[Federal Register Volume 66, Number 169 (Thursday, August 30, 2001)]
[Proposed Rules]
[Pages 45800-45806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-21925]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE034/045/055-1016; FRL-7047-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Post 1996 Rate-of-Progress Plan for the Delaware Portion of 
the Philadelphia-Wilmington-Trenton Ozone Nonattainment Area and 
Revisions Related to the Area's Attainment Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve State Implementation Plan (SIP) 
revisions submitted by the State of Delaware. These revisions establish 
the three (3) percent per year emission reduction rate-of-progress 
(ROP) requirement for the period from 1996 through 2005 for the 
Delaware portion of the Philadelphia-Wilmington-Trenton severe ozone 
nonattainment area (the Philadelphia area), namely Kent and New Castle 
Counties. In conjunction with the ROP plans, themselves, EPA is also 
proposing to approve Delaware's contingency measures for ROP. EPA is 
also proposing to approve two revised enforceable commitments submitted 
by Delaware in response to EPA's December 16, 1999 proposed rulemaking 
action to approve the Philadelphia area's attainment demonstration. 
This proposal serves to open a comment period on these proposed 
revisions to the attainment demonstration plan.

DATES: Written comments must be received on or before October 1, 2001.

ADDRESSES: Written comments may be mailed to David L. Arnold, Chief, 
Air Quality Planning and Information Services Branch, Mailcode 3AP21, 
U.S. Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. Copies of the documents relevant to 
this action are available 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; 
Delaware Department of Natural Resources & Environmental Control, 89 
Kings Highway, P.O. Box 1401, Dover, Delaware 19903.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182 or by e-
mail at [email protected]. Please note that while questions may be 
posed via telephone and e-mail, formal comments must be submitted, in 
writing, as indicated in the ADDRESSES section of this document.

SUPPLEMENTARY INFORMATION:

I. Clean Air Act Requirements

    For severe ozone nonattainment areas, the Clean Air Act (the Act) 
requires states to submit a plan to the United States Environmental 
Protection Agency (EPA) to achieve a fifteen (15) percent net reduction 
by November 15, 1996 of actual anthropogenic (human-caused) volatile 
organic compound (VOC) emissions. In addition to the 15 percent 
reduction, the Act also requires states to submit SIP revisions that 
achieve actual VOC emission reductions of at least 3 percent per year 
averaged over each consecutive 3-year period beginning November 1996, 
until the severe area's applicable attainment date of 2005. These ROP 
emission reductions are based on the states' 1990 emission levels. The 
Act also provides for crediting of VOC emission reductions achieved in 
the 1990-1996 period to the Post-1996 ROP plan if they are in excess of 
15 percent VOC reductions requirements, and substitution of any 
anthropogenic nitrogen oxides ( NOX) emission reductions, 
net of growth, occurring in the post-1990 period for the post-1996 VOC 
emission reduction requirements.
    The SIP revision for the 1990-1996 reductions is termed the ``15 
Percent ROP plan,'' and the plans for an average 3 percent per year 
reduction over each 3-year period after 1996 are collectively termed 
the ``Post-1996 ROP plan.'' The Post-1996 ROP plan for a severe area 
with an attainment date of 2005, has 3 milestone years, 1999, 2002 and 
2005. To satisfy the Post-1996 Plan requirement, States generally 
developed separate plans for each 3 year period and refer to those 
plans as the1999 ROP plan, the 2002 ROP plan and the 2005 ROP plan.
    For states within the Ozone Transport Region (OTR) with serious and 
above ozone nonattainment areas, a memorandum dated March 2, 1995, from 
Mary D. Nichols, EPA's then Assistant Administrator for Air and 
Radiation, provides for a two-phased approach to the Post-1996 ROPs. 
Briefly, in Phase I, the states are required to develop a plan for the 
milestone year of 1999 which includes necessary control measures to 
achieve a 9 percent reduction of VOC and/or NOX emissions 
between November 1996 and November 1999. In Phase II, the states are 
required to assess the regional and local control measures necessary to 
meet the rate-of-progress requirements through the

[[Page 45801]]

attainment year and to achieve attainment. Thus severe ozone 
nonattainment areas such as the Philadelphia area, the Phase II plan 
needed to identify the measures needed to demonstrate ROP through the 
2005 attainment year. States were to phase-in adoption of rules and 
implement measures to meet ROP beginning no later than 1999.
    The Philadelphia nonattainment area is comprised of seven counties 
in New Jersey, five counties in Pennsylvania, two counties in Delaware 
and one county in Maryland. These jurisdictions made a collective 
decision that each would be responsible for producing ROP plans for its 
portion of the Philadelphia area using its 1990 baseline of emissions.
    Section 172(c)(9) of the Act requires moderate and above ozone 
nonattainment areas to adopt contingency measures to be implemented 
should the area fail to achieve ROP or to attain by its attainment 
date. In addition, section 182(c)(9) of the Act requires serious and 
above areas to adopt contingency measures which would be implemented if 
the area fails to meet any applicable milestone.
    Under EPA's transportation conformity rule, like an attainment 
plan, an ROP plan is referred to as a control strategy SIP (62 FR 
43779). A control strategy SIP identifies and establishes the motor 
vehicle emissions budgets (MVEBs) to which an area's transportation 
improvement program and long range transportation plan must conform. 
Conformity to a control strategy SIP means that transportation 
activities will not produce new air quality violations, worsen existing 
violations, or delay timely attainment of the national ambient air 
quality standard.
    On December 16, 1999, we published a notice of proposed rulemaking 
(NPR) proposing approval of the attainment demonstration SIP revision 
submitted by Delaware for the Philadelphia area (64 FR 70444). Our 
approval was contingent upon certain actions by Delaware for the 
Philadelphia area. These actions were: (1) Delaware had to adopt and 
submit an adequate motor vehicle emissions budgets including the 
benefits of the Federal Tier 2/Sulfur-in-Fuel rule (required because 
the Philadelphia area's attainment SIP includes the benefits of EPA's 
Tier 2/Sulfur-in-Fuel rule); and (2) Delaware had to adopt and submit 
enforceable commitments to do the following:
    (a) Submit measures by October 31, 2001 for additional emission 
reductions as required in the attainment demonstration test as 
discussed in section I.C.5. of the December 16, 1999 proposed approval. 
For additional emission reduction measures developed through the 
regional process, the state must also submit an enforceable commitment 
for the additional measures and a backstop commitment to adopt and 
submit intrastate measures for the emission reductions in the event the 
regional process does not recommend measures that produce emission 
reductions.
    (b) Submit a revised SIP and motor vehicle emissions budgets by 
October 31, 2001 if additional measures affect the motor vehicle 
emissions inventory.
    (c) Submit a revised SIP and motor vehicle emissions budgets one 
year after MOBILE6 issued.
    (d) Perform a mid-course review.
    On December 16, 1999, EPA proposed approval of the attainment 
demonstrations for ten ozone nonattainment areas in the eastern United 
States (64 FR 70317). On July 28, 2000, we published a supplemental 
notice of proposed rulemaking (SNPR) on the attainment demonstration 
(65 FR 46383). In that SNPR, we clarified and expanded on two issues 
relating to the motor vehicle emissions budgets for the SIP revisions 
subject to all of these December 16, 1999 proposed actions. In the July 
28, 2000 SNPR, we reopened the comment period to take comment on these 
two issues and to allow comment on any additional materials that were 
placed in the dockets for the proposed actions close to or after the 
initial comment period closed on February 14, 2000. For many of the 
areas, including the Philadelphia area, covered by the July 28, 2000 
SNPR, additional information had been placed in the docket during or 
after the initial comment period concluded. In general, the SNPR 
identified these materials as consisting of motor vehicle emissions 
budgets, and revised or additional commitments or reaffirmations 
submitted by the States (65 FR at 46387, July 28, 2000).
    On January 24, 2000 (prior to July 28, 2000 but during the original 
comment period), DNREC submitted revised motor vehicle emissions 
budgets that reflect the benefits from EPA's Tier 2/Sulfur rule and the 
enforceable commitments to: (1) Adopt control measures consistent with 
the reductions assumed in the attainment plan, and assume reductions in 
transported NOX consistent with EPA's NOX SIP 
Call; (2) adopt additional measures that can be adopted regionally such 
as in the OTR, or locally; and (3) conduct a mid-course review. The 
comment period established by the July 28, 2000 SNPR concluded on 
August 28, 2000.
    As stated above, on January 24, 2000, Delaware submitted an 
addendum to its May 22, 1998 submittal of the Phase II attainment plan 
for the Philadelphia area that provided revised emission budgets for 
the on-road mobile source portion of the plan which reflect the 
benefits of the National Low Emission Vehicle program (NLEV), Heavy-
Duty Diesel Engine (HDDE) rule, Reformulated Gasoline (RFG II) and the 
Tier 2/Low Sulfur rule. On May 31, 2000, EPA determined the attainment 
budgets to be adequate for transportation conformity purposes. That 
determination became effective on June 23, 2000 (65 FR 36440, June 8, 
2000). As stated earlier, the submittal of January 24, 2000 also 
included the enforceable commitments.
    As stated earlier, the attainment date for the Philadelphia area 
severe ozone nonattainment area is 2005. This rulemaking addresses the 
SIP revisions submitted by DNREC to satisfy the Post-1996 ROP 
requirements of the Act for the Delaware portion of the Philadelphia 
area, namely Kent and New Castle Counties. In this rulemaking, EPA is 
proposing to approve Delaware's plans demonstrating ROP through the 
2005 attainment year. Also as part of this rulemaking, EPA is proposing 
to approve the contingency measures that were submitted with the 
Delaware ROP plans. EPA is also proposing to approve the two revised 
enforceable commitments that Delaware submitted in response to our 
December 16, 1999 proposed rulemaking.

II. Delaware State Implementation Plan Submittals

A. Rate-of-Progress Plans

    All the aforementioned rate-of-progress emission reductions are to 
be from the state's 1990 emission levels. Delaware's 1990 Base Year 
Ozone Emission Inventory, which is an inventory of the 1990 actual VOC, 
NOX, and CO emissions from all sources in Delaware 
(stationary, on-road mobile, off-road mobile, area and biogenic), was 
submitted to EPA as a SIP revision on May 27, 1994, and was approved on 
January 24, 1996 (61 FR 1838). Delaware's actual 1990 VOC and 
NOX emissions are 196.52 tons per day (tpd) and 162.82 tpd, 
respectively. Since the ozone NAAQS attainment date for the 
Philadelphia area is 2005, Delaware is required to submit a 15 Percent 
ROP plan, and ROP plans for the three post-1996 milestone years, i.e., 
1999, 2002, and 2005 for Kent and New Castle Counties. Delaware's 15 
Percent ROP

[[Page 45802]]

was submitted to EPA as a SIP revision in February 17, 1995. In this 
plan, Delaware showed that, by implementing necessary control measures, 
the required 15 percent VOC emission reduction could be successfully 
met by 1996. EPA fully approved Delaware's 15 Percent ROP on October 
12, 1999 (64 FR 55139).
    Delaware's 1999 ROP plan, the first post-1996 SIP revision 
developed according to the Phase I requirements set forth in the 
Nichols' memorandum, was submitted to EPA on December 29, 1997. On June 
17, 1999, Delaware submitted amendments to the 1999 ROP plan. The Phase 
I plan contained the first 9 percent ROP demonstration for the 1999 
milestone year, and enforceable commitments to address the first phase 
of the attainment plan. On May 22, 1998, Delaware submitted the Phase 
II attainment demonstration document for the Philadelphia area. EPA 
asked Delaware to submit additional technical information for the Phase 
II plan. Delaware submitted the Phase II supplement on October 8, 1998. 
In the May 22, 1998 submittal, Delaware made a commitment to submit a 
SIP revision to EPA before the end of 2000 to address the emission 
reductions for the post-1999 rate of progress milestone years up to the 
2005 attainment date for the one hour ozone standard (i.e., 2002, 
2005). Delaware submitted its 2002 ROP plan on February 3, 2000 and 
amendments to that plan on December 20, 2000. Delaware submitted its 
2005 ROP plan on December 20, 2000.

B. Amendments to the Attainment Demonstration

    On December 20, 2000, Delaware submitted amendments to the 
enforceable commitments it previously had submitted as required by our 
December 16, 1999 proposed action. These amendments involve commitments 
made by Delaware to: (1) Submit by October 31, 2001, additional 
measures for additional emission reductions, and (2) revise the SIP and 
the motor vehicle emission budgets within a year of the release of 
MOBILE6. The commitments submitted on December 20, 2000 have been 
placed in docket for the attainment demonstration SIP. We are proposing 
to approve these revised enforceable commitments, which were submitted 
on December 20, 2000, as part of Delaware's attainment demonstration 
SIP for the Philadelphia area. We are soliciting public comments on the 
issues discussed in this document. 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 Office listed in the ADDRESSES section of this document.

III. EPA Evaluation of Delaware's Post 1996 ROP Submittals

A. Demonstrating Rate of Progress

Target Levels of VOC and NOX Emissions
    The first step in demonstrating ROP is to determine the target 
level of allowable emissions for each ROP milestone year. The target 
level of emissions represents the maximum amount of emissions that can 
be emitted in a nonattainment area in the given ROP milestone year, 
which in this case is 1999, 2002 or 2005. The Act allows states to 
substitute NOX emission reductions for VOC emission 
reductions in Post-1996 ROP plans. The required ROP is demonstrated 
when the sum of all creditable VOC and NOX emission 
reductions equal at least 3 percent per year grouped in three year 
periods (i.e., 1996-1999), or for a total of 9 percent. If a state 
wishes to substitute NOX for VOC emission reductions, then a 
target level of emissions demonstrating a representative combined 9 
percent emission reduction in VOC and NOX emissions must be 
developed for that milestone year. The six steps involved in 
calculating the target level of emissions for the milestone years are 
described below.
    (1) Develop the 1990 base year inventory for VOC and 
NOX.
    (2) Develop the 1990 baseline inventory. The baseline inventory is 
calculated by removing from the 1990 base year inventory: biogenic 
emissions, any emissions from the sources located outside of the 
nonattainment area, and the non-reactive perchloroethylene (PERC) 
emissions (for VOC inventory only). In addition, the 1990 baseline 
inventory for Delaware's portion the Philadelphia area has been amended 
due to switching from the MOBILE5a model to the MOBILE5b model.
    (3) Develop the 1990 adjusted base year inventory. The 1990 
adjusted baseline inventory excludes VOC and NOX emissions 
reductions achieved by the Federal Motor Vehicle Program (FMVCP) and 
Reid Vapor Pressure (RVP) regulations promulgated prior to the 
enactment of the Act (Section 182 (b)(1)(D)).
    (4) Calculate the fleet turnover correction term for the three year 
period. The fleet turnover correction is the difference between the 
FMVCP/RVP emission reductions calculated in step 3 and the previous 
milestone year's FMVCP/RVP emission reductions.
    (5) Calculate the required VOC and NOX emission 
reduction to demonstrate ROP for each consecutive three year milestone 
interval (multiply the adjusted base year inventory by 0.09).
    (6) Calculate the target levels of VOC and NOX emissions 
in each milestone years. The target levels in each milestone years are 
calculated by subtracting the required emission reductions (see step 5) 
and the fleet turnover corrections (see step 4) from the previous 
milestone year. One exception is the calculation of NOX 
emission target for the 1999 milestone year. Because 1999 is the first 
milestone year with respect to NOX emission reduction, the 
target calculation does not subtract the fleet turnover correction (EPA 
Guidance on the Post-1996 Rate of Progress Plan and Attainment 
Demonstration, February 1994).
    Because Delaware used MOBILE5b in estimating the on-road mobile 
source emissions, the VOC and/or NOX target levels for 1996, 
1999 and 2002 have also been recalculated to account for the use of 
MOBILE5b. The calculations and results are summarized in Table 1. The 
VOC and NOX emissions are in tons per day (tpd) in the peak 
ozone season (June 1 through August 31).

    Table 1.--Target Levels of VOC and NOX Emissions (in tpd) in Each
                             Milestone Year
------------------------------------------------------------------------
                                                      Emissions
                Description                -----------------------------
                                                 VOC            NOX
------------------------------------------------------------------------
1996 Target Level--VOC....................         115.79  .............
1990 Baseline Adjusted for 1999--NOX......  .............         158.97
For the 1999 Milestone Year:
    Emission Reduction for Rate of                   2.08          11.84
     Progress.............................
    Fleet Turnover Correction for 1996-              1.90           0.00
     1999.................................
    Target Level for 1999.................         111.81         147.13

[[Page 45803]]

 
For the 2002 Milestone Year:
    Emission Reduction for Rate of                  11.16           0.98
     Progress.............................
    Fleet Turnover Correction for 1999-              1.2            0.43
     2002.................................
    Target Level for 2002.................          99.45         145.72
For the 2005 Milestone Year:
    Emission Reduction for Rate of                   3.04          10.63
     Progress.............................
    Fleet Turnover Correction for 2003-              0.63           0.16
     2005.................................
    Target Level for 2005.................          95.78         134.93
------------------------------------------------------------------------

Growth Projections (1990-2005)
    Section 182(c)(2) of the Act requires Delaware's two severe ozone 
nonattainment counties (Kent and New Castle Counties) to achieve a 3 
percent per year emissions reduction averaged over each consecutive 3-
year period after 1996, plus offsetting emission growth, until 2005, 
the year of attainment for the Philadelphia area. To determine the 
total amount of VOC and NOX emissions reductions for 1999, 
2002 and 2005 ROP, the emissions levels for the milestone years must be 
estimated. For this purpose, the growth factors are developed for 
various source categories of emissions based on economic indicators. 
The 1990 baseline emissions multiplied by these growth factors, and the 
resulting inventory is called the Current Control Projection Inventory. 
The current control projections are estimates of VOC and NOX 
emissions that will occur in each milestone year, if no new emission 
control measures are implemented between 1990 and 2005. The differences 
between the milestone year current control projections and the 
milestone year target level of emissions are the total VOC and/or 
NOX emissions that Delaware must plan to reduce in order to 
meet the VOC and/or NOX reduction requirements for that 
milestone year. The required reductions are summarized in Table 2.

                                    Table 2.--Required VOC and NOX Emission Reduction for Each Milestone Year in tpd
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                                                                            1999                          2002                          2005
                          Description                          -----------------------------------------------------------------------------------------
                                                                     VOC            NOX            VOC            NOX            VOC            NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Projected Uncontrolled Emissions..............................         153.73         184.04         159.00         186.87         164.08         195.47
Target Level..................................................         111.81         147.13          99.45         145.71          95.78         134.93
Emissions Reductions Required.................................          41.92          36.91          59.55          41.15          68.30          60.54
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    The methodologies used by Delaware to project emissions growth and 
EPA's evaluation are discussed in more detail in a Technical Support 
Document (TSD) prepared in support of this proposed rulemaking. A copy 
of the TSD is available, upon request, from the EPA Regional Office 
listed in the ADDRESSES section of this document. We believe that the 
methodology employed in Delaware's ROP plans for selecting growth 
factors and applying them to the 1990 base year emissions inventory to 
estimate emissions growth in point, area, on-road mobile and off-road 
mobile sources is approvable.
Evaluation of Emission Control Measures
    The ROP plan is to demonstrate how the state will reduce emissions 
3 percent per year, grouped in three year intervals, through the area's 
attainment year. In general, reductions toward ROP requirements are 
creditable provided the control measures occurred after 1990 and are 
real, permanent, quantifiable, federally enforceable and they occurred 
by the applicable ROP milestone year. A detailed evaluation of each of 
the control measures implemented by Delaware can be found in the TSD 
prepared for this rulemaking. Table 3 below provides a summary of the 
control measures used by Delaware to achieve ROP in Kent and New Castle 
Counties. All control measures in the ROP demonstration have been 
adopted and fully implemented by the State of Delaware or are Federal 
measures being implemented nationally. All state control measures have 
been fully approved by EPA into the Delaware SIP and are permanent and 
enforceable. The mobile source control programs include the total 
amount of reductions associated with vehicle inspection and 
maintenance, Tier 1 motor vehicle emission standards, reformulated 
gasoline, the National Low Emissions Vehicle (NLEV) program, highway 
heavy duty diesel engine standards, and Tier 2 emission standards and 
low sulfur fuel standards. EPA's MOBILE5b emissions model was used to 
generate mobile source emission reductions.

[[Page 45804]]



               Table 3.--Summary of VOC and NOX Emission Control Measures and Emission Reductions for Each Milestone Year in tons per day
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       1999 Reductions               2002 Reductions               2005 Reductions
                       Control Measures                        -----------------------------------------------------------------------------------------
                                                                     VOC            NOX            VOC            NOX            VOC            NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Point and Area Source Controls
--------------------------------------------------------------------------------------------------------------------------------------------------------
VOC RACT......................................................           7.63  .............           7.74  .............           8.52  .............
Non-CTG RACT..................................................           0.37  .............           0.38  .............           0.38  .............
 NOX RACT.....................................................  .............           2.24  .............           2.32  .............           2.39
OTR Regional NOX MOU..........................................  .............          28.91  .............          27.22  .............  .............
Federal NOX SIP Call Regional Control.........................  .............  .............  .............  .............  .............          32.93
Federal Benzene Waste Rule....................................           1.72  .............           1.32  .............           1.32  .............
Sanitary Landfills............................................           0.25  .............           0.35  .............           0.44  .............
Irreversible Process Changes..................................           1.93  .............           1.96  .............           2.01  .............
Open Burning..................................................           7.67           1.53           7.83           1.56           7.81           1.59
Consumer Products.............................................  .............  .............           0.59  .............           0.59  .............
Architectural Coatings........................................  .............  .............           1.34  .............           1.38  .............
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Off-Road Mobile Source Controls
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reformulated Fuel.............................................           0.52  .............           0.03  .............           0.03  .............
Small Spark Ignition Engines..................................           1.78          -0.08           4.07           0.05           4.99           0.06
Compression Ignition Engines..................................           0.00           1.12           0.73           2.82           1.07           4.38
Marine Engines................................................           0.01  .............           1.02          -0.06           2.04          -0.11
Locomotives...................................................  .............  .............  .............           0.52           0.00           0.77
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             On-Road Mobile Source Controls
--------------------------------------------------------------------------------------------------------------------------------------------------------
FMVCP and RVP.................................................          18.12           2.14          19.93           2.53  .............  .............
Tier 1 Vehicle Emission Standards.............................           1.42           3.41           4.28           5.95  .............  .............
Enhanced I/M..................................................           5.64           0.99           1.21           1.23  .............  .............
Reformulated Fuel.............................................           2.48          -0.17           5.88          -0.19  .............  .............
LEV Program...................................................  .............  .............           0.41           0.85  .............  .............
Heavy Duty Diesel Engines
NLEV Program
Tier 2 Emission Standards/Low Sulfur Fuel.....................  .............  .............  .............  .............           0.70           3.61
                                                               -----------------------------------------------------------------------------------------
    Total On-Road Mobile source reductions....................          27.66           6.37          36.01          10.37          37.71          19.21
                                                               -----------------------------------------------------------------------------------------
    Total Reductions from All Controls........................          49.54          40.08          63.37          44.80          68.30          61.22
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Milestone Year 1999: The control measures that Delaware plans to 
implement in order to meet the average 3 percent per year rate of 
progress for the milestone year 1999 are listed in Table 3 above. The 
VOC and NOX emissions reductions for the nonattainment area 
are 49.54 and 40.08 tons per peak ozone season day (tpd), respectively. 
The VOC and NOX reductions that are required by Delaware in 
order to meet the average 3 percent rate-of-progress requirement are 
41.92 and 36.91 tons per peak ozone season day, respectively (refer to 
Table 2 above). Therefore, the control measures listed in Table 3 are 
adequate to meet the 3 percent per rate of progress requirement for the 
milestone year 1999.
    Milestone Year 2002: The control measures that Delaware plans to 
implement to meet the average 3percent per year rate of progress 
requirement, plus offsetting the emission growth for the 1999-2002 
period are listed in Table 3 above. The VOC and NOX 
emissions reductions for the attainment area are 63.37 and 44.80 tpd, 
respectively. The VOC and NOX reductions that are required 
by Delaware in order to meet the average 3 percent rate of progress 
requirement are 59.55 and 41.15 tpd, respectively (refer to Table 2 
above). Therefore, the control measures in Table 3 are adequate to meet 
the average 3 percent per year rate of progress requirement, plus 
offsetting the emission growth for the 2000-2002 period.
    Milestone Year 2005: The control measures that Delaware plans to 
implement to meet the average 3 percent per year rate of progress 
requirement, plus offsetting the emission growth for the 2003-2005 
period are listed in Table 3 above. The VOC and NOX 
emissions reductions for the attainment area are 68.30 and 61.22 tpd, 
respectively. The VOC and NOX reductions that are required 
by Delaware in order to meet the average 3 percent rate-of-progress 
requirement are 68.30 and 60.54 tpd, respectively (refer to Table 2 
above). Therefore, the control measures in Table 3 are adequate to meet 
the average 3 percent per year rate of progress requirement, plus 
offsetting the emission growth for the 2003-2005 period.
Summary of Delaware's Post-1996 ROP Demonstration
    Delaware's ROP demonstration is summarized in Table 4 below. The 
table shows that the projected control strategy inventories are less 
than or equal to the target level established for each milestone year. 
Therefore the ROP plans demonstrate that emissions have been reduced by 
a minimum of 9 percent, net of growth, for each milestone year.

[[Page 45805]]



                                                  Table 4.--Delaware Post 1996 ROP Demonstration in tpd
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   1999 VOC       1999 NOX       2002 VOC       2002 NOX       2005 VOC       2005 NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Projected Uncontrolled Emissions (Table 2)....................         153.73         184.04         159.00         186.87         164.08         195.47
Reductions From Creditable Emission Control Measures (Table 3)          49.54          40.08          63.37          44.80          68.30          61.22
Emissions Level Obtained (Uncontrolled Emissions minus                 104.19         143.96          95.63         142.07          95.78         134.25
 Emission reductions).........................................
Projected Target Levels (Table 1).............................         111.81         147.13          99.45         145.72          95.78         134.93
Surplus Emission Reductions (Target Levels Minus Emissions               7.62           3.17           3.82           3.65           0.00           0.68
 Obtained)....................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------

B. Motor Vehicle Emissions Budgets (MVEBs)

    Under EPA's transportation conformity rule, a ROP plan is referred 
to as a control strategy SIP (62 FR 43779). A control strategy SIP 
identifies and establishes the MVEBs to which an area's transportation 
improvement program and long range transportation plan must conform. 
Conformity to a control strategy SIP means that transportation 
activities will not produce new air quality violations, worsen existing 
violations, or delay timely attainment of the national ambient air 
quality standard. The budgets for the Delaware ozone nonattainment area 
are shown in Table 5 below.

                     Table 5.--Motor Vehicle Emission Budgets for Delaware ROP Plans in tpd
----------------------------------------------------------------------------------------------------------------
                                                                      VOC                         NOX
                                                         -------------------------------------------------------
                     Milestone Year                                      New Castle                  New Castle
                                                          Kent  County     County     Kent  County     County
----------------------------------------------------------------------------------------------------------------
1999....................................................          7.55         22.49         11.17         29.41
2002....................................................          6.30         18.44          9.81         27.29
2005....................................................          4.84         14.76          7.90         22.92
----------------------------------------------------------------------------------------------------------------

    The 1999 on-road motor vehicle emission budgets were determined 
adequate for transportation conformity determinations in a April 29, 
1999 letter from EPA Region III to DNREC (64 FR 31217, June 10, 1999). 
Both the 2002 and 2005 budgets were determined adequate for 
transportation conformity determinations on April 5, 2001. That 
determination became effective May 2, 2001 (66 FR 19769, April 7, 
2001). By proposing approval of Delaware's Post-1996 ROP plans, EPA is 
also proposing to approve these motor vehicle emission budgets 
established in the Post-1996 ROP plan SIPs.

C. Contingency Measures

    Section 172(c)(9) of the Act requires moderate and above ozone 
nonattainment areas to adopt contingency measures that would be 
implemented should the area fail to achieve ROP or to attain by its 
attainment date. In addition, section 182(c)(9) of the Act requires 
serious and above areas to adopt contingency measures which would be 
implemented if the area fails to meet any applicable milestone. EPA 
issued a guidance, ``Early Implementation of Contingency Measures for 
Ozone and Carbon Monoxide Nonattainment Areas, August 13, 1993,'' that 
allows states to implement their contingency measures early. However, 
contingency measures that are implemented early cannot also be used to 
meet ROP. EPA does not believe it is logical to penalize areas that are 
taking extra steps to implement contingency measures early, nor should 
states be required to backfill for the early activation of contingency 
measures.
    In its ROP plans, Delaware outlines its approach for using already 
implemented control measures for contingency purposes. The EPA 
encourages the early implementation of required control measures and of 
contingency measures as a means of guarding against failure to meet a 
milestone or to attain. Delaware's plans show an adequate amount of 
emission reductions have occurred beyond those required for ROP, and 
therefore, any surplus emission reductions can be considered as early 
implementation of contingency measures. Surplus emission reductions 
associated with control measures that are not required in the 
nonattainment area by the Act can be used for contingency purposes. 
Delaware has adopted several measures which are available for 
consideration as the early implementation of contingency measures, 
including implementing an annual inspection schedule for the Stage II 
Vapor Recovery Systems, open burning control in New Castle County, a 
combination of controls on various sources in the peak ozone season, as 
well as through improvement of rule effectiveness for the regional 
NOX emission control rule. Therefore, EPA believes the 
requirements of the Act with regard to providing contingency measures 
should the area fail to achieve ROP, have been satisfied for the 
Delaware ozone nonattainment area.

IV. Proposed Action

    EPA is proposing to approve the Post-1996 ROP plans for milestone 
years 1999, 2002 and 2005 for the Delaware portion of the Philadelphia-
Wilmington-Trenton severe ozone nonattainment area submitted on 
December 29, 1997, June 17, 1999, February 3, 2000, and December 20, 
2000. EPA is also proposing to approve the contingency plans for 
failure to meet ROP in the Delaware portion of the Philadelphia severe 
ozone nonattainment area (Kent and New Castle Counties), submitted in 
conjunction with the ROP demonstrations. EPA is also proposing to 
approve the revised enforceable commitments made to the attainment plan 
for the Philadelphia area submitted by DNREC on December 20, 2000 to 
adopt additional measures to strengthen the attainment demonstration, 
and to revise the plan and its motor vehicle emissions budgets using 
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within one year after that model is issued. 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 office listed in the 
ADDRESSES section of this document.

V. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed 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 proposes to approve 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 proposed 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 proposes to approve 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 proposed rule also is not subject to Executive Order 13045 (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. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this proposed 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. 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 proposed rule to approve the Delaware Post-1996 ROP plans does 
not impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Nitrogen dioxide, and Ozone.

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

    Dated: August 24, 2001.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. 01-21925 Filed 8-29-01; 8:45 am]
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