[Federal Register Volume 64, Number 115 (Wednesday, June 16, 1999)]
[Rules and Regulations]
[Pages 32187-32189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15015]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[DE011-1020; FRL-6357-7]
Approval and Promulgation of Air Quality Implementation Plans;
Delaware; Reasonably Available Control Technology Requirements for
Nitrogen Oxides
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is granting conditional limited approval of a State
Implementation Plan (SIP) revision submitted by the State of Delaware.
This revision establishes and requires all major sources of nitrogen
oxides (NOX) to implement reasonably available control
technology (RACT). This revision was submitted to comply with the
NOX requirements of the Clean Air Act. The intended effect
of this action is to grant conditional limited approval of Delaware's
NOX RACT Regulation.
EFFECTIVE DATE: This final rule is effective on July 16, 1999.
ADDRESSES: 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; and Delaware
Department of Natural Resources and Environmental Control, Richardson &
Robins, 89 Kings Highway, Dover, Delaware 19901.
FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at quinto.rose@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On March 22, 1999 (64 FR 13753), EPA published a notice of proposed
rulemaking (NPR) for the State of Delaware. The NPR proposed
conditional limited approval of Delaware's Regulation No. 12, CONTROL
OF NITROGEN OXIDE EMISSIONS (NOX RACT Regulation). The
formal SIP revision was submitted by the Delaware Department of Natural
Resources and Environmental Control (DNREC) on January 11, 1993 and
amended on January 20, 1994.
A description of Delaware's SIP revision and EPA's rationale for
granting it conditional limited approval were provided in the NPR and
shall not be restated here. No public comments were received on the
NPR.
Terms of Conditional Approval
EPA is conditionally approving Delaware's NOX RACT
regulation based upon DNREC's commitment to submit all the source-
specific RACT determinations made under Section 5 of Regulation No. 12.
To fulfill the condition of this approval, DNREC must, by no later than
July 17, 2000 of Regulation No. 12, certify that it has submitted all
required case-by-case NOX RACT determinations for all
currently known subject sources. Once EPA has determined that DNREC has
met this condition, EPA shall remove the conditional nature of its
approval and Regulation No. 12 will, at that time, retain limited
approval status. Should DNREC fail to meet the condition as specified
above, the final conditional limited approval of the Delaware
NOX RACT regulation SIP revision shall convert to a
disapproval.
Terms of Limited Approval
Conversion of the Delaware NOX RACT Regulation to full
approval will occur when EPA has approved all of the case-by-case RACT
determinations submitted by DNREC in fulfillment of the conditional
approval described above.
[[Page 32188]]
As indicated previously, other specific requirements of and the
rationale for EPA's proposed actions are explained in the NPR and will
not be restated here. Further details are contained in the TSD, which
is available upon request, from the EPA Regional office listed in the
ADDRESSES section of this document.
II. Final Action
EPA is granting conditional limited approval to Delaware Regulation
No. 12 imposing RACT on major sources of NOX, submitted on
January 11, 1993 and January 20, 1994, as a revision to the Delaware
SIP.
III. Administrative Requirements
A. Executive Orders 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from review under E.O. 12866, entitled ``Regulatory
Planning and Review.''
B. Executive Order 12875
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a state, local, or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If EPA complies by consulting, E.O. 12875 requires EPA to
provide to the OMB a description of the extent of EPA's prior
consultation with representatives of affected state, local, and tribal
governments, the nature of their concerns, copies of written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, E.O. 12875 requires EPA to
develop an effective process permitting elected officials and other
representatives of state, local, and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.'' Today's rule does not
create a mandate on state, local or tribal governments. The rule does
not impose any enforceable duties on these entities. Accordingly, the
requirements of section 1(a) of E.O. 12875 do not apply to this rule.
C. Executive Order 13045
E.O. 13045, entitled ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that the EPA determines (1) is ``economically
significant,'' as defined under E.O. 12866, and (2) the environmental
health or safety risk addressed by the rule has a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This final rule is not subject to E.O. 13045 because it is not an
economically significant regulatory action as defined by E.O. 12866,
and it does not address an environmental health or safety risk that
would have a disproportionate effect on children.
D. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly affects or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments. If EPA complies by
consulting, E.O. 13084 requires EPA to provide to the OMB, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, E.O. 13084 requires EPA to develop an
effective process permitting elected and other representatives of
Indian tribal governments ``to provide meaningful and timely input in
the development of regulatory policies on matters that significantly or
uniquely affect their communities.'' Today's rule does not
significantly or uniquely affect the communities of Indian tribal
governments. This action does not involve or impose any requirements
that affect Indian Tribes. Accordingly, the requirements of section
3(b) of E.O. 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This final rule will not have a significant impact on a
substantial number of small entities because conditional and limited
approvals of SIP submittals under sections 110 and 301, and subchapter
I, part D of the Act do not create any new requirements but simply
approve requirements that the State is already imposing. Therefore,
because the Federal SIP approval does not impose any new requirements,
EPA certifies that it does not have a significant impact on any small
entities affected. Moreover, due to the nature of the Federal-State
relationship under the Clean Air Act, preparation of a flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
If the conditional approval is converted to a disapproval under
section 110(k), based on the State's failure to meet the commitment, it
will not affect any existing state requirements applicable to small
entities. Federal disapproval of the state submittal does not affect
its state-enforceability. Moreover, EPA's disapproval of the submittal
does not impose a new Federal requirement. Therefore, EPA certifies
that this disapproval action does not have a significant impact on a
substantial number of small entities because it does not remove
existing requirements nor does it substitute a new federal requirement.
F. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to State, local, or tribal governments in the aggregate;
or to private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated annual costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
pre-existing requirements under State or local law, and imposes no new
requirements. Accordingly, no
[[Page 32189]]
additional costs to State, local, or tribal governments, or to the
private sector, result from this action.
G. 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).
H. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action, pertaining to Delaware's NOX
RACT regulation, must be filed in the United States Court of Appeals
for the appropriate circuit by August 16, 1999. 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, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements.
Dated: May 27, 1999.
W. Michael McCabe,
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 adding
in numerical order a new entry for ``Regulation 12'' to read as
follows:
Sec. 52.420 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Regulations in the Delaware SIP
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State
State citation Title subject effective date EPA approval date Comments
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* * * * * * *
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Regulation 12--Control of Nitrogen Oxide Emissions
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Section 1............................ Applicability................ 11/24/93 June 16, 1999 [Federal Limited approval.
Register cite].
Section 2............................ Definitions.................. 11/24/93 June 16, 1999 [Federal Limited approval.
Register cite].
Section 3............................ Standards.................... 11/24/93 June 16, 1999 [Federal Limited approval.
Register cite].
Section 4............................ Exemptions................... 11/24/93 June 16, 1999 [Federal Limited approval.
Register cite].
Section 5............................ Alternative and Equivalent 11/24/93 June 16, 1999 [Federal Limited approval.
RACT Determinations. Register cite].
Section 6............................ RACT Proposals............... 11/24/93 June 16, 1999 [Federal Limited approval.
Register cite].
Section 7............................ Compliance Certification, 11/24/93 June 16, 1999 [Federal Limited approval.
Record Keeping, and Register cite].
Reporting Requirements.
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* * * * * * *
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* * * * *
3. Section 52.424 is amended by adding paragraph (d) to read as
follows:
Sec. 52.424 Conditional approval.
* * * * *
(d) Revisions to the Delaware State Implementation Plan, Regulation
No. 12, pertaining to NOX RACT requirements on major sources
submitted on January 11, 1993 and amended on January 20, 1994 by the
Delaware Department of Natural Resources and Environmental Control, is
conditionally approved. Delaware must meet the following condition by
no later than July 17, 2000, in accordance with criteria defined in the
EPA Memorandum dated November 7, 1996 from the Director of the Air
Quality Strategies and Standards Division of the Office of Air Planning
and Standards, entitled ``Approval Options for Generic RACT Rules
Submitted to Meet the Non-CTG VOC RACT Requirement and Certain
NOX RACT Requirements.'' This memorandum is available, upon
request, at the office of the U.S. Environmental Protection Agency,
Region III, 1650 Arch Street, Philadelphia, PA 19103.
This condition is:
(1) The DNREC must certify, in writing, that it has submitted, as
SIP revisions, RACT determinations for all sources subject to source-
specific NOX RACT requirements.
[FR Doc. 99-15015 Filed 6-15-99; 8:45 am]
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