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

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Environmental Protection Agency (EPA).


Final rule; administrative change.


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 Delaware Department of Natural Resources and Environmental Control (DNREC) and approved by EPA. This update affects the SIP materials that are available for public inspection at the National Archives and Records Administration (NARA), the Air and Radiation Docket and Information Center located at EPA Headquarters in Washington, DC, and the EPA Regional Office.


Effective Date: This action is effective May 2, 2011.


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 Number 3334, EPA Start Printed Page 24373West Building, Washington, DC 20460; or the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:​federal_​register/​code_​of_​federal_​regulations/​ibr_​locations.html.

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Harold A. Frankford, (215) 814-2108 or by e-mail at

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I. Background

The SIP is a living document which the State revises as necessary to address its unique air pollution problems. Therefore, EPA from time to time 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 the Office of the Federal Register (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. On June 21, 2004 (69 FR 34285), April 3, 2007 (72 FR 15839), and April 17, 2009 (73 FR 17771), EPA published updates to the IBR material for Delaware.

Since the publication of the last IBR update, EPA has approved the following regulatory changes to all sections of the following Delaware regulations, except as specifically noted:

1. Regulation 1101 “Definitions and Administrative Principles” (SIP definitions only).

2. Regulation 1102 “Permits” (except Appendix A, paragraphs 32.0 and 33.0).

3. Regulation 1103 “Ambient Air Quality Standards.”

4. Regulation 1104 “Particulate Emissions From Fuel Burning Equipment.”

5. Regulation 1105 “Particulate Emissions From Industrial Process Operations.”

6. Regulation 1106 “Particulate Emissions From Construction and Materials Handling.”

7. Regulation 1107 “Particulate Emissions From Incineration” (section 1.0).

8. Regulation 1108 “Sulfur Dioxide Emissions From Fuel Burning Equipment.”

9. Regulation 1109 “Emissions of Sulfur Compounds From Industrial Operations” (except section 2.2).

10. Regulation 1110 “Control of Sulfur Dioxide Emissions—Kent and Sussex Counties.”

11. Regulation 1111 “Carbon Monoxide Emissions From Industrial Process Operations New Castle County.”

12. Regulation 1112 “Control of Nitrogen Oxide Emissions.”

13. Regulation 1113 “Open Burning” (except sections 1.0, 2.0, and 7.0).

14. Regulation 1114 “Visible Emissions.”

15. Regulation 1115 “Air Pollution Alert and Emergency Plan.”

16. Regulation 1116 “Sources Having an Interstate Air Pollution Potential.”

17. Regulation 1117 “Source Monitoring, Recordkeeping and Reporting.”

18. Regulation 1123 “Standards of Performance for Steel Plants: Electric Arc Furnaces.”

19. Regulation 1124 “Control of Volatile Organic Compound Emissions.”

20. Regulation 1125 “Requirements for Preconstruction Review” (sections 1.0, 2.0, and 3.0).

21. Regulation 1126 “Motor Vehicle Emissions Inspection Program.”

22. Regulation 1127 “Stack Heights.”

23. Regulation 1132 “Transportation Conformity” (except section 1.0).

24. Regulation 1135 “Conformity of General Federal Actions to the State Implementation Plans.”

25. Regulation 1139 “Nitrogen Oxides (NOX) Budget Trading Program.”

26. Regulation 1140 “Delaware's National Low Emission Vehicle (NLEV) Regulation.”

27. Regulation 1141 “Limiting Emissions of Volatile Organic Compounds From Consumer and Commercial Products” (sections 1.0, 2.0, and 3.0).

28. Regulation 1142 “Specific Emission Control Requirements” (section 1.0).

29. Regulation 1144 “Control of Stationary Generator Emissions” (except sections 4.0, 5.0, 6.0, and 9.0).

30. Regulation 1145 “Excessive Idling of Heavy Duty Vehicles.”

31. Regulation 1146 “Electric Generating Unit (EGU) Multi-Pollutant Regulation” (except section 6.0, Table 6-1, and portions of sections 1.0, 2.0, 3.0, 7.0, 8.0, and 9.0 pertaining to control of mercury emissions).

32. Regulation 1148 “Control of Stationary Combustion Turbine Electric Generating Unit Emissions” (except sections 1.0 and 6.0).

EPA's approval of the definitions in Regulation 1101 consists of only those terms which EPA has previously approved and IBR into the Delaware SIP.

EPA's approval action includes the removal of two former SIP requirements codified in Delaware Regulation 1124: Section 39 (Control of Perchlorethylene from Dry Cleaning Operations) and Appendices J1, J1, J2, and J3 (Test Methods for Stage II Vapor Recovery).

II. EPA Action

In this action, EPA is doing the following:

1. Announcing the update to the IBR material as of March 1, 2011.

2. In paragraph 40 CFR 52.420(c),

a. Removing the entries, currently marked “[Reserved],” for Regulation 1124, Section 39 and Regulation 1124, Appendices J, J1, J2, and J3.

b. Correcting the title heading of Regulation 1107.

c. Correcting the following entries in the “Title/subject” column: Regulation 1102, Section 3.0; Regulation 1105, Section 6.0; Regulation 1124, Appendix I, Regulation 1127, Section 2.0; Regulation 37, Appendix “A”; and Regulation 1141, Section 2.0.

d. Removing the state effective date from the “Additional explanation” column for Regulation 1142, Section 2.0.

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 and incorrect table entries.

III. Statutory and Executive Order Reviews

A. General Requirements

Under the Clean Air Act (CAA), the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP Start Printed Page 24374submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. 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 CAA; 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 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 CAA 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 this “Identification of plan” update action for Delaware.

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List of Subjects in 40 CFR Part 52

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Dated: April 7, 2011.

W.C. Early,

Acting, 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. Section 52.420 is amended by:

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a. Revising paragraph (b).

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b. In paragraph (c),

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i. Revising the entries for State Regulation 1102, Section 3.0; State Regulation 1105, Section 6.0; the State Regulation 1107 heading; State Regulation 1124, Appendix I, State Regulation 1127, Section 2.0; State Regulation 1141, Section 2.0, and State Regulation 1142, Section 2.0.

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ii. Removing the entry for State Regulation No. 37, Appendix “AA” and adding an entry for State Regulation No. 37, Appendix “A” in its place.

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iii. Removing the entries for State Regulation 1124, Section 39.0 and Appendices J, J1, J2 and J3.

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The amendments read as follows:

Identification of plan.
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(b) Incorporation by reference. (1) Material listed as incorporated by reference in paragraphs (c) and (d) was approved for incorporation by reference by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The material incorporated is as it exists on the date of the approval, and notice of any change in the material will be published in the Federal Register. Entries in paragraphs (c) and (d) of this section with EPA approval dates on or after March 1, 2011 will be incorporated by reference in the next update to the SIP compilation.

(2) EPA Region III certifies that the rules/regulations and source-specific requirements provided by EPA at the addresses in paragraph (b)(3) of this section are an exact duplicate of the officially promulgated State rules/regulations which have been approved as part of the State implementation plan as of March 1, 2011.

(3) Copies of the materials incorporated by reference may be inspected at the EPA Region III Office at 1650 Arch Street, Philadelphia, PA 19103. For further information, call (215) 814-2108; the EPA, Air and Radiation Docket and Information Center, Room Number 3334, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC 20460. For further information, call (202) 566-1742; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:​federal_​register/​code_​of_​federal_​regulations/​ibr_​locations.html.

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EPA-Approved Regulations in the Delaware SIP

State regulation (7 DNREC 1100)Title/subjectState effective dateEPA approval dateAdditional explanation
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Section 3.0Application/Registration Prepared by Interested Party9/11/088/11/10 75 FR 48566
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1105Particulate Emissions from Industrial Process Operations
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Section 6.0Restrictions on Prill Tower Operation9/11/088/11/10 75 FR 48566
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1107Particulate Emissions from Incineration of Noninfectious Waste
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1124Control of Volatile Organic Compound Emissions
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Appendix IMethod to Determine Length of Rolling Period for Liquid/Liquid Material Balance9/11/088/11/10 75 FR 48566
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1127Stack Heights
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Section 2.0Definitions Specific to this Regulation9/11/088/11/10 75 FR 48566
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Regulation No. 37NO X Budget Program
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Appendix “A”NOX Budget Program12/11/993/9/00 65 FR 12481
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1141Limiting Emissions of Volatile Organic Compounds from Consumer and Commercial Products
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Section 2.0Consumer Products4/11/0910/20/10 75 FR 64673
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1142Specific Emission Control Requirements
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Section 2.0Control of NOX Emissions from Industrial Boilers and Process Heaters at Petroleum Refineries11/11/096/4/10 75 FR 31711New regulation.
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[FR Doc. 2011-10428 Filed 4-29-11; 8:45 am]