Approval and Promulgation of Air Quality Implementation Plans; Delaware; Administrative and Non-Substantive Amendments to Existing Delaware SIP Regulations

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve revisions to the Delaware State Implementation Plan (SIP). The revisions streamline, renumber and reformat the Delaware Regulations for the Control of Air Pollution which EPA has approved as part of the Delaware SIP. This SIP vision is administrative in nature; there are no substantive changes. EPA is approving these revisions to Delaware SIP regulations in accordance with the requirements of the Clean Air Act (CAA).

DATES:

This rule is effective on October 12, 2010 without further notice, unless EPA receives adverse written comment by September 10, 2010. 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-2009-0606 by one of the following methods:

A. http://www.regulations.gov . Follow the on-line instructions for submitting comments.

B. E-mail: frankford.harold@epa.gov.

C. Mail: EPA-R03-OAR-2009-0606, Harold A. Frankford, Air Protection Division, Mailcode 3AP00, 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-2009-0606. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at http://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 http://www.regulations.gov or e-mail. The http://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 e-mail comment directly to EPA without going through http://www.regulations.gov,, your e-mail 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 http://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 http://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:

Harold A. Frankford, (215) 814-2108, or by e-mail at frankford.harold@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

On June 15, 2009, the State of Delaware submitted a formal revision to its State Implementation Plan (SIP). The SIP revision consists of administrative and non-substantive amendments to 32 of the SIP approved Delaware air pollution control regulations. In its SIP revision submittal, Delaware explains that under Title 29, Chapter 101 of the Delaware Codes (29 Del. C., Ch 101), regulatory agencies in Delaware are required to develop and adopt regulations, and publish the regulations in Delaware Register of Regulations. The State Registrar's Office under Division of Research of the General Assembly has developed guidelines and drafting manuals for Delaware regulations. Delaware issued the latest edition of drafting and style manual, entitled “Delaware Manual for Drafting Regulations” in March 2006 (“the 2006 Manual”). Since then, EPA has approved several Delaware SIP regulations in the manual-compliant format. However, a majority of the Delaware SIP regulations have not been updated.

II. Summary of SIP Revision

The purpose of this SIP revision is to revise all Delaware SIP regulations so that they are consistent with the format prescribed in the 2006 Manual. In addition, Delaware has made some non-substantive changes and corrections of errors exclusively for this SIP revision:

• Administrative or editorial changes made under the administrative authority granted to Delaware Registrar's Office by 29 Del. C., Ch 1134 and applicable to all Delaware regulations for consistency purposes. Therefore, all Delaware air regulations, both existing ones and future ones, shall follow this format.
• Non-substantive changes made for clarification and consistency purposes and which do not alter or amend the intent or meaning of the subject regulation.
• Editorial changes, including correction of errors due to typos or misprints when a regulation was developed or revised to its current version.

A. SIP Regulations Revised in This SIP Revision

The 32 regulations which Delaware has submitted administrative changes to EPA in this SIP revision are:

• Regulation 1 “Definitions and Administrative Principles”;
• Regulation 1102* “Permits”;
• Regulation 3 “Ambient Air Quality Standards”;
• Regulation 4 “Particulate Emissions From Fuel Burning Equipment”;
• Regulation 5 “Particulate Emissions From Industrial Process Operations”;
• Regulation 6 “Particulate Emissions From Construction and Materials Handling”;
• Regulation 7 “Particulate Emissions From Incineration”;
• Regulation 8 “Sulfur Dioxide Emissions From Fuel Burning Equipment”;
• Regulation 9 “Emissions of Sulfur Compounds From Industrial Operations”;
• Regulation 10 “Control of Sulfur Dioxide Emissions—Kent and Sussex Counties”;
• Regulation 11 “Carbon Monoxide Emissions From Industrial Process Operations New Castle County”;
• Regulation 12 “Control of Nitrogen Oxide Emissions”;
• Regulation 1113* “Open Burning”;
• Regulation 14 “Visible Emissions”;
• Regulation 15 “Air Pollution Alert and Emergency Plan”;
• Regulation 16 “Sources Having an Interstate Air Pollution Potential”;
• Regulation 17 “Source Monitoring, Recordkeeping and Reporting”;
• Regulation 23 “Standards of Performance for Steel Plants: Electric Arc Furnaces”;
• Regulation 1124* “Control of Volatile Organic Compound Emissions”;
• Regulation 1125* “Requirements for Preconstruction Review” (Sections 1, 2 and 3);
• Regulation 26 “Motor Vehicle Emissions Inspection Program”
• Regulation 27 “Stack Heights”;
• Regulation 1132* “Transportation Conformity”;
• Regulation 35 “Conformity of General Federal Actions to the State Implementation Plans”;
• Regulation 39 “Nitrogen Oxides (NO_X) Budget Trading Program”;
• Regulation 40 “Delaware's National Low Emission Vehicle (NLEV) Regulation”;
• Regulation 1141* “Limiting Emissions of Volatile Organic Compounds From Consumer and Commercial Products”;
• Regulation 1142* “Specific Emission Control Requirements (Section 1)”;
• Regulation 1144* “Control of Stationary Generator Emissions”;
• Regulation 1145* “Excessive Idling of Heavy Duty Vehicles”;
• Regulation 1146* “Electric Generating Unit (EGU) Multi-Pollutant Regulation”;
• Regulation 1148* “Control of Stationary Combustion Turbine Electric Generating Unit Emissions”.

The regulations marked with an asterisk (*) are SIP regulations (or a section or sections therein) which Delaware has revised after the issuance of the 2006 drafting manual.

B. SIP Regulations Not Affected by This Revision

Delaware has not submitted the following SIP regulations or sections in this SIP revision:

• Regulation 31 “Low Enhanced Inspection and Maintenance Program”;
• Regulation 37 “NO_X Budget Program”;

Delaware did not include Regulation 31 because it is currently under substantive revision, and did not include Regulation 37 because it is no longer State enforceable. In addition, on June 10, 2010, Delaware withdrew the following regulations from this SIP submittal, as they are not currently part of the Delaware SIP: Regulation 1101, Section 2.0—those definitions not associated with SIP-approved regulations; Regulation 1103, Sections 7.0 and 9.0; Regulation 7, Section 2.0; Regulation 9, Section 2.2; and all regulatory provisions in Regulation 1146 governing the control of mercury emissions.

C. Summary of Administrative Changes

The following paragraphs summarize the global administrative amendments to Delaware's regulations that are part of this SIP revision:

1. Font Face and Size—All State regulations are converted to a standard font size. Such change does not alter any meaning of the subject regulations in any aspect.

2. Regulation Title Coding and Numbering—All revised regulations use a bold-face text for their titles.

3. Format of Definitions—All defined terms are highlighted in bold type, with the expression “means the” inserted at the beginning of each definition.

4. Section and Subsection Numbering—Two changes are made with respect to sections in a regulation under this SIP revision: (1) All prefixes of “Section-” in section title lines are deleted; (2) Sections are numbered using a consistent format of Arabic numeral “#.0”.

A majority of the current SIP regulations have subsections of various levels, and use different symbols for subsections, such as lower-case letters (a, b, * * * ), Roman numbers (i, ii, * * *), Arabic numbers in parenthesis [(1), (2), * * *], upper-case letters (A, B, * * *), and paired lower-case letters (aa, bb, * * *). All those subsection symbols in the current Delaware Air Quality Management (AQM) regulations are replaced by Arabic numbers under this SIP revision.

5. Citations in Regulations—All Delaware AQM regulations are to be cited as Delaware Administration Code by title and regulation number. Therefore, citations of another regulation are revised to a standard format.

6. Other Changes—The following changes are also made to the State AQM regulations submitted under this SIP revision, with strikeouts representing deletions and underlines for additions:

a. Changing “and/or” to “or”.

b. Changing “word(s)” to “word or words”.

c. Spelling out numbers from 1 to 9, except those followed by specifying symbols such as %, °C, °F, and those used for special terms such as “the 1-hour ozone standard.” However, numerals between 1.0 and 9.0 are not spelled out, due to the precision meaning held by the decimal place.

d. Using Arabic numbers for 10 and greater, except when used at the beginning of a sentence.

e. Changing word “percent” following a numeral to “%”.

f. Changing “deg C and deg F” to “°C and °F”, respectively.

g. Changing dates in the text, for example, from “12/02/94” to “December 2, 1994.”

D. Non-Substantive Changes

1. Addition and Deletion of Words

a. Additions—In the current AQM regulations, sections and subsections may be referenced frequently in the regulation itself. In addition, the Federal Clean Air Act (the Act) may be cited frequently as well. To ensure precise citations and references, the terms “of (or in) this regulation” and “of (or in) the Act” are added wherever they seem necessary and adequate.

b. Deletions—In the current AQM regulations, terms such “section, subsection, part, subpart, paragraph, and subparagraph” are used extensively, but not consistently and properly. Under this SIP revision, the terms “section, subsection, part, subpart, paragraph, and subparagraph” are no longer used in front of section or subsection numbers.

c. Deleting Specific Section and Subsection Numbers—There are cases in the current AQM regulations where there is only one subsection in a section. This single subsection is no longer numbered.

2. Changing Italic Font Style to Regular Style

The italic font is no longer used in Delaware's regulations.

3. Renumbering Tables and Equations

A standard format of “X-Y” is adopted for all tables and equations, with X denoting a section and Y denoting table or equation order in that section.

4. Dates Associated With Section Titles

Historically, all Delaware AQM regulations have placed a date immediately in front of or after a section title, indicating the date when the subject section was adopted in its latest version. Under this SIP revision, these dates are formatted as “mm/dd/yyyy.”

5. Appendices

a. Numbering Appendices—All appendices in Regulation 24 are renumbered with un-quoted capital letters under this SIP revision, without strikeouts and underlines. In addition, all appendices of AQM regulations are identified using bold-face (i.e., Appendix) to distinguish them from appendixes of other documents cited in the SIP regulations.

b. Footnotes in Appendices—According to Delaware's 2006 Manual, footnotes should be presented at the end of a regulation. For appendices, however, footnotes are placed at the end of each appendix under this SIP revision. For example, footnotes used in an appendix of Regulation 24 are presented at the end of the subject appendix, instead of at the far end of the entire regulation.

c. References in Appendices—Under this SIP revision, references in an appendix are no longer denoted by superscripts. Instead, a directing text in parenthesis “(see # of this appendix)” is used, where “#” is the order number of the reference listed at the end of the appendix.

6. Other Changes

Other non-substantive changes are made, mainly for consistency and clarification purposes.

E. Correction of Typographical and Global Errors

Examples of global errors include:

• Correcting “cm3” to “cm³”;
• Correcting “the 31st” to “the 31^st”.

III. Final Action

EPA is approving the described administrative and non-substantive amendments to the SIP approved Delaware air pollution control regulations as a revision of the Delaware SIP. As a result of this approval action, the format of Federally enforceable SIP regulations will be consistent with the format of the current Delaware AQM regulations. EPA's approval action does not revise the following sections of Regulations 1113, 1132, 1141, 1144, 1146, and 1148, as previous EPA SIP approvals had already incorporated these administrative and non-substantive changes:

• Regulation 1113, Sections 1.0, 2.0, 5.0 and 7.0.
• Regulation 1132, Section 1.0.
• Regulation 1141, Section 2.0.
• Regulation 1144, Sections 3.0, 8.0, and 9.0.
• Regulation 1146, Section 2.0, and Table 5-1.
• Regulation 1148, Sections 1.0 and 6.0.

Prior to Delaware's June 15, 2009 SIP revision submittal, Delaware submitted substantive amendments to Regulation 1102, Appendix A. EPA's action on that SIP revision is still pending. EPA will address the State's administrative revisions associated with these amendments concurrently with our review of the substantive amendments.

EPA is publishing this rule without prior proposal because the Agency 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 October 12, 2010 without further notice unless EPA receives adverse comment by September 10, 2010. 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. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

IV. Statutory and Executive Order Reviews

A. General Requirements

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act 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 Clean Air Act. 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 Clean Air Act; 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 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 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 October 12, 2010. 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action pertaining to administrative and non-substantive changes to Delaware's existing SIP-approved regulations 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
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority for citation for part 52 continues to read as follows:

Authority: 42.U.S.C. 7401 et seq.

Subpart I—Delaware

2. In § 52.420, the table in paragraph (c) is revised to read as follows: