[Federal Register Volume 62, Number 24 (Wednesday, February 5, 1997)]
[Proposed Rules]
[Pages 5357-5361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2848]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE027-1006; FRL-5684-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware--15 Percent Rate of Progress Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve, conditionally, the State 
Implementation Plan (SIP) revisions submitted by the State of Delaware 
to meet the 15 Percent Rate of Progress Plan requirements of the Clean 
Air Act. EPA is proposing to conditionally approve the SIP because the 
15 Percent Plan, submitted by Delaware, will result in significant 
emission reductions in volatile organic compounds (VOCs) from the 1990 
baseline and thus, will provide progress toward attainment of the ozone 
standard. This action is being taken under section 110 of the Clean Air 
Act.

DATES: Comments must be received on or before March 7, 1997.

ADDRESSES: Comments may be mailed to David L. Arnold, Section Chief, 
Ozone/CO & Mobile Sources Section, Mailcode 3AT21, Environmental 
Protection Agency, Region III, 841 Chestnut Building, Philadelphia, 
Pennsylvania 19107. Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the 
Air, Radiation, and Toxics Division, Environmental Protection Agency, 
Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107; 
the Air and Radiation Docket and Information Center, Environmental 
Protection Agency, 401 M. Street, SW., Washington, D.C. 20460; and the 
Delaware Department of Natural Resources & Environmental Control, 89 
Kings Highway, P.O. Box 1401, Dover, Delaware 19903.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 566-2182, at the 
EPA Region III address above. Information can also be requested via e-
mail ([email protected]); however, comments must still be 
submitted in writing.

SUPPLEMENTARY INFORMATION:

Background

    Section 182(b)(1) of the Clean Air Act as amended in 1990 (CAAA), 
requires ozone nonattainment areas with classifications of moderate and 
above to develop plans to reduce area-wide volatile organic compound 
(VOC) emissions by 15 percent from a 1990 baseline. The plans were to 
be submitted by November 15, 1993 and the reductions were required to 
be achieved within 6 years of enactment or November 15, 1996. The CAAA 
also sets limitations on the creditability of certain types of 
reductions. Specifically, states cannot take credit for reductions 
achieved by Federal Motor Vehicle Control Program (FMVCP) measures (new 
car emissions standards) promulgated prior to 1990 or for reductions 
resulting from requirements to lower the reid vapor pressure (RVP) of 
gasoline promulgated prior to 1990.
    Furthermore, the CAAA does not allow credit for corrections to 
Vehicle Inspection and Maintenance Programs (I/M) or corrections to 
Reasonably Available Control Technology (RACT) rules as these programs 
were required prior to 1990.
    In addition, section 172(c)(9) of the CAAA requires that 
contingency measures be included in the plan revision to be implemented 
if reasonable further progress is not achieved or if the standard is 
not attained.
    On February 17, 1995, the Delaware Department of Natural Resources 
& Environmental Control (DNREC) submitted revisions to its SIP. One of 
those revisions pertains to the 15% Rate of Progress Plan (RPP) for the 
State of Delaware. Kent and New Castle are the two counties for which 
Delaware is required to develop a 15% RPP. The other SIP revisions 
submitted on February 17, 1995 are the subject of separate rulemaking 
notices.
    EPA is soliciting public comments on the issues discussed in this 
document or on other relevant matters. These comments will be 
considered before taking final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to the EPA regional offices listed in the ADDRESSES section of 
this document.

EPA's Analysis

    EPA has reviewed Delaware's submittal for consistency with the 
requirements of EPA regulations. A summary of EPA's analysis is 
provided below. More detailed support for approval of Delaware's 
submittal is contained in a Technical Support Document (TSD), which is 
available from the Region III office listed above.

A. Accurate Emission Inventory

    Sections 172(c)(3) and 182(b)(1) of the CAAA require that 
nonattainment plan provisions include a comprehensive,

[[Page 5358]]

accurate, current inventory of actual emissions from all sources of 
relevant pollutants in the nonattainment area. Because the approval of 
such inventories is necessary to an area's rate of progress plan and 
attainment demonstration, the emission inventory must be approved prior 
to or with the rate of progress plan submission.
    On January 24, 1996, EPA approved Delaware's 1990 base year 
inventory (61 FR 1838). Therefore, Delaware has a comprehensive, 
accurate, current inventory of actual emissions from all sources of 
relevant pollutants in the nonattainment areas.

B. Calculation of the Adjusted Base Year Inventory

    The CAAA specifies the emission baseline from which the 15 percent 
reduction is calculated. This baseline value is termed the 1990 
adjusted base year inventory. Section 182(b)(1)(D) excludes from the 
baseline the emissions that would be eliminated by Federal Motor 
Vehicle Control Program (FMVCP) regulations promulgated by January 1, 
1990, and Reid Vapor Pressure (RVP) regulations (55 FR 23666, June 11, 
1990), which require maximum RVP limits in nonattainment areas during 
the peak ozone season.
    The adjusted base year inventory is determined by starting with the 
emission inventory, and taking out all biogenic emissions as well as 
emissions from sources located outside of the designated nonattainment 
boundary. The resulting inventory is termed rate of progress base year 
inventory. The rate of progress base year inventory is then adjusted by 
subtracting the expected FMVCP and RVP emissions reductions in order to 
derive the adjusted base year inventory.
    The FMVCP and RVP emissions reductions are determined using the on-
road mobile source emissions modeling software, Mobile 5a, provided by 
EPA.
    Provided below is a tabular summary of the emission inventories 
calculated as described above.

------------------------------------------------------------------------
                                                                Tons per
                     Emissions inventory                          day   
------------------------------------------------------------------------
A. 1990 Base Year Inventory..................................    196.529
B. 1990 Rate of Progress Inventory...........................    145.843
C. FMVCP and RVP Emission Reductions between 1990 and 1996...      9.590
D. 1990 Adjusted Base Year Inventory (B-C)...................    136.253
------------------------------------------------------------------------

C. Required Reductions

    The adjusted base year inventory is multiplied by 0.15 to calculate 
the amount of the required rate of progress emission reduction. The 
amount of reductions necessary to meet the contingency plan requirement 
is 3 percent of the adjusted base year inventory. Therefore the 
adjusted base year inventory is multiplied by 0.03 to calculate the 
amount of required reductions for the contingency plan requirement.
    Shown below is a table summarizing the amount of required 
reductions for the rate of progress and contingency plans.

------------------------------------------------------------------------
                                                                Tons per
                          Inventory                               day   
------------------------------------------------------------------------
1990 Adjusted Base Year Inventory............................    136.253
Reduction for Rate of Progress Requirement...................     20.438
Reduction for Contingency Requirement........................      4.088
------------------------------------------------------------------------

    Therefore, to meet the rate of progress requirement, Delaware's 
plan must provide at least a 20.438 tons per day (tpd) reduction, net 
of growth, in VOC emissions. In addition, to meet the contingency 
requirement, Delaware's plan must provide at least a 4.088 tpd 
reduction, net of growth, in VOC emissions.
    The 20.438 tpd is the amount of VOC emissions by which Delaware 
must reduce its 1990 Adjusted Base Year Inventory in order to meet the 
15 percent requirement. The 20.438 tpd required reduction does not 
include the amount of projected growth in emissions by 1996 that must 
be offset in the 15% RPP.
    As previously stated, under section 182(b)(1)(D) of the CAAA, the 
following reductions are not creditable towards the rate of progress 
reductions: (1) FMVCP regulations promulgated by January 1, 1990; (2) 
RVP regulations; (3) RACT corrections; and (4) inspection and 
maintenance (I/M) corrections. Thus, the total expected reductions 
comprise the amount of reductions necessary to meet the rate of 
progress requirement and the expected reductions from the four 
noncreditable programs just described.
    Delaware has documented the correct amount for the total expected 
reductions in the nonattainment area by showing each step, discussing 
any assumptions made, and stating the origin of the number used in the 
calculations.

D. Projected Emission Inventory

    The 15% reduction in VOC emissions net of growth required by the 
CAAA amounts to 45.441 tons/day for Kent and New Castle Counties. These 
emissions will be accomplished by implementation of new VOC control 
measures between 1990 and 1996. In order to show that the reductions 
associated with these new control measures are adequate to meet the 15% 
reduction requirement, the 1990 baseline emissions are projected to 
1996. The inventory that results from projecting 1990 baseline 
emissions to 1996 including growth and new controls is called the 1996 
Control Strategy Projection Inventory. The total amount of VOC 
emissions in the 1996 Control Strategy Projection Inventory must be 
equal to or less than the 1996 Target Level of VOC emissions in order 
to show that the new control measures will be adequate to meet the 15% 
rate of progress requirement. The target level of VOC was calculated to 
be 115.815 tons VOC/day, and the total 1996 Control Strategy Projection 
Inventory for VOC is 115.336 tons VOC/day. Therefore, the control 
measures that are included in the 1996 Control Strategy Projection are 
adequate to meet the 15% rate of progress requirement.

E. Control Measures

    The total emissions reduction for Kent and New Castle is 45.920 
tons per peak ozone season day. The amount of VOC reduction that 
Delaware needs to meet the 15% rate of progress requirement is 45.441 
tons/day. Therefore, the control measures listed in the tables below 
are adequate to meet the 15% rate of progress requirement.

                             Control Measures and Expected VOC Emissions Reductions                             
----------------------------------------------------------------------------------------------------------------
                                                                                            Expected emissions  
             Control measures                        Creditable/non-creditable            reductions (tons VOC/ 
                                                                                                   day)         
----------------------------------------------------------------------------------------------------------------
           Point Source Controls                                                                                
                                                                                                                
RACT Catch-ups in Kent County:                                                                                  
    Solvent Metal Cleaning................  Creditable.................................                    0.582
    Surface Coating of Metal Furniture....  Creditable.................................                    0.039

[[Page 5359]]

                                                                                                                
    Leaks from Synthetic Organic Chemical,  Creditable.................................                    0.004
     Polymer, and Resin Mfg Equipment.                                                                          
                                                                                        ------------------------
      Subtotal for RACT in Kent County....  ...........................................                    0.625
New RACT Regulations:                                                                                           
    Bulk Gasoline Marine Tank Vessel        Creditable.................................                    1.896
     Loading Facilities.                                                                                        
    SOCMI Reactor Processes and             Creditable.................................                    0.024
     Distillation Operations.                                                                                   
    Batch Processing Operations...........  Creditable.................................                    0.406
    Offset Lithography....................  Creditable.................................                    0.078
    Aerospace Coatings....................  Creditable.................................                    0.008
    Industrial Cleaning Solvents..........  Creditable.................................                    0.499
    Non-CTG RACT..........................  Creditable.................................                    0.359
                                                                                        ------------------------
      Subtotal for New RACT Regulations...  ...........................................                    3.270
    Benzene Waste Rule....................  Creditable.................................                    1.733
    Sanitary Landfills....................  Creditable.................................                    0.158
    Irreversible Process Changes..........  Creditable.................................                    1.381
                                                                                        ========================
      Total Point Source Reductions.......  ...........................................                    7.167
                                                                                                                
      Stationary Area Source Controls                                                                           
                                                                                                                
RACT Catch-ups in Kent County:                                                                                  
    Solvent Metal Cleaning................  Creditable.................................                    0.134
    Cutback Asphalt.......................  Creditable.................................                    0.025
                                                                                        ------------------------
      Subtotal for RACT in Kent County....  ...........................................                    0.159
New RACT Regulations:                                                                                           
    Stage I Vapor Recovery................  Creditable.................................                    0.629
    Emulsified Asphalt....................  Creditable.................................                    0.052
    Motor Vehicle Refinishing.............  Creditable.................................                    1.242
    Offset Lithography....................  Creditable.................................                    0.070
    Aerospace Coatings....................  Creditable.................................                    0.030
                                                                                        ------------------------
      Subtotal for New RACT Regulations...  ...........................................                    2.023
                                                                                        ------------------------
    Stage II Vapor Recovery...............  Creditable.................................                    1.740
    Open Burning..........................  Creditable.................................                    3.992
                                                                                        ========================
      Total Stationary Area Source          ...........................................                   7.9141
       Reductions.                                                                                              
Off-Road Mobile Source Controls:                                                                                
    Reformulated Fuel.....................  Creditable.................................                    0.509
                                                                                        ------------------------
      Total Off-Road Mobile Source          ...........................................                    0.509
       Reductions.                                                                                              
                                                                                        ------------------------
On-Road Mobile Source Controls:                                                                                 
    FMVCP and RVP.........................  Noncreditable..............................                   24.120
    Tier I Vehicle Emissions Standards....  Creditable.................................                    0.170
    For Kent County: a. Low Enhanced I/M,   Creditable.................................                    1.420
     b. Pressure and ATP.                                                                                       
    Pressure & ATP in New Castle County...  Creditable.................................                    2.180
    Reformulated Fuel.....................  Creditable.................................                    2.440
                                                                                        ------------------------
      Total On-Road Mobile Source           ...........................................                   30.330
       Reductions.                                                                                              
                                                                                        ========================
      TOTAL REDUCTIONS FROM ALL CONTROL     ...........................................                   45.920
       MEASURES.                                                                                                
----------------------------------------------------------------------------------------------------------------

Contingency Measures
    For ozone areas classified as moderate or above, states must 
include in their submittal, under section 172(c)(9) of the CAAA, 
contingency measures to be implemented if Reasonable Further Progress 
(RFP) is not achieved or if the standard is not attained by the 
applicable date. The General Preamble to Title I, (57 FR 13498) states 
that the contingency measures should, at a minimum, ensure that an 
appropriate level of emissions reduction progress continues to be made 
if attainment or RFP is not achieved and additional planning by the 
state is needed. Therefore, EPA interprets the CAAA to require states 
with moderate and above ozone nonattainment areas to include sufficient 
contingency measures in the RPP submittal, so that upon implementation 
of such measures, additional emissions reductions of up to three 
percent of the adjusted base year inventory (or a lesser percentage 
that will make up the identified shortfall) would be achieved in the 
year after the failure has been identified. Contingency measures must 
be fully adopted so that, upon failure to meet a milestone, the 
contingency measures may be implemented without any further rulemaking 
activities by the state.

Analysis of Specific Contingency Measures

    The following is a discussion of each of the contingency measures 
that have

[[Page 5360]]

been included in the SIP submittal and an analysis of their 
acceptableness.
    1. Stage II Vapor Recovery. The CAAA requires states with moderate 
and above ozone nonattainment areas to submit a SIP revision requiring 
owners or operators of gasoline dispensing systems to install and 
operate a system for gasoline vapor recovery of emissions from the 
fueling of motor vehicles. Delaware's Stage II Vapor Recovery program, 
Section 36 of Delaware Air Regulation 24, includes state inspections of 
affected facilities every three years. Delaware took credit for VOC 
emissions reductions from a Stage II Vapor Recovery program with 
triennial inspections as part of its required 15% reduction. Emissions 
reduction from this type of program are estimated using a rule 
effectiveness value. The rule effectiveness increases, if the program 
is conducted with annual state inspections. That is, the program is 
more effective at reducing VOC emissions with the higher inspection 
frequency. Therefore, Delaware plans to implement an annual inspection 
program for Stage II Vapor Recovery as a contingency measure.
    2. Open Burning. Delaware has adopted revisions to its open burning 
regulation which include more stringent restrictions than the previous 
version. A portion of the VOC emissions reductions resulting from the 
open burning regulation will be used as contingency measures.

  Emissions Reductions From Contingency Measures in Tons Per Peak Ozone 
                               Season Day                               
------------------------------------------------------------------------
                                                                  VOC   
                    Contingency measures                       emissions
                                                              reductions
------------------------------------------------------------------------
Stage II Vapor Recovery with Annual Inspections.............       0.619
Open Burning................................................       3.469
                                                             -----------
      Total.................................................       4.088
------------------------------------------------------------------------

Proposed Action

    EPA has evaluated the Delaware 15% RPP SIP submittal for 
consistency with the CAAA, EPA regulations, and EPA policy. The 15% RPP 
SIP submittal will achieve enough reductions to meet the 15 percent 
rate of progress requirements of section 182(b)(1) of the CAAA. In 
addition, the contingency plans in the SIP submittal will achieve 
enough emission reductions, if implemented, to meet the three percent 
reduction requirement under 172(c)(9) of the CAAA. EPA is proposing 
conditional approval of this plan revision under section 110(k)(3) and 
Part D.
    EPA believes that approval of the control measures in the 15% RPP 
will strengthen the Delaware SIP. Therefore, EPA is proposing 
conditional approval of the control measures in the 15% Rate of 
Progress and Contingency Plans.
    All of the control measures which produce creditable reductions in 
VOCs have been approved by EPA with one exception. Delaware has amended 
provision of its vehicle inspection and maintenance (I/M) program for 
pressure testing and anti-tampering. EPA is, today, via a separate 
rulemaking, also proposing conditional approval of Delaware's 
amendments to its enhanced I/M SIP. As credits from that program are 
part of the 15% plan, EPA must conditionally propose approval of the 
15% plan SIP as well.
    EPA is proposing to conditionally approve Delaware's enhanced I/M 
SIP if Delaware commits within 30 days of EPA's proposal to correct the 
deficiencies identified in our proposed rulemaking notice on the I/M 
SIP by a date certain within 1 year of the final conditional ruling. If 
Delaware corrects the deficiencies by that date, and submits a new 
enhanced I/M SIP revision, EPA will conduct rulemaking to fully approve 
the revision. Each of the conditions must be fulfilled by Delaware and 
submitted to EPA as an amendment to Delaware's I/M SIP revision. If 
such commitment is not made within 30 days, EPA is proposing in the 
alternative to disapprove the I/M SIP revision. If Delaware does make a 
timely commitment, but the conditions are not met by the specified date 
within 1 year, EPA is proposing that the rulemaking will convert to a 
final disapproval. EPA would notify Delaware by letter that the 
conditions have not been met and that the conditional approval of the 
enhanced I/M SIP has converted to a disapproval. Once Delaware 
satisfies the condition of its I/M rulemaking and receives full 
approval, EPA will fully approve the 15% plan SIP. Conversely, if the 
I/M rulemaking converts to a final disapproval, EPA's conditional 
approval of the 15% plan SIP would also convert to a disapproval.
    Nothing in this proposed rule should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to any SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.

Administrative Requirements

A. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    Conditional approvals of SIP submittals under section 110 and 
subchapter I, part D of the CAAA do not create any new requirements, 
but simply approve requirements that the state is already imposing. 
Therefore, because the Federal SIP approval does not impose any new 
requirements, EPA certifies that it does not have a significant impact 
on any small entities affected. Moreover, due to the nature of the 
Federal-State relationship under the CAAA, preparation of a regulatory 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of state action. The CAAA forbids EPA to base its 
actions concerning SIPs on such grounds. Union Electric Co. v US EPA, 
427 US 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).
    If the conditional approval is converted to a disapproval under 
section 110(k), based on the State's failure to meet the commitment, it 
will not affect any existing state requirements applicable to small 
entities. Federal disapproval of the state submittal does not affect 
its state-enforceability. Moreover, EPA's disapproval of the submittal 
does not impose a new Federal requirement. Therefore, EPA certifies 
that this disapproval action does not have a significant impact on a 
substantial number of small entities because it does not remove 
existing requirements nor does it substitute a new federal requirement.

[[Page 5361]]

C. Unfunded Mandates

    Under Sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
private sector, of $100 million or more. Under Section 205, EPA must 
select the most cost effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that the approval action proposed/promulgated 
does not include a Federal mandate that may result in estimated costs 
of $100 million or more to either State, local, or tribal governments 
in the aggregate, or to the private sector. This Federal action, 
Delaware 15% Rate of Progress Plan, approves pre-existing requirements 
under State or local law, and imposes no new requirements. Accordingly, 
no additional costs to State, local, or tribal governments, or to 
private sector, result from this action.
    The Administrator's decision to approve or disapprove the Delaware 
15% Rate of Progress Plan SIP revision will be based on whether it 
meets the requirements of section 110(a)(2)(A)-(K) and part D of the 
CAAA, and EPA regulation in 40 CFR part 51.

List of Subjects in 40 CFR Parts 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Intergovernmental regulations, Nitrogen oxide, Reporting 
and recordkeeping, Ozone, Volatile organic compounds.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: January 24, 1997.
W. Michael McCabe,
Regional Administrator, Region III.
[FR Doc. 97-2848 Filed 2-4-97; 8:45 am]
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