  SEQ CHAPTER \h \r 1 	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 70

	[FDMS Docket No. EPA-R03-OAR-2006-0933; FRL-     ]

State Operating Permit Programs; Delaware; 

Amendments to the Definition of a “major source” 

	

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Direct final rule.

SUMMARY:  EPA is taking direct final action to amend the State of
Delaware’s operating permit program to correct the definition of
“major source.”  Delaware’s revision was submitted in response to
the Clean Air Act (CAA) Amendments of 1990 that required States to
submit to EPA program revisions in accordance with the Federal Title V
regulations.  The EPA granted final approval of Delaware’s operating
permit program on November 19, 2001.  Delaware amended its operating
permit program to address the Federal EPA amendment to the Federal Title
V regulation, which went into effect on November 27, 2001, and this
action approves this amendment.  Any parties interested in commenting on
this action granting approval of Delaware’s amendment to the Title V
operating permit program should do so at this time.  

DATES:  This rule is effective on [Insert date 60 days after publication
in the Federal Register]  without further notice, unless EPA receives
adverse written comment by [Insert date 30 days after publication in the
Federal Register].  If EPA receives such comments, it will publish a
timely withdrawal of the direct final rule in the Federal Register and
inform the public that the 

rule will not take effect.

ADDRESSES:  Submit your comments, identified by Docket ID Number
EPA-R03-OAR-2006-0933 by one of the following methods:

A.   www.regulations.gov.  Follow the on-line instructions for
submitting comments.

B.    E-mail:  campbell.dave@epa.gov

C.    Mail:   EPA-R03-OAR-2006-0933, David Campbell, Chief, Permits and
Technical Assessment Branch, Mailcode 3AP11, U.S. Environmental
Protection Agency, Region III, 1650 Arch Street, Philadelphia,
Pennsylvania 19103.

 D.   Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket(s normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.

Instructions:  Direct your comments to Docket ID No.
EPA-R03-OAR-2006-0933.  EPA's policy is that all comments received will
be included in the public docket without change, and may be made
available online at www.regulations.gov, including any personal
information provided, unless the comment includes information claimed to
be Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through www.regulations.gov or
e-mail.  The www.regulations.gov website is an (anonymous access(
system, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment.  If you
send an e-mail comment directly to EPA without going through 
www.regulations.gov, your e-mail address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet.  If you 

submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit.  If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA may
not be able to consider your comment.  Electronic files should avoid the
use of special characters, any form of encryption, and be free of any
defects or viruses.

Docket:  All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., 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 www.regulations.gov or
in hard copy 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 &
Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware
19903.

FOR FURTHER INFORMATION CONTACT: Rosemarie Nino, (215) 814-3377, or by
e-mail at nino.rose@epa.gov. 

SUPPLEMENTARY INFORMATION:  On May 18, 2004, the State of Delaware
submitted an amendment to its State operating permit program.  This
amendments is the subject of this document and this section provides
additional information on the amendment by addressing the following
questions:

What is the State operating permit program?

What are the State operating permit program requirements?

What is being addressed in this document?

What is not being addressed in this document?

What changes to Delaware’s operating permit program is EPA  approving?

What action is being taken by EPA?

What is the State Operating Permit Program?

The Clean Air Act Amendments of 1990 required all States to develop
operating permit programs that meet certain Federal criteria.  When
implementing the operating permit programs, the States require certain
sources of air pollution to obtain permits that contain all of their
applicable requirements under the Clean Air Act (CAA).  The focus of the
operating permit program is to improve enforcement by issuing each
source a permit that consolidates all of its applicable CAA requirements
into a Federally-enforceable document.  By consolidating all of the
applicable requirements for a given air pollution source into an
operating permit, the source, the public, and the State environmental
agency can more easily understand what CAA requirements apply and how
compliance with those requirements is determined.

Sources required to obtain an operating permit under this program
include “major” sources of air pollution and certain other sources
specified in the CAA or in EPA’s implementing regulations.  For
example, all sources regulated under the acid rain program, regardless
of size, must obtain operating permits.  Examples of “major” sources
include those that have the potential to emit 100 tons per year or more
of volatile organic compounds, carbon monoxide, lead, sulfur dioxide,
nitrogen oxides, or particulate matter (PM10 and PM2.5); those that emit
10 tons per year of any single hazardous air pollutant (HAP)
specifically listed under the CAA; or those that emit 25 tons per year
or more of a combination of HAPs.  In areas that are not meeting the
national ambient air quality standards (NAAQS) for ozone, carbon
monoxide, or particulate matter, major sources are defined by the
gravity of the nonattainment classification. 

What are the State Operating Permit Program Requirements?

The minimum program elements for an approvable operating permit program
are those mandated by Title V of the Clean Air Act Amendments of 1990
and established by EPA’s implementing regulations at title 40, part 70
- “State Operating Permit Programs” in the Code of Federal
Regulations (40 CFR part 70).  Title V required state and local air
pollution control agencies to develop operating permit programs and
submit them to EPA for approval by November 15, 1993.  Under Title V,
State and local air pollution control agencies that implement operating
permit programs are called “permitting authorities”.    

 The State was granted final full approval effective on November 19,
2001. On May 18, 2004, Delaware submitted an amendment to its currently
EPA-approved Title V operating permit program.  In general, Delaware
amended its operating permit program regulations to make the current
definition of a “major source” as stringent as the corresponding
provision of 40 CFR Part 70, which went into effect on November 27,
2001.  This change will make this aspect of Regulation No. 30 consistent
with the Federal rule. 

What is Being Addressed in This Document?

This action approves an amendment to the Delaware Title V operating
permit program to correct the definition of a “major source.”  This
amendment would change the definition of “a major source” by
removing the phrase “but only with respect to those air pollutants
that have been regulated for that category” from the Regulation 30
(Title V) definition of a major source as it applies to Federal
standards.

What is Not Being Addressed in This Document?  

EPA is not opening the entirety of Delaware’s Title V operating permit
program up to public comment, we are only addressing this change to the
definition of “major source”.

What Changes to Delaware’s Program is EPA Approving?

Delaware has revised Regulation 30, Section 2 - Definitions, of the
State of Delaware Regulations Governing the Control of Air Pollution to
be consistent with the provision of 40 CFR 70.2. This action is
necessary because the current definition is less stringent than the
corresponding provision of 40 CFR part 70, which went into effect on
November 27, 2001.

Change to Delaware’s Program that Corrects a Deficiency

The EPA has reviewed Delaware’s May 18, 2004 program amendment in
conjunction with the portion of Delaware’s program that was earlier
approved.  Based on this review, EPA is granting full approval of
Delaware’s amended operating permit program.  The EPA has determined
that this amendment to Delaware’s operating permit program adequately
addresses the deficiency.  Delaware’s operating permit program,
including this amendment submitted on May 18, 2004, 

fully meets the minimum requirements of 40 CFR part 70.

What Action is Being Taken by EPA?

The State of Delaware has satisfactorily addressed a program deficiency
when EPA made a change to the Federal rule.  The operating permit
program amendment that is the subject of this document considered
together with that portion of Delaware’s operating permit program that
was earlier approved fully satisfy the requirements of 40 CFR part 70
and the Clean Air Act.  Therefore, EPA is taking direct final action to
fully approve the Delaware Title V operating permit program in
accordance with 40 CFR 70.2 definition of “a major source.”

The EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments.  However, in the “Proposed Rule” section of
today’s Federal Register EPA is publishing a separate document that
will serve as the proposal to approve this amendment to Delaware’s
operating permit program if adverse comments are filed relevant to the
issues discussed in this action.  This rule will be effective on [Insert
date 60 days from date of publication in the Federal Register].  If EPA
receives adverse comments, EPA will publish a timely withdrawal in the
Federal Register informing the public that the rule will not take
effect.  The EPA will address all public comments in a subsequent final
rule based on the proposed rule.  The EPA will not institute a second
comment period on this action.  Any parties interested in commenting
must do so at this time.  Please note that if EPA receives adverse
comment on an amendment, paragraph or section of this rule and if that
provision may be servered from the remainder of the rule, EPA may adopt
as final those provisions of the rule that are not subject of an adverse
comment.

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 Fed. Reg. 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 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), nor  will it 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), because it 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 (62 FR 19885, April 23, 1997), because it is not
economically significant.  

In reviewing State operating permit program 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 an operating permit program for
failure to use VCS.  It would thus be inconsistent with applicable law
for EPA, when it reviews an operating permit program submission, to use
VCS in place of an operating permit program 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.  As required by section 3 of
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this
rule, EPA has taken the necessary steps to eliminate drafting errors and
ambiguity, minimize potential litigation, and provide a clear legal
standard for affected conduct.  The EPA has complied with Executive
Order 12630 (53 FR 8859, March 15, 1988) by examining the takings
implications of the rule in accordance with the “Attorney General’s
Supplemental Guidelines for the Evaluation of Risk and Avoidance of
Unanticipated Takings” issued under the executive order.  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 [insert date 60 days from date of
publication of this document in the Federal Register].  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 fully approving Delaware’s Title V
operating permit program may not be challenged later in proceedings to
enforce its requirements.  (See section 307(b)(2).)  

This action approves an amendment to the Delaware Title V operating
permit program to correct the definition of a “major source.”  

List of Subjects in 40 CFR Part 70

Administrative practice and procedure, Air pollution control,
Environmental protection, 

Operating permits, Reporting and recordkeeping requirements. 

_/s/__________________________    

Dated:   11/21/06                        			William T. Wisniewski       
                         								Acting, Regional Administrator,

                                  					Region III.

40 CFR Part 70 is amended as follows:

PART 70--[AMENDED]						

1.  The authority citation for part 70 continues to read as follows: 

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

2.  Appendix A to part 70 is amended by revising paragraph (c) in the
entry for Delaware to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs

* * * * *

Delaware

	(C)  The Delaware Department of Natural Resources and Environmental
Control submitted program amendment on May 18, 2004.  This rule
amendment contained in the 

May 18, 2004 submittal is necessary to make the current definition as
stringent as the corresponding provision of 40 CFR 70, which went into
effect on November 27, 2001.  The State is hereby granted approval
effective on  [Insert date 45 days after publication in the Federal
Register].					

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