Approval and Promulgation of Air Quality Implementation Plans; Delaware; Update to Materials Incorporated by Reference

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule; Notice of administrative change.

SUMMARY:

EPA is updating the materials submitted by Delaware that are incorporated by reference (IBR) into the State implementation plan (SIP). The regulations affected by this update have been previously submitted by the State agency and approved by EPA. This update affects the SIP materials that are available for public inspection at the Office of the Federal Register (OFR), the Air and Radiation Docket and Information Center located at EPA Headquarters in Washington, DC and the Regional Office.

EFFECTIVE DATE:

This action is effective June 21, 2004.

ADDRESSES:

SIP materials which are incorporated by reference into 40 CFR part 52 are available for inspection at the following locations: Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; the Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, 1301 Constitution Avenue NW., Room B108, Washington, DC 20460; and the Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

The SIP is a living document which the State can revise as necessary to address the unique air pollution problems in the State. From time to time, therefore, EPA must take action on SIP revisions containing new and/or revised regulations as being part of the SIP. On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference federally-approved SIPs, as a result of consultations between EPA and OFR. The description of the revised SIP document, IBR procedures and “Identification of plan” format are discussed in further detail in the May 22, 1997, Federal Register document. On December 7, 1998 (63 FR 67407), EPA published a document in the Federal Register beginning the new IBR procedure for Delaware. In this action, EPA is doing the following:

1. Announcing the first update to the IBR material.

2. Adding § 52.420(e) which summarizes the non-regulatory actions that EPA has taken on the Delaware SIP.

3. Making corrections to the charts listed in § 52.420(c), as described below:

a. Regulation 1 (Definitions and Administrative Principles), Section 2—Definitions (second entry)—The entry in the “EPA Approval Date” column is revised by adding the Federal Register page citation ( 64 FR 48961) after the publication date (9/9/99).

b. Regulation 4 (Particulate Emissions from Fuel Burning Equipment), Section 1 (General Provisions) and Section 2 (Emission Limits)—The entries in the “EPA Approval Date” column are revised by adding the publication date (3/23/76) after the Federal Register page citation ( 41 FR 12010).

c. Regulation 5 (Particulate Emissions from Industrial Process Operations), Section 5 (Restrictions on Petroleum Refining Operations)—The text in the “Comments” column is removed.

d. Regulation 9 (Emissions of Sulfur Compounds from Industrial Operations) Section 2 (Restrictions on Sulfuric Acid Manufacturing Operations)—The text in the “Comments” column is revised.

e. Regulation 11 (Carbon Monoxide Emissions from Industrial Process Operations—New Castle County)—The text in the “Comments” column (“Citation revised 3/23/76, 41 FR 12010”) is moved from the Section 1 entry (General Provisions) to the Section 2 entry (Restrictions on Petroleum Refining Operations).

f. Regulation 17 (Source Monitoring, Recordkeeping and Reporting)—The existing text in the “Comments” column is removed and replaced with the following text: “Former SIP Sections 1 through 5 respectively; citation revised 2/28/96, 62 FR 7453.”

g. Regulation 17, Section 4 (Performance Specifications) and Section 6 (Data Reduction)—The entry in the “EPA Approval Date” column is revised by adding the Federal Register page citation ( 64 FR 48961) after the publication date (9/9/99).

h. Regulation 24 (Control of Volatile Organic Compound Emissions), Section 2 (Definitions)—The text in the “Comments” column is removed.

i. Regulation 31 (Low Enhanced Inspection and Maintenance Program), Sections 4, 10, 11, 12, and Appendices 1(d), 3(a)(7), 3(c)(2), 4(a), 5(a), 6(a)(5), 7(a) and 8(a)—The entry in the “EPA Approval Date” column is revised by adding the Federal Register page citation ( 64 FR 52657) after the publication date (9/30/99).

j. Regulation 39 (Nitrogen Oxides (NO_X) Budget Trading Program)—The text in the “Comments” column is removed. The Federal Register publication date and citation (5/17/01, 66 FR 27462) are added in the “EPA approval date” column to each entry, beginning with Section 2, listed under Regulation 39.

k. Regulation 40 (National Low Emission Vehicle Program)—EPA approved this regulation as a revision to the Delaware SIP on December 28, 1999 (64 FR 72564), and therefore added an entry to the table in § 52.420(c) to read as follows:

4. In the tables found in §§ 52.420(c) and 52.420(d), renaming the column heading entitled “Comments” to “Additional Explanation.”

EPA has determined that today's rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation; and section 553(d)(3) which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). Today's rule simply codifies provisions which are already in effect as a matter of law in Federal and approved state programs. Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Immediate notice in the CFR benefits the public by removing outdated citations.

Statutory and Executive Order Reviews

A. General Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it 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). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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 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).

C. Petitions for Judicial Review

EPA has also determined that the provisions of section 307(b)(1) of the Clean Air Act pertaining to petitions for judicial review are not applicable to this action. Prior EPA rulemaking actions for each individual component of the Delaware SIP compilations had previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, EPA sees no need in this action to reopen the 60-day period for filing such petitions for judicial review for these “Identification of plan” reorganization update actions for Delaware.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Lead
• 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. Section 52.420 is amended by revising paragraphs (b), (c), and (d), and adding paragraph (e) to read as follows: