addressing the NNSR requirements for the 2008 ozone NAAQS for the
Seaford and Philadelphia Areas. EPA has concluded Delaware's submission
fulfills the 40 CFR 51.1114 revision requirement, meets the
requirements of CAA sections 110 and 172 and the minimum SIP
requirements of 40 CFR 51.165, as well as its obligations under EPA's
February 3, 2017 Findings of Failure to Submit. See 82 FR 9158. EPA is
soliciting public comments on the issues discussed in this document.
These comments will be considered before taking final action.
IV. Statutory and Executive Order Reviews
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 proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866.
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
[[Page 16430]]
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 proposed rule, approving Delaware's 2008 8-hour
ozone NAAQS Certification SIP revision for NNSR does not have tribal
implications as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 4, 2019.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
[FR Doc. 2019-07714 Filed 4-18-19; 8:45 am]
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