[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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