[Federal Register Volume 70, Number 210 (Tuesday, November 1, 2005)]
[Rules and Regulations]
[Pages 65847-65849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21751]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R03-OAR-2005-DE-0001; FRL-7992-3]
Approval and Promulgation of Air Quality Implementation Plans;
Delaware; Ambient Air Quality Standard for Ozone and Fine Particulate
Matter
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to approve revisions to the
Delaware State Implementation Plan (SIP). The revisions were submitted
by the Delaware Department of Natural Resources and Environmental
Control (DNREC) and consist of modifications to the ambient air quality
standards for ozone and fine particulate matter. EPA is approving these
revisions in the SIP in accordance with the Clean Air Act (CAA).
DATES: This final rule is effective on December 1, 2005.
ADDRESSES: EPA has established a docket for this action under Regional
Material in EDocket (RME) ID Number R03-OAR-2005-DE-0001. All documents
in the docket are listed in the RME index at http://docket.epa.gov/rmepub/. Once in the system, select ``quick search,'' then key in the
appropriate RME identification number. Although listed in the
electronic docket, some information is not publicly available, i.e.,
confidential business information (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 RME or in hard copy
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. 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: Rose Quinto, (215) 814-2182, or by e-
mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On April 1, 2003, DNREC submitted a formal SIP revision that
consists of an amendment that included the revised ambient air quality
standards for ozone and particulate matter. On July 18, 2005 (70 FR
41146), EPA published a direct final rule (DFR) approving revisions to
the Delaware's SIP. An explanation of the CAA's requirements as they
apply to Delaware and EPA's rationale for approving these SIP revisions
were provided in the DFR and will not be restated here. In accordance
with direct final rulemaking procedures, on July 18, 2005 (70 FR
41166), EPA also published a companion notice of proposed rulemaking
(NPR) on these SIP revisions inviting interested parties to comment on
the DFR. Timely adverse comments were submitted on EPA's July 18, 2005
DFR.
On September 16, 2005 (70 FR 54639), due to receipt of the adverse
comments submitted in response to the DFR, EPA published a withdrawal
of the DFR. A summary of those comments and EPA's responses are
provided in Section II of this document.
II. Summary of Public Comments and EPA Responses
Comment: On July 18, 2005, a citizen submitted adverse comments on
EPA's DFR notice approving Delaware's ambient air quality standards for
ozone and fine particulate matter. The commenter states that the
regulations are not strict enough and that they leave too much latitude
for polluters to poison and kill us. The commenter also states that the
fines and penalties for polluters should be increased by one thousand
percent.
Response: The rulemaking at issue is limited in scope and addresses
the 1997 Federal 8-hour ozone and PM2.5 standards that Delaware
incorporates into Section 6 of Regulation 3 of the Delaware Regulations
Governing the Control of Air Pollution. The commenter did not submit
any supporting technical data or information to support that the
regulations are not strict enough. Rather the commenter makes broad
statements alleging (1) that the regulations should be more stringent
than those required under the Act, and (2) that the fines and penalties
for polluters should be increased one thousand percent. These comments
are not ``significant comments'' to which EPA needs to respond. Whitman
v. American Trucking Ass'n., 531 U.S. 457, n.2 at 471 (2001) (Under the
CAA, EPA need only respond to significant comments, i.e., comments
relevant to EPA's decision). Mere ``assertions that in the opinions of
the commenter the Agency got it wrong,'' are not relevant comments
warranting a response. International Fabricare Inst. v. EPA, 972 F.2d
384, 391 (D.C. Cir. 1992). As to the comment that the rules should be
more stringent than required under the Act, EPA has no authority to
mandate that a State regulate more stringently than required. Under the
CAA's bifurcated scheme, the State is responsible for choosing how air
pollution sources must be regulated for purposes of attaining the
national ambient air quality standards (NAAQS) and EPA's role is
limited in reviewing the State's choice to ensure it meets the minimum
statutory requirements. Here, as is clear from the commenter's first
comment, the commenter is not claiming that the
[[Page 65848]]
regulations do not meet the statutory minimum, but rather that the
statute does not require enough. EPA has no authority to modify the
statute, as requested by the commenter nor does EPA have authority to
require the State to regulate more stringently than required by the
statute. The CAA is based upon ``cooperative federalism,'' which
contemplates that each State will develop its own SIP, and that States
retain a large degree of flexibility in choosing which sources to
control and to what degree. EPA must approve a State's plan if it meets
the ``minimum requirements of the CAA.'' Union Elec. Co. v. EPA, 427
U.S. 246, 264-266 (1976).
As to the commenter's second point, this rulemaking does not
address fines and penalties for polluters and, therefore, is not
relevant to this rulemaking.
III. Final Action
EPA is approving the revisions to the Delaware SIP submitted by
DNREC on April 1, 2003 to incorporate the 8-hour ambient air quality
standards for ozone and fine particulate matter. Delaware's SIP
revisions for the ambient air quality standards for ozone and fine
particulate matter are consistent with the 8-hour Federal NAAQS.
IV. 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
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 January 3, 2006. 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 approving the Delaware's 8-hour ambient air
quality standards for ozone and fine particulate matter 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, Nitrogen dioxide,
Ozone, Particulate matter, Reporting and recordkeeping requirements,
Volatile organic compounds.
Dated: October 21, 2005.
Donald S. Welsh,
Regional Administrator, Region III.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
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1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart I--Delaware
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2. In Section 52.420, the table in paragraph (c) is amended by adding
an entry for Regulation 1, Section 2 after the existing entry, and
revising the entries for Regulation 3, Sections 1, 6, and 11 to read as
follows:
Sec. 52.420 Identification of plan.
(c) EPA approved regulations.
[[Page 65849]]
EPA-Approved Regulations in the Delaware SIP
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State Additional
State citation Title/subject effective date EPA approval date explanation
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Regulation 1 Definitions and Administrative Principles
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* * * * * * *
Section 2...................... Definitions............ 02/11/2003 11/1/2005 [Insert Added definition
page number where of PM2.5.
the document
begins].
* * * * * * *
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Regulation 3 Ambient Air Quality Standards
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Section 1...................... General Provisions..... 02/11/2003 11/1/2005 [Insert Addition of
page number where section 1.6.j.
the document
begins].
* * * * * * *
Section 6...................... Ozone.................. 02/11/2003 11/1/2005 [Insert Addition to
page number where section 6.1--
the document ``This standard
begins]. shall be
applicable to New
Castle and Kent
Counties.''
Addition of
section 6.2.
* * * * * * *
Section 11..................... PM10 and PM2.5 02/11/2003 11/1/2005 [Insert Section title
Particulates. page number where added ``and
the document PM2.5.''
begins]. Addition of
sections 11.2.a.
and 11.2.b.
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* * * * * * *
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[FR Doc. 05-21751 Filed 10-31-05; 8:45 am]
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