[Federal Register Volume 63, Number 64 (Friday, April 3, 1998)]
[Rules and Regulations]
[Pages 16433-16435]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8793]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[DE-12-1-5886; FRL-5990-2]
Approval and Promulgation of Air Quality Implementation Plans;
Delaware New Source Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is conditionally approving a State Implementation Plan
(SIP) revision submitted by the State of Delaware for the New Source
Review (NSR) program. This revision establishes and requires the review
and permitting of new major sources and major modifications of major
sources in nonattainment areas. The changes primarily pertain to the
ozone precursors, volatile organic compounds (VOCs) and nitrogen oxides
(NOx). EPA is conditionally approving the NSR SIP revisions
submitted by Delaware because the revisions strengthen the SIP, but
Delaware failed to revise the NSR regulations to adopt all of the
provisions relating to modifications in serious and severe ozone
nonattainment areas, required by the 1990 Clean Air Act Amendments. In
addition Delaware must make additional revisions to satisfy conditions
related to emission offsets and public participation as required by
federal regulations. Delaware has submitted a written commitment to
satisfy the conditions of this final rule and to revise the SIP within
one year of this rulemaking.
EFFECTIVE DATE: This final rule is effective on May 4, 1998.
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,
841 Chestnut Building, Philadelphia, Pennsylvania 19107; the Air and
Radiation Docket and Information Center, U.S. Environmental Protection
Agency, 401 M Street, SW, Washington, DC 20460; and Delaware Department
of Natural Resources & Environmental Control, 89 Kings Highway, P.O.
Box 1401, Dover, Delaware 19903.
FOR FURTHER INFORMATION CONTACT: Linda Miller, (215) 566-2068.
SUPPLEMENTARY INFORMATION:
I. Background
On January 12, 1998 (63 F.R. 1804 ), EPA published a notice of
proposed rulemaking (NPR) for the State of Delaware. The NPR proposed
conditional approval of Delaware New Source Review requirements,
Delaware Regulation 25, Sections 1 and 2.
The formal SIP Revision was submitted on January 11, 1993. The
State has committed by letter dated February 10, 1998 to amend the SIP
to correct the following deficiencies within one year of publication of
this rulemaking by adding the following:
1. The special rule for modifications of sources in serious and
severe ozone nonattainment areas, consistent with Sections 182(c)(7)
and (8) of the Clean Air Act.
2. Public participation procedures consistent with 40 CFR 51.161.
Regulation No. 25 does not specify the public participation procedures
to be used in issuing nonattainment NSR permits.
3. A requirement that where the emissions limit under the SIP
allows greater emissions than the potential to emit of the source,
emission offset credit will be allowed only for control below this
potential as found in 40 CFR 51.165(a)(3)(ii)(A).
4. Provisions for granting emission offset credit for fuel
switching, consistent with 40 CFR 51.165(a)(3)(ii)(B).
5. Requirements consistent with 40 CFR 51.165(a)(3)(ii)(C)(1) for
the crediting of emission reductions achieved by shutting down an
existing source or curtailing production or operating hours below
baseline levels (shutdown credits). These requirements must include a
provision that such reductions may be credited if they are permanent,
quantifiable and federally-enforceable, and if the area has an EPA-
approved attainment plan.
6. A requirement that the shutdown or curtailment is creditable
only if it occurred after the date of the most recent emissions
inventory or attainment demonstration consistent with 40 CFR
51.165(a)(3)(ii)(C)(1).
7. A requirement that all emission reductions claimed as offset
credit shall be federally enforceable consistent with 40 CFR
51.165(a)(3)(ii)(E).
[[Page 16434]]
8. Requirements for the permissible location of offsetting
emissions consistent with 40 CFR 51.165(a)(3)(ii)(F) and section
173(c)(1) of the CAA.
9. A requirement that credit for an emission reduction can be
claimed to the extent that the State has not relied on it in issuing
any permit under regulations approved pursuant to 40 CFR part 51 (i.e.,
the SIP), or the State has not relied on it in a demonstration of
attainment or reasonable further progress.
A discussion of the deficiencies in the Delaware New Source
regulations and other specific requirements of the New Source Review
program as well as the rationale for EPA's proposed action are
explained in the NPR and will not be restated here. No public comments
were received on the NPR.
II. Final Action
EPA is conditionally approving the New Source Review program,
Regulation 25, as a revision to the Delaware SIP. If the State does not
submit revisions to the SIP address all the deficiencies which are
conditions of this approval within one year of this rulemaking, the
rulemaking will convert to a final disapproval. EPA would notify
Delaware by letter that the conditions have not been met and that the
conditional approval of the NSR SIP have converted to a disapproval.
The approval is contingent on the State of Delaware revising its
regulations to address the deficiencies noted above and explained in
detail in the Technical Support Document, (TSD) that was prepared in
support of the proposed conditional approval rulemaking for Delaware's
NSR program. A copy of the TSD is available from the Regional Office
listed in the ADDRESSES section of this document.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
III. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
Conditional approvals of SIP submittals under section 110 and
subchapter I, part D of the CAA 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, I certify 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 CAA, 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.
C. 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
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 being promulgated does
not include a Federal mandate that may result in estimated 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 additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
D. Submission to Congress and the General Accounting Office
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).
E. 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 June 2, 1998. 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).)
The Regional Administrator's decision to conditionally approve this
SIP revision regarding Delaware's NSR program is based on the
requirements found in section 110(a)(2)(a)-(K) and part D of the Clean
Air Act, as amended, and EPA regulations in 40 CFR Part 51.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, New Source Review, Nitrogen dioxide, Ozone, Volatile organic
compounds.
[[Page 16435]]
Dated: March 24, 1998.
Thomas Maslany,
Acting Regional Administrator, Region III.
Chapter I, title 40, of the Code of Federal Regulations 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. Section 52.424 is amended by adding paragraph (c) to read as
follows:
Sec. 52.424 Conditional approval.
* * * * *
(c) EPA is conditionally approving as a revision to the State
Implementation Plan the New Source Review (NSR) program submitted by
the Secretary of the Delaware Department of Natural Resources and
Environmental Control on January 11, 1993. Delaware must provide a SIP
revision which corrects the deficiencies in the NSR Regulation
(Regulation No. 25) by April 5, 1999. Once Delaware satisfies the
conditions of the NSR rulemaking, EPA will fully approve the NSR
program. If a revised SIP meeting the conditions of the NSR rulemaking
is not submitted by the date specified, the rulemaking will convert to
a final disapproval. The approval is contingent on the State of
Delaware revising its regulations to address the deficiencies noted in
the Technical Support Document, (TSD) that was prepared in support of
the proposed conditional approval rulemaking for Delaware's NSR
program. Delaware must submit a SIP revision that includes the
following:
(1) The special rule for modifications of sources in serious and
severe ozone nonattainment areas, consistent with Sections 182(c)(7)
and (8) of the Clean Air Act.
(2) Public participation procedures consistent with 40 CFR 51.161.
Regulation No. 25 does not specify the public participation procedures
to be used in issuing nonattainment NSR permits.
(3) A requirement that where the emissions limit under the SIP
allows greater emissions than the potential to emit of the source,
emission offset credit will be allowed only for control below this
potential as found in 40 CFR 51.165(a)(3)(ii)(A).
(4) Provisions for granting emission offset credit for fuel
switching, consistent with 40 CFR 51.165(a)(3)(ii)(B).
(5) Requirements consistent with 40 CFR 51.165(a)(3)(ii)(C)(1) for
the crediting of emission reductions achieved by shutting down an
existing source or curtailing production or operating hours below
baseline levels (shutdown credits). These requirements must include a
provision that such reductions may be credited if they are permanent,
quantifiable and federally-enforceable, and if the area has an EPA-
approved attainment plan.
(6) A requirement that the shutdown or curtailment is creditable
only if it occurred after the date of the most recent emissions
inventory or attainment demonstration consistent with 40 CFR
51.165(a)(3)(ii)(C)(1).
(7) A requirement that all emission reductions claimed as offset
credit shall be federally enforceable consistent with 40 CFR
51.165(a)(3)(ii)(E).
(8) Requirements for the permissible location of offsetting
emissions consistent with 40 CFR 51.165(a)(3)(ii)(F) and section
173(c)(1) of the CAA.
(9) A requirement that credit for an emission reduction can be
claimed to the extent that the State has not relied on it in issuing
any permit under regulations approved pursuant to 40 CFR part 51 (i.e.,
the SIP), or the State has not relied on it in a demonstration of
attainment or reasonable further progress.
[FR Doc. 98-8793 Filed 4-2-98; 8:45 am]
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