[Federal Register Volume 66, Number 174 (Friday, September 7, 2001)]
[Proposed Rules]
[Pages 46755-46757]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-22617]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE058-1032; FRL-7052-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; One-Hour Ozone Attainment Demonstration Plan for the 
Philadelphia-Wilmington-Trenton Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the State of Delaware. This revision submits an 
analysis and determination that there are no additional reasonably 
available control measures (RACM) available to advance the area's 
attainment date after adoption of all Clean Air Act (Act) required 
measures. On December 16, 1999, EPA proposed to approve, and to 
disapprove in the alternative, the attainment demonstration State 
implementation plan (SIP) for the Philadelphia-Wilmington-Trenton 
severe ozone nonattainment area (the Philadelphia area). Kent and New 
Castle Counties are part of the Philadelphia area. The intended effect 
of this action is to propose approval of a reasonably available control 
measure (RACM) analysis submitted by the State of Delaware. This action 
is being taken in accordance with the Clean Air Act.

DATES: Written comments must be received on or before October 9, 2001.

ADDRESSES: Written comments may be mailed to David L. Arnold, Chief, 
Air Quality Planning and Information Services, 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; 
and the Delaware Department of Natural Resources & Environmental 
Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware 19903.

FOR FURTHER INFORMATION CONTACT: Christopher Cripps, (215) 814-2179. 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. Background

When Did Delaware Submit the RACM Analysis?

    On August 3, 2001, the State of Delaware (Delaware) submitted the 
RACM analysis for the Philadelphia area as a SIP revision.

[[Page 46756]]

II. Analysis of the Delaware Submittal

A. What Are the Requirements for Reasonably Available Control Measures 
(RACM)?

    Section 172(c)(1) of the Act requires SIPs to contain reasonably 
available control measures (RACM) as necessary to provide for 
attainment. EPA has previously provided guidance interpreting the RACM 
requirements of section 172(c)(1). (See 57 FR 13498, 13560, April 16, 
1992.) In that guidance, EPA indicates that potentially available 
control measures, which would not advance the attainment date for an 
area, would not be considered RACM under the Act. EPA concludes that a 
measure would not be reasonably available if it would not advance 
attainment. EPA's guidance also indicates that states should consider 
all potentially available measures to determine whether they are 
reasonably available for implementation in the area, including whether 
or not they would advance the attainment date. Further, the guidance 
calls for states to indicate in their SIP submittals whether measures 
considered are reasonably available or not, and if so the measures must 
be adopted as RACM. Finally, EPA indicated that states could reject 
potential RACM measures either because they would not advance the 
attainment date, would cause substantial widespread and long-term 
adverse impacts, or for various reasons related to local conditions, 
such as economics or implementation concerns. The EPA also issued a 
recent memorandum on this topic, ``Guidance on the Reasonably Available 
Control Measures (RACM) Requirement and Attainment Demonstration 
Submissions for Ozone Nonattainment Areas.'' John S. Seitz, Director, 
Office of Air Quality Planning and Standards. November 30, 1999. Web 
site: http://www.epa.gov/ttn/oarpg/t1pgm.html.

B. How Does This Submission Address the RACM Requirement?

    The analysis submitted by the Delaware on August 3, 2001, as a 
supplement to its attainment demonstration SIP for the Philadelphia 
area, addresses the RACM requirement. Delaware has examined a wide 
variety of potential stationary source and mobile source controls. The 
stationary/area source controls that were considered were limits on 
area source categories not covered by a control technique guideline 
(CTG) (e.g., motor vehicle refinishing, and surface/cleaning 
degreasing); rule effectiveness improvements; expanding the 
applicability of CTG limits to sources smaller than those mandated 
under the CTG); ``beyond RACT'' controls on major stationary sources of 
nitrogen oxides ( NOX); and other potential measures. The 
mobile source control measures considered included measures such as the 
national low emission vehicle program, high occupancy vehicle (HOV) 
lanes; employer based programs; trip reduction ordinances; bicycle and 
pedestrian improvements; programs to restrict extended idling of 
vehicle; early retirement of older motor vehicles; traffic flow 
improvements; and alternative fuel vehicles. Delaware considered an 
extensive list of potential control measures and chose measures for 
implementation which went beyond the Federally mandated controls, which 
were found to be cost effective and technologically feasible. From the 
list of measures considered, the rules and measures adopted and 
submitted by Delaware includes the following:
    (1) Delaware has adopted, and EPA has SIP-approved, a rule for 
vehicle refinishing. The rule includes VOC content limits for motor 
vehicle refinishing coatings at least equivalent to the Federal 
requirements and required compliance with this rule in 1996 versus in 
1998 as required under the Federal rule.
    (2) Delaware has adopted, and EPA has SIP approved, a rule for 
control of VOC emissions from offset lithographic printing operations.
    (3) Delaware has adopted, and EPA has SIP approved, a rule for 
control of VOC emissions from aerospace coating operations with an 
applicability threshold well below that required by the applicable CTG.
    (4) Delaware has adopted, and EPA has SIP approved, a rule for 
control of VOC emissions from graphic arts operations (packaging 
rotogravure, publication rotogravure, or flexographic printing press) 
with an applicability threshold well below that required by the 
applicable CTG.
    (5) Delaware has adopted, and EPA has SIP approved, a rule for 
control of VOC emissions from use of organic cleaning solvents that 
includes requirements that go beyond the applicable CTG for surface 
cleaning and degreasing.
    (6) Delaware has adopted, and EPA has SIP approved, a rule 
requiring the sale of vehicles under the national low-emission vehicle 
program.
    (7) Delaware has adopted, and EPA has SIP approved, a rule to 
implement Phase II NOX controls under the Ozone Transport 
Commission's (OTC) Memorandum of Understanding (MOU). This rule 
established a fixed cap on ozone-season NOX emissions from 
major point sources of NOX. The rule grants each source a 
fixed number of NOX allowances, applies state-wide, and 
requires compliance during the ozone season. The implementation of this 
rule commenced May 1, 1999 in Delaware and reduces NOX 
emissions both inside and outside the Philadelphia area.
    (8) Delaware has adopted, and EPA has SIP approved, a rule to 
implement the NOX SIP call. Delaware's rule requires 
compliance commencing with the start of the 2003 ozone season.
    Other potential measures are not considered to be cost effective or 
have implementation difficulties due to the intensive and costly effort 
that would be involved in regulating numerous, small area source 
categories. These explanations are provided in further detail in the 
docket for this rulemaking. Delaware concluded that a number of 
potential transportation control measures were considered feasible, but 
would not, in aggregate, advance the attainment date.
    The attainment demonstration for the Philadelphia area contains 
modeling using the urban airshed model (UAM) which demonstrates that 
the Philadelphia area cannot attain solely through reductions in the 
Philadelphia nonattainment area. The Philadelphia area relies on 
background reductions of transported ozone to attain the one hour ozone 
standard. EPA established in the NOX SIP Call, promulgated 
on October 27, l998 (63 FR 57356), the appropriate division of control 
responsibilities between the upwind and downwind States under the Act. 
In Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000), the court upheld the 
NOX SIP Call on most issues, although a subsequent order of 
the court delays the implementation date to no later than May 31, 2004. 
EPA is moving forward to implement those portions of the rule that have 
been upheld, ensuring that most--if not all--of the emission reductions 
from the NOX SIP Call assumed in the one hour ozone NAAQS 
attainment demonstration for the Philadelphia area will occur. EPA's 
modeling to determine the region-wide impacts of the NOX SIP 
Call clearly shows that regional transport of ozone and its precursors 
is impacting nonattainment areas several states away, and this analysis 
was upheld by the court. Also, on January 18, 2000 (65 FR 2674), EPA 
promulgated a final rule on petitions filed pursuant to section 126 of 
the Act by eight Northeastern States, that sought to mitigate 
interstate transport of NOX emissions from a number of large 
electric generating units (EGUs) and large industrial boilers and 
turbines. Because the allocation of responsibility for transport was 
not made until late

[[Page 46757]]

1998 and early 2000, the prohibitions on upwind contributions under 
section 110(a)(2)(D) and section 126 could not be enforced prior to 
2003 or 2004. The implementation of the control measures in states 
upwind of the Philadelphia area that are needed to eliminate the 
significant contribution of sources in those states--will not ripen 
until 2003 or 2004 under the NOX SIP call or the section 126 
petitions.
    To demonstrate attainment of the one hour ozone standard, the UAM 
modeling required the Delaware portion of the Philadelphia area to 
achieve emissions levels on the order of 104 tons per day of VOC 
emissions and 138 tons per day of NOX. The ROP plan for 2005 
is projected to get emissions levels down to 96.5 tons per day of VOC 
emissions and 138 tons per day of NOX excluding the benefits 
of the Federal Tier 2/Sulfur rule.\1\ This Tier 2/Sulfur program will 
further reduce emissions in the area staring with the 2004 model year 
vehicles.\2\ Any potential reductions from the remaining potential RACM 
measures in aggregate are relatively small (as documented in the docket 
for this rulemaking) compared to the ROP reductions that will be 
achieved by the 2005 attainment date.
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    \1\ The ROP plan does but the attainment modeling does not 
consider the effects of the Federal Tier 2/Sulfur rule; thus an 
adjustment to exclude the Federal Tier 2/Sulfur rule effects on the 
ROP plan projections is necessary to compare the ROP plan 
projections with the attainment plan modeling.
    \2\ With the Federal Tier 2/Sulfur rule benefits, the 2005 
projections are 95.8 tons per day of VOC emissions and 134.3 tons 
per day of NOX.
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    Thus, EPA concludes that no additional measures could advance the 
attainment date for the Philadelphia area prior to full implementation 
of all upwind and local controls scheduled for implementation by 2005.

III. Opening of the Public Comment Period

    The EPA is opening a comment period for 30 days to take comment on 
Delaware's August 3, 2001 RACM submittal discussed above. EPA is 
proposing to approve Delaware's SIP revision for RACM, which was 
submitted on August 3, 2001, as a supplement to its one hour attainment 
demonstration for the Philadelphia area. 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.

IV. Proposed Action

    EPA is proposing to approve the RACM analysis submitted by the 
State of Delaware on August 3, 2001 as a supplement to its one hour 
attainment demonstration for the Philadelphia area. This revision is 
being proposed under a procedure called parallel processing, whereby 
EPA proposes rulemaking action concurrently with the state's procedures 
for amending its regulations. If the proposed revision is substantially 
changed in areas other than those identified in this action, EPA will 
evaluate those changes and may publish another supplemental notice of 
proposed rulemaking. If no substantial changes are made other than 
those areas cited in this notice, EPA will publish a Final Rulemaking 
Notice on the revisions. The final rulemaking action by EPA will occur 
only after the SIP revision has been adopted by Delaware and submitted 
formally to EPA for incorporation into the SIP.

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 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 regarding Delaware's RACM analysis for the 
Philadelphia area 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, 
Intergovernmental relations, Nitrogen dioxide, Ozone.

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

    Dated: August 31, 2001.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. 01-22617 Filed 9-6-01; 8:45 am]
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