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Approval and Promulgation of Air Quality Implementation Plans; Delaware; Ambient Air Quality Standard for Ozone and Fine Particulate Matter

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Information about this document as published in the Federal Register.

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Environmental Protection Agency (EPA).


Final rule.


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).


This final rule is effective on December 1, 2005.


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​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.

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

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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 Start Printed Page 65848regulations 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).)

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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
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Dated: October 21, 2005.

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 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:

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Identification of plan.

(c) EPA approved regulations. Start Printed Page 65849

EPA-Approved Regulations in the Delaware SIP

State citationTitle/subjectState effective dateEPA approval dateAdditional explanation
Regulation 1 Definitions and Administrative Principles
*         *         *         *         *         *         *
Section 2Definitions02/11/200311/1/2005 [Insert page number where the document begins]Added definition of PM2.5.
*         *         *         *         *         *         *
Regulation 3 Ambient Air Quality Standards
Section 1General Provisions02/11/200311/1/2005 [Insert page number where the document begins]Addition of section 1.6.j.
*         *         *         *         *         *         *
Section 6Ozone02/11/200311/1/2005 [Insert page number where the document begins]Addition to section 6.1—“This standard shall be applicable to New Castle and Kent Counties.” Addition of section 6.2.
*         *         *         *         *         *         *
Section 11PM10 and PM2.5 Particulates02/11/200311/1/2005 [Insert page number where the document begins]Section title added “and PM2.5.” Addition of sections 11.2.a. and 11.2.b.
*         *         *         *         *         *         *
* * * * *
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[FR Doc. 05-21751 Filed 10-31-05; 8:45 am]