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Approval and Promulgation of Air Quality Implementation Plans; Six Control Measures to Meet EPA-Identified Shortfalls in Delaware's One-Hour Ozone Attainment Demonstration

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Environmental Protection Agency (EPA).


Final rule.


EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Delaware. This revision consists of six control measures to meet EPA-identified shortfalls in Delaware's one-hour ozone attainment demonstration. The intended effect of this action is to approve the six control measures.


This final rule is effective on December 23, 2002.


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, 1650 Arch Street, Philadelphia, Pennsylvania 19103; and Delaware Department of Natural Resources & Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware 19903.

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Rose Quinto, (215) 814-2182, or by e-mail at

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I. Background

On September 12, 2002 (67 FR 5776), EPA published a notice of proposed rulemaking (NPR) for the State of Delaware. The NPR proposed approval of the Delaware SIP revision for six control measures based on the model rules developed by the Ozone Transport Commission (OTC), to meet EPA-identified attainment shortfalls for the Philadelphia-Wilmington-Trenton nonattainment area and 19 counties within 100 kilometers of the nonattainment area. The six control measures are: (1) Control of volatile organic compound (VOC) emissions from mobile equipment repair and refinishing; (2) control of VOC emissions from solvent cleaning and drying; (3) control of VOC emissions from Architectural and Industrial Maintenance (AIM) coatings; (4) control of VOC emissions from consumer products; (5) control of VOC emissions from portable fuel containers; and (6) Start Printed Page 70316control of nitrogen oxides (NOX) emissions from industrial boilers. Other specific requirements of the six control measures and 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 approving the six control measures submitted on March 1, 2002, as revisions to the Delaware SIP.

III. Administrative Requirements

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 (Public Law 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 21, 2003. 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 pertaining to six control measures to meet EPA-identified shortfalls in Delaware's one-hour ozone attainment demonstration, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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List of Subjects in 40 CFR Part 52

  • Environmental protection
  • Air pollution control
  • Intergovernmental relations
  • Nitrogen dioxide
  • Ozone
  • Reporting and recordkeeping requirements
  • Volatile organic compounds
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Dated: November 14, 2002.

Donald S. Welsh,

Regional Administrator, Region III.

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40 CFR part 52 is amended as follows:

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

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

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Subpart I—Delaware

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2. In Section 52.420, the table in paragraph (c) is amended:

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a. Under Regulation 24 by revising the entries for Section 11 and Section 33.

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b. By adding a new Regulation 41, including headings, with entries for Section 1, Section 2 and Section 3.

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c. By adding a new Regulation 42, including headings, with an entry for Section 1.

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The revisions and additions read as follows:

Identification of plan.
* * * * *

(c) * * *

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EPA-Approved Regulations in the Delaware SIP

State citationTitle/subjectState effective dateEPA approval dateAdditional explanation
*         *         *         *         *         *         *         
*         *         *         *         *         *         *         
Section 11Mobile Equipment Repair and Refinishing11/11/01November 22, 2002, Federal Register page citation
*         *         *         *         *         *         *         
Section 33Solvent Cleaning and Drying11/11/01November 22, 2002, Federal Register page citation
*         *         *         *         *         *         *         
Section 1Architectural and Industrial Maintenance (AIM) Coatings3/11/02November 22, 2002, Federal Register page citation
Section 2Commercial Products1/11/02November 22, 2002, Federal Register page citation
Section 3Portable Fuel Containers11/11/01November 22, 2002, Federal Register page citation
Section 1Control of Nitrogen Oxides (NOX) Emissions from Industrial Boilers12/11/01November 22, 2002, Federal Register page citation
* * * * *
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[FR Doc. 02-29605 Filed 11-21-02; 8:45 am]