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Approval and Promulgation of Air Quality Implementation Plans; Delaware; Requirements for Preconstruction Review, Prevention of Significant Deterioration

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Information about this document as published in the Federal Register.

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This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

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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. The revision establishes and requires the addition of nitrogen oxides (NOX) as a precursor to ozone in the Delaware SIP. EPA is approving this revision to include NOX as a precursor to ozone in the requirements for preconstruction review for prevention of significant deterioration (PSD) areas in Delaware in accordance with the requirements of the Clean Air Act (CAA).


Effective Date: This final rule is effective on October 20, 2011.


EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2010-0770. All documents in the docket are listed in the website. 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 through 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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Sharon McCauley, (215) 814-3376, or by e-mail at

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I. Background

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On May 9, 2011 (76 FR 26679), EPA published a notice of proposed rulemaking (NPR) for the State of Delaware. The NPR proposed approval of NOX as a precursor to ozone in the requirements for preconstruction review for PSD areas in Delaware. The formal SIP revision was submitted by Delaware on April 1, 2010.Start Printed Page 58121

This SIP revision approval will add the current regulations found in Regulation 1125, section 3.0, Requirements for Preconstruction Review, Prevention of Significant Deterioration (Regulation 1125, section 3.0) as of April 11, 2010 which established NOX as a precursor to ozone, but will keep intact the formally approved Delaware SIP increments for NOX found in the Federal Register notice for Delaware dated July 27, 1993 (58 FR 40065) for permitting and the construction of new major stationary sources and the significant modification of existing major stationary sources of air pollutants in areas designated attainment or non-classifiable for the National Ambient Air Quality Standards (NAAQS).

II. Summary of SIP Revision

As required by 40 CFR part 51, Subpart I—“Review of New Sources and Modifications,” this rule adopts criteria and procedures for the prevention of significant deterioration of air quality that are consistent with the governing Federal regulation at 40 CFR 51.166. Promulgation of this rule by the State Legislature was necessary for the State to fulfill its responsibilities under 40 CFR part 51 and the CAA, as amended. Revisions to the State's rule were also necessary to ensure that the SIP provides for the attainment and maintenance of the NAAQS. This SIP approval action addresses changes needed in the part C PSD permit program. This SIP submission also corrects deficiencies identified by EPA in the March 27, 2008 Federal Register action entitled, “Completeness Findings for section 110(a) State Implementation Plans for the 8-hour Ozone National Ambient Air Quality Standards (1997 Ozone NAAQS)” (73 FR 16205). EPA's approval of this SIP submission addresses Delaware's compliance with the portion of CAA section 110(a)(2)(C) & (J) relating to the CAA's part C permit program for the 1997 Ozone NAAQS, because this approval action will establish NOX as a precursor to ozone in Delaware's SIP in accordance with the Federal Register action dated November 29, 2005 (70 FR 71612) that finalized the NOx as a precursor for ozone regulations set forth at 40 CFR 51.166 and in 40 CFR 52.21. As such, this approval action will add NOx as a precursor to ozone in the Delaware SIP and Delaware will be in compliance with the portion of CAA section 110(a)(2)(C) and (J) relating to the CAA's part C permit program for the 1997 ozone NAAQS.

Other specific requirements of NOx as a precursor to ozone 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.

III. Final Action

EPA is approving the addition of nitrogen oxides (NOX) as a precursor to ozone for PSD as a revision to the Delaware SIP and is making a determination that Delaware is in compliance with the portion of CAA section 110(a)(2)(C) and (J) relating to the CAA's part C permit program for the 1997 ozone NAAQS.

IV. Statutory and Executive Order Reviews

A. General Requirements

Under the 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 submissions, 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 action 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. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 21, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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 to add nitrogen oxides (NOX) as a precursor to ozone into the Delaware SIP 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

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Dated: August 31, 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. In § 52.420, the table in paragraph (c) is amended by revising the entry for Regulation 1125, Section 3.0 to read as follows:

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Identification of plan.
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(c) * * *

EPA-Approved Regulations in the Delaware SIP

State regulation (7 DNREC 1100)Title/subjectState effective dateEPA approval dateAdditional explanation
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Section 3.0Prevention of Significant Deterioration of Air Quality4/11/109/20/11 [Insert page number where the document begins]Modified to include NOX as precursor to ozone. Previous SIP-approved revisions to Section 3.1 for nitrogen dioxide increments and Section 3.9A (now designated as Section 3.10.1) for air quality models remain part of the SIP.
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[FR Doc. 2011-23984 Filed 9-19-11; 8:45 am]