[Federal Register Volume 66, Number 209 (Monday, October 29, 2001)]
[Rules and Regulations]
[Pages 54598-54614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26768]



[[Page 54597]]

-----------------------------------------------------------------------

Part III





Environmental Protection Agency





-----------------------------------------------------------------------



40 CFR Part 52



Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Post-1996 Rate-of-Progress Plans and One-Hour Ozone 
Attainment Demonstration for the Philadelphia-Wilmington-Trenton Ozone 
Nonattainment Area; Final Rule

  Federal Register / Vol. 66 , No. 209 / Monday, October 29, 2001 / 
Rules and Regulations  

[[Page 54598]]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE-1033; FRL-7089-3]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Post-1996 Rate-of-Progress Plans and One-Hour Ozone 
Attainment Demonstration for the Philadelphia-Wilmington-Trenton Ozone 
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is approving the attainment demonstration for the one-hour 
ozone national ambient air quality standard (NAAQS) for the 
Philadelphia-Wilmington-Trenton severe nonattainment area (the 
Philadelphia area) as a revision to the Delaware State Implementation 
Plan (SIP). EPA is also approving the Post-1996 rate-of-progress (ROP) 
plans for the Delaware portion of the Philadelphia area, namely Kent 
and New Castle Counties. These control strategy plans were submitted by 
the Delaware Department of Natural Resources and Environmental Control 
(DNREC). The measures that have been adopted by the State which 
comprise the control strategies have and will result in significant 
emission reductions of volatile organic compounds (VOCs) and oxides of 
nitrogen (NOX) in the Philadelphia area. Two counties in 
Delaware, one county in Maryland, seven counties in New Jersey, and 
five counties in Pennsylvania comprise the Philadelphia area. The 
intended effect of this action is to approve this SIP revision as 
meeting the requirements of the Clean Air Act (CAA or the Act).

DATES: This final rule is effective on November 28, 2001.

ADDRESSES: 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 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 at the EPA 
Region III office above or by e-mail at [email protected]. 

SUPPLEMENTARY INFORMATION: This SUPPLEMENTARY INFORMATION section is 
organized to address the following questions:

I. Background
    A. What Action Is EPA Taking in this Final Rulemaking?
    B. What Previous Action Has Been Proposed on These SIP 
Revisions?
    C. What Were the Conditions for Approval Provided in the Notice 
of Proposed Rulemakings for the Attainment Demonstration?
    D. What Amendments to the Attainment Demonstration SIP did 
Delaware Submit for the Philadelphia Area Since EPA's December 16, 
1999 Proposed Action?
    E. What Did the Supplemental Notices of Proposed Rulemaking 
Cover?
    F. When Did EPA Make a Determination Regarding the Adequacy of 
the Motor Vehicle Emissions Budgets for the Delaware Portion of the 
Philadelphia Area?
    G. What SIP Elements Must be Approved Before Full Approval of 
the Attainment Demonstration Can be Granted?
    H. What Measures are in the Control Strategies for the Post-1996 
Plan and the Attainment Demonstration?
    I. What Are the Approved Transportation Conformity Budgets, and 
What Effects Does This Action Have on Transportation Planning?
    J. What Happens to the Approved 2005 Budgets When States Change 
Their Budgets Using the MOBILE6 Model?
    K. What Comments Were Received on the Proposed Approvals and How 
Has EPA Responded to Them?
II. Response to Comments
III. Final Action
IV. Administrative Requirements

I. Background

A. What Action Is EPA Taking in This Final Rulemaking?

    EPA is fully approving the Post-1996 ROP plans and the one-hour 
attainment demonstration submitted by Delaware for the Philadelphia 
area as meeting the requirements of 182(c)(2) and (d) of the Act. The 
following tables identify submittal dates and amendment dates for the 
Post-1996 ROP plans and the attainment demonstration.

                         Table 1.--Submittal Dates of the Attainment Demonstration Plan
----------------------------------------------------------------------------------------------------------------
                                                      Date                         Summary of content
----------------------------------------------------------------------------------------------------------------
Initial submittal.......................  May 22, 1998...............  Attainment Demonstration Plan.
Amendment...............................  October 8, 1998............  Attainment Demonstration Revised to
                                                                        Supplement Regional Scale Modeling.
Amendment...............................  January 24, 2000...........  Attainment Plan Revised for Budgets to
                                                                        Reflect Tier 2/Sulfur Rule Benefits, and
                                                                        to Include Enforceable Commitments.
Amendment...............................  December 20, 2000..........  Attainment Plan Revised to Amend
                                                                        Enforceable Commitments.
Amendment...............................  October 9, 2001............  Attainment Plan Revised to Include
                                                                        Reasonably Available Control Measures
                                                                        Analysis (RACM).
----------------------------------------------------------------------------------------------------------------


              Table 2.--Submittal Dates of the Post-1996 ROP Plans for Kent and New Castle Counties
----------------------------------------------------------------------------------------------------------------
                                                        Date                              Content
----------------------------------------------------------------------------------------------------------------
Initial submittal.......................  December 29, 1997..............  ROP through 1999.
Amendment...............................  June 17, 1999..................  ROP through 1999.
Initial submittal.......................  February 3, 2000...............  ROP through 2002.
Amendment...............................  December 20, 2000..............  ROP through 2002.
Initial submittal.......................  December 20, 2000..............  ROP through 2005.
----------------------------------------------------------------------------------------------------------------

B. What Previous Action Has Been Proposed on These SIP Revisions?

    In a December 16, 1999 (64 FR 70444) notice of proposed rulemaking 
(the December 16, 1999 NPR), we proposed approval of Delaware's 
attainment demonstration for the Philadelphia area.
    In our December 16, 1999 NPR, we also proposed approval of 
Delaware's enforceable commitment to submit an adopted ROP plan through 
the attainment year for the Delaware portion of the Philadelphia area. 
Delaware has fulfilled that enforceable commitment.
    On August 30, 2001 (66 FR 45800), EPA proposed approval of the 
Post-1996 ROP plans adopted and submitted by

[[Page 54599]]

Delaware to demonstrate ROP from 1996 through the attainment year. In 
that same notice, EPA also proposed approval of Delaware's contingency 
measures for ROP. EPA received no comments on any of the actions it 
proposed to approve in the August 30, 2001 NPR. In this final 
rulemaking action, we are approving the Post-1996 ROP plans submitted 
by Delaware which demonstrate ROP from 1996 through the 2005 attainment 
year and Delaware's contingency measures for ROP.
    On February 22, 2000 (65 FR 8703), EPA published a notice of 
availability on guidance memoranda relating to the ten one-hour ozone 
attainment demonstrations (including the Philadelphia area) proposed 
for approval or conditional approval on December 16, 1999. The guidance 
memoranda are entitled: ``Guidance on Motor Vehicle Emissions Budgets 
in One-Hour Ozone Attainment Demonstrations'' dated November 3, 1999, 
and ``Guidance on the Reasonably Available Control Measures (RACM) 
Requirement and Attainment Demonstration Submissions for Ozone 
Nonattainment Areas'' dated November 30, 1999.
    On July 28, 2000 (65 FR 46383), EPA published a supplemental notice 
of proposed rulemaking (SNPR) on the attainment demonstration. In that 
supplemental notice, we clarified and expanded on two issues relating 
to the motor vehicle emissions budgets in attainment demonstration SIP 
revisions. This supplemental notice is discussed in Section I.E.(1) of 
this document.
    In its August 30, 2001 NPR (66 FR 45800) referenced earlier in this 
document, EPA also proposed approval of Delaware's revisions to its 
2005 attainment plan consisting of commitments to: (1) submit by 
October 31, 2001, additional measures to achieve the additional 
reductions necessary for attainment, and (2) revise the SIP and the 
motor vehicle emissions budgets within a year of the release of 
MOBILE6. EPA received no comments on any of the actions it proposed to 
approve in the August 30, 2001 NPR. In this final rulemaking action, we 
are approving Delaware's revised commitments.
    The comments EPA did receive on the December 16, 1999 (64 FR 70444) 
and July 28, 2000 (65 FR 46383) proposals listed in this section, 
relevant to the Philadelphia area's attainment demonstration, are 
discussed in Sections I. K. and II. of this document.

C. What Were the Conditions for Approval Provided in the Notice of 
Proposed Rulemaking for the Attainment Demonstration?

    On December 16, 1999 (64 FR 70444), EPA proposed approval of the 
attainment demonstration submitted by the State of Delaware for the 
Philadelphia area. Our approval was contingent upon certain actions by 
Delaware. These actions were:
    (1) Adopt and submit adequate motor vehicle emissions budgets.
    (2) Submit a list of control measures that, when implemented, would 
be expected to provide sufficient additional emission reductions to 
further reduce emissions to support the attainment test and a 
commitment that these measures would not involve additional limits on 
highway construction beyond those that could be imposed under the 
submitted motor vehicle emissions budget.
    (3) Adopt and submit a rule(s) for the regional NOX 
reductions consistent with the modeling demonstration.
    (4) Adopt and submit an enforceable commitment, or a reaffirmation 
of existing enforceable commitment to do the following:
    (a) Submit measures by October 31, 2001 for additional emission 
reductions as required in the attainment demonstration test, and for 
additional emission reduction measures developed through the regional 
process; 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 budget by 
October 31, 2001 if additional measures affect the motor vehicle 
emissions inventory.
    (c) Submit revised SIP and motor vehicle emissions budgets one year 
after MOBILE6 is issued.
    (d) Perform a mid-course review by December 31, 2003.

D. What Amendments to the Attainment Demonstration SIP did Delaware 
Submit for the Philadelphia Area Since EPA's December 16, 1999 Proposed 
Action?

    The following is a summary of such submittals which includes the 
submittal dates of revisions, the content of these submissions and 
other pertinent facts regarding these submissions:
    (1) On January 24, 2000, Delaware submitted an addendum to its 
attainment demonstration plan for the Philadelphia area. This submittal 
contains the revised motor vehicle emissions budgets that reflect the 
benefits from EPA's Tier 2/Low Sulfur rule, and enforceable commitments 
to:
    (a) 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;
    (b) Adopt additional measures that can be adopted regionally such 
as in the OTR, or locally;
    (c) Submit a revised SIP and motor vehicle emissions budget by 
October 31, 2001, if the additional measures affect the motor vehicle 
emissions inventory; and
    (d) Conduct a mid-course review by December 31, 2003.
    (2) On December 20, 2000, Delaware submitted an amendment to the 
January 24, 2000 addendum to its attainment demonstration plan for the 
Philadelphia area. This submittal addresses two commitments that were 
not clearly listed in the January 24, 2000 addendum, namely:
    (a) To revise SIP and motor vehicle emission budgets using MOBILE6 
within one year after it is issued.
    (b) To adopt and submit additional control measures for the 
additional emission reductions as required in the attainment 
demonstration test by October 31, 2001.
    (3) On October 9, 2001, the State of Delaware formally submitted a 
supplement to its 2005 attainment demonstration SIP consisting of an 
analysis and determination of RACM.

E. What Did the Supplemental Notices of Proposed Rulemaking Cover?

    (1) On July 28, 2000, EPA published a supplemental notice of 
proposed rulemaking (SNPR) on the attainment demonstration (65 FR 
46383). In that supplemental notice, we clarified and expanded on two 
issues relating to the motor vehicle emissions budgets in this 
attainment demonstration SIP revision.
    (a) First, we proposed a clarification of what occurs if we 
finalize conditional or full approval of this and certain other 
attainment demonstration SIP revisions based upon a state's commitment 
to revise the SIP's motor vehicle emissions budgets in the future. 
Under the proposal, the motor vehicle emissions budgets in the approved 
SIP will apply for transportation conformity purposes only until the 
budgets are revised consistent with the commitment, and we have found 
the new budgets adequate. Once we have found the newly revised budgets 
adequate, then they would apply instead of the previous conditionally 
or fully approved budgets. Normally, revisions to SIP-approved budgets 
cannot be used

[[Page 54600]]

for conformity purposes until we approve those revised budgets as a SIP 
revision. Therefore, we proposed to clarify that when our approval of 
this and certain other one-hour ozone attainment demonstrations is 
based upon a commitment to future revisions to the budget, our approval 
of the budget lasts only until revisions to satisfy those conditions 
are submitted and we find them adequate.
    (b) Second, we proposed that states may opt to commit to revise 
their emissions budgets one year after the release of the MOBILE6 
model, as originally proposed on December 16, 1999. Or, states may 
commit to a new option, i.e., to revise their budgets two years 
following the release of the MOBILE6 model, provided that conformity is 
not determined without adequate MOBILE6-derived SIP budgets during the 
second year. This second option is not germane to Delaware's attainment 
plan for the Philadelphia area because Delaware has submitted an 
enforceable commitment to revise the motor vehicle emissions budgets 
within one year after the official release of the MOBILE6 model.
    (c) In addition, on July 28, 2000 (65 FR at 46383), 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 on the 
December 16, 1999 closed on February 14, 2000. For many of the areas, 
additional information had been placed in the docket close to the time 
or since the initial comment period concluded. In general, these 
materials were identified as consisting of motor vehicle emissions 
budgets, and revised or additional commitments or reaffirmations 
submitted by the states.
    (2) On August 30, 2001 (66 FR 45800), EPA proposed approval of all 
of the Post-1996 ROP plans adopted by Delaware to demonstrate ROP from 
1996 through the attainment year. In that same notice, EPA also 
proposed approval of Delaware's contingency measures for ROP. In that 
August 30, 2001 NPR, EPA also proposed approval of Delaware's revisions 
to its 2005 attainment SIP consisting of commitments to: (1) Submit by 
October 31, 2001, additional measures to achieve the additional 
reductions necessary for attainment, and (2) revise the SIP and the 
motor vehicle emissions budgets within a year of the release of 
MOBILE6. EPA received no comments on any of the actions it proposed to 
approve in the August 30, 2001 NPR.
    (3) On September 7, 2001 (66 FR 46755), EPA published a SNPR on 
Delaware's 2005 attainment demonstration. In that supplemental notice, 
we proposed to approve Delaware's RACM analysis and determination for 
the Philadelphia area. We received no comments on the September 7, 2001 
SNPR.

F. When Did EPA Make a Determination Regarding the Adequacy of the 
Attainment Motor Vehicle Emissions Budgets for the Delaware Portion of 
the Philadelphia Area?

    Delaware submitted a revision to the attainment plan SIP for the 
Philadelphia area on January 24, 2000. This submittal contains revised 
motor vehicle emissions budgets for the attainment year of 2005 that 
reflect the benefits of the Heavy Duty Diesel Engine (HDDE) rule, the 
National Low Emission Vehicle (NLEV) program and the Federal Tier 2/Low 
Sulfur rule.
    We began our adequacy review process on the budgets in the January 
24, 2000 submittal under our adequacy process by a posting on EPA's Web 
site (www.epa.gov/otaq/transp/conform/adequacy.htm) that started a 
public comment period on the adequacy of the motor vehicle emissions 
budgets in the January 24, 2000 SIP revision for the Philadelphia area. 
We prepared a technical support document for our adequacy determination 
that included responses to any public comments received during the 
adequacy process comment period. On May 31, 2000, EPA found the budgets 
of Delaware's attainment demonstration plan for the Philadelphia area 
adequate (Letter from Katz to Tyler dated May 31, 2000). In a June 8, 
2000, Federal Register notice we announced that we had found the 
budgets of the January 24, 2000 submission adequate (65 FR 36440). (The 
proposed approval of the budgets in the January 24, 2000 submission is 
discussed in Section I.B. of this document, and the response to any 
comments received on the proposed approval are in Section II. of this 
document.) Our findings of adequacy and responses to comments can be 
accessed at www.epa.gov/otaq/traq (once there, click on the 
``conformity'' button).
    On December 20, 2000, Delaware submitted, as a formal SIP revision, 
an acceptable commitment to revise the attainment year motor vehicle 
emissions budgets using the MOBILE6 model within one year after the 
release of the MOBILE6 model. As stated earlier in this document, on 
August 30, 2001 (66 FR 45800), EPA published a NPR proposing to approve 
Delaware's revised commitments to revise the SIP and the motor vehicle 
emissions budgets within a year of the release of MOBILE6. EPA received 
no comments on the August 30, 2001 NPR. In this final rulemaking 
action, we are approving Delaware's commitment.

G. What SIP Elements Must be Approved Before Full Approval of the 
Attainment Demonstration Can Be Granted?

    In the December 16, 1999 NPR for Delaware's attainment 
demonstration SIP for the Philadelphia area, EPA noted in Table 4, the 
submission and approval status of many of the control measures or part 
D requirements of the Act for serious and severe areas. The following 
provides the current status of those SIP elements which are 
prerequisite for approval of the attainment demonstration but which 
were not fully approved as of December 16, 1999 (or which were not 
listed in Table 4 in the NPR as fully approved):
    (1) On September 17, 1999, EPA approved Delaware's sanitary 
landfills SIP (64 FR 50453).
    (2) On December 28, 1999, EPA approved Delaware's National Low 
Emission Vehicle (NLEV) SIP (64 FR 72564).
    (3) On March 9, 2000, EPA approved Delaware's NOX budget 
rule consistent with the Ozone Transport Commission's (OTC) Memorandum 
of Understanding (MOU) Phase II (65 FR 12481).
    (4) On February 7, 2001, EPA approved Delaware's New Source Review 
Rule (66 FR 9209).
    (5) On May 17, 2001, EPA approved Delaware's NOX trading 
rule consistent with the NOX SIP call (66 FR 27549).
    (6) On June 14, 2001, EPA approved Delaware's NOX RACT 
rule (66 FR 32231).

H. What Measures Are in the Control Strategy for the Post-1996 Plan and 
the Attainment Demonstration?

[[Page 54601]]



Table 3.--Control Measures in the One-Hour Ozone Post-1996 ROP and Attainment Demonstration for the Philadelphia
                                            Ozone Nonattainment Area
----------------------------------------------------------------------------------------------------------------
                                                                    Credited in Post-1996
        Control measure                   Type of measure               plan for which          Credited in
                                                                       milestone years        attainment plan
----------------------------------------------------------------------------------------------------------------
Enhanced Inspection &           Approved SIP......................  Yes--1999 through      Yes
 Maintenance.                                                        2005.
Federal Motor Vehicle Control   Federal...........................  Tier 1--1999 through   Tier 1 and 2
 program.                                                            2005.
NLEV \1\......................  Approved SIP opt-in...............  Yes--1999 through      Yes
                                                                     2005.
Reformulated Gasoline (Phase 1  Federal...........................  Phase 1--1999 Phase    Phase 2
 & 2).                                                               2--2002 and 2005.
Federal Non-road Gasoline       Federal...........................  Yes--1999 through      Yes
 Engine standards.                                                   2005.
Federal Non-road Heavy Duty     Federal...........................  Yes--1999 through      Yes
 diesel engine standards.                                            2005.
Rail Road Locomotive Controls.  Federal...........................  Yes--2002 and 2005...  Yes
NOX RACT......................  Approved SIP......................  Yes--1999 through      Yes
                                                                     2005.
OTR Regional NOX MOU..........  Approved SIP......................  Yes--1999 and 2002...  NOX SIP Call
Federal NOX SIP Call Regional   Approved SIP......................  Yes--2005............  Yes
 Control.
Non-CTG RACT to 50 tpy........  Approved SIP......................  Yes--1999 through      Yes
                                                                     2005.
Stage II Vapor Recovery &.....  Approved SIP......................  Yes--1999 through      Yes
                                                                     2005.
On-board Refueling Vapor        Federal...........................
 Recovery (ORVR).
AIM Surface Coatings..........  Federal...........................  Yes--2002 and 2005...  Yes
Consumer & Commercial products  Federal...........................  Yes--2002 and 2005...  Yes
Autobody Refinishing..........  Federal/Approved SIP..............  Yes--1999 through      Yes
                                                                     2005.
Industrial Cleaning Solvents..  Approved SIP......................  Yes--1999 through      Yes
                                                                     2005.
Open Burning Ban..............  Approved SIP......................  Yes--1999 through      Yes
                                                                     2005.
Stage I Vapor Recovery........  Approved SIP......................  Yes--1999 through      Yes
                                                                     2005.
Offset Lithography............  Approved SIP......................  Yes--1999 through      Yes
                                                                     2005.
Heavy Duty Diesel Engines (On-  Federal...........................  Yes--2005............  Yes
 road).
VOC RACT......................  Approved SIP......................  Yes--1999 through      Yes
                                                                     2005.
Sanitary Landfills............  Approved SIP......................  Yes--1999 through      Yes
                                                                     2005.
Benzene Waste Rule............  Federal...........................  Yes--1999 through      Yes
                                                                     2005.
----------------------------------------------------------------------------------------------------------------
\1\ To the extent NLEV not superceded by Tier 2.

I. What Are the Approved Transportation Conformity Budgets, and What 
Effects Does This Action Have on Transportation Planning?

(1) What Are the Approved Transportation Conformity Budgets in the Post 
1996 ROP Plans and the Attainment Demonstration?
    EPA has determined that the budgets in the Post-1996 ROP plans and 
the attainment demonstration plan are adequate, and is approving these 
budgets in this final action. These Delaware plans establish separate 
VOC and NOX budgets for Kent and New Castle Counties, in the 
Philadelphia area (these are commonly referred to as sub-budgets). The 
motor vehicle emissions budgets that EPA is approving for each of the 
two counties are listed in Table 4 by type of control strategy SIP, the 
amounts in tons per day (TPD), the year associated with the budgets, 
and the effective date of EPA's adequacy determination.

    Table 4.--Transportation Conformity Budgets of Delaware's Control Strategy SIPs for the Philadelphia Area
----------------------------------------------------------------------------------------------------------------
                                         Kent County     New Castle
                                      ----------------     County
 Type of control strategy SIP   Year                  ----------------  Effective date of adequacy determination
                                         VOC     NOX     VOC     NOX
----------------------------------------------------------------------------------------------------------------
Post 1996 ROP Plan...........    1999    7.55   11.17   22.49   29.41  April 29, 1999 (64 FR 31217, published
                                                                        June 10, 1999).
Post 1996 ROP Plan...........    2002    6.30    9.81   18.44   27.29  June 23, 2000, (65 FR 36440, published
                                                                        June 8, 2000).
Post 1996 ROP Plan...........    2005    4.84    7.90   14.76   22.92  May 2, 2001 (66 FR 19769, published April
                                                                        17, 2001).
Attainment Demonstration.....    2005    4.84    7.90   14.76   22.92  June 23, 2000, (65 FR 36440, published
                                                                        June 8, 2000).
----------------------------------------------------------------------------------------------------------------

    EPA has concluded that these SIP revisions meet the requirements of 
the Act applicable to the type of control strategy SIP, that is, 
demonstrates attainment or ROP with the applicable budgets and contains 
the measures necessary to support these budgets.
(2) Is a Requirement To Redetermine Conformity Within 18-months Under 
Section 93.104 of the Conformity Rule Triggered?
    Our conformity rule establishes the frequency by which 
transportation plans and transportation improvement programs must be 
found to conform to the SIP and includes trigger events tied to both 
submittal and approval of a SIP [40 CFR 93.104(e)]. Both initial 
submission and initial approval trigger a redetermination of 
conformity. This final rule has the effect of approving motor vehicle 
emissions budgets contained in the attainment demonstration and the 
Post-1996 ROP plans. We are advising affected transportation planning 
agencies that this final approval of the budgets listed in Table 4 will 
require a redetermination that existing transportation plans and TIPs 
conform

[[Page 54602]]

within 18 months of the effective date listed in the DATES section of 
this document. See 40 CFR 93.104(e).

J. What Happens to the Approved 2005 Budgets When States Change Their 
Budgets Using the MOBILE6 Model?

    All states whose attainment demonstration includes the effects of 
the Tier 2/Low Sulfur program have committed to revise and resubmit 
their motor vehicle emissions budgets after EPA releases the MOBILE6 
model. On December 20, 2000, Delaware submitted a commitment to revise 
the 2005 motor vehicle budgets in the attainment demonstration within 
one year of EPA's release of the MOBILE6 model. In this final 
rulemaking action, EPA is approving, as a SIP revision, Delaware's 
commitment to revise the 2005 motor vehicle budgets in the attainment 
demonstration within one year of EPA's release of the MOBILE6 model. If 
Delaware fails to meet its commitment to submit revised budgets using 
the MOBILE6 model, EPA could make a finding of failure to implement the 
SIP, which would start a sanctions clock under section 179 of the Act.
    As we proposed in our July 28, 2000 SNPR (65 FR 46383), today's 
final approval of the budgets contained in the 2005 attainment plan 
will be effective for conformity purposes only until such time as 
revised motor vehicle emissions budgets are submitted (pursuant to the 
commitment to submit revised budgets using the MOBILE6 model within one 
year of EPA's release of that model) and we have found those revised 
budgets adequate. We are only approving the attainment demonstration 
and its current budgets because Delaware has provided an enforceable 
commitment to revise the budgets using the MOBILE6 model within one 
year of EPA's release of that model. Therefore, we are limiting the 
duration of our approval of the current budgets only until such time as 
the revised budgets are found adequate. Those revised budgets will be 
more appropriate than the budgets we are approving for conformity 
purposes for the time being.
    Similarly, EPA is only approving the 2005 attainment demonstration 
and its current budgets because Delaware has provided an enforceable 
commitment to submit new budgets as a revision to the attainment SIP 
consistent with any new measures submitted to fill any shortfall, if 
the additional control measures affect on-road motor vehicle emissions. 
Therefore, EPA is limiting the duration of our approval of the current 
budgets only until such time as any such revised budgets are found 
adequate. Those revised budgets will be more appropriate than the 
budgets we are approving for conformity purposes for the time being.

K. What Comments Were Received on the Proposed Approvals and How Has 
EPA Responded to Them?

    EPA received comments from the public on the Notice of Proposed 
Rulemaking (NPR) published on December 16, 1999 (64 FR 70444) for 
Delaware's ozone attainment demonstration for the Philadelphia area. 
Comments were received from Robert E. Yuhnke on behalf of Environmental 
Defense and Natural Resources Defense Council and from the Midwest 
Ozone Group.
    EPA also received comments from the public on the supplemental 
notice of proposed rulemaking published on July 28, 2000 (65 FR 46383), 
in which EPA clarified and expanded on two issues relating to the motor 
vehicle emissions budgets in the attainment demonstration SIPs. 
Comments were received from Environmental Defense and from ELM 
Packaging Co.
    As previously noted, EPA received no comments on either its August 
30, 2001 (66 FR 45800) or September 7, 2001 (66 FR 46755) proposed 
actions as discussed in Section I.E. of this document.

II. Response to Comments

    The following discussion summarizes and responds to the comments 
received on EPA's December 16, 1999 (64 FR 70444) and July 28, 2000 (65 
FR 46383) proposals to approve Delaware's 2005 attainment 
demonstration. These are the only proposed actions for which we 
received comments.

A. Attainment Demonstrations--Weight of Evidence

    Comment: The weight of evidence approach does not demonstrate 
attainment or meet the Act requirements for a modeled attainment 
demonstration. Commenters added several criticisms of various technical 
aspects of the weight of evidence approach, including certain specific 
applications of the approach to particular attainment demonstrations. 
These comments are discussed in the following response.
    Response: Under section 182(c)(2) and (d) of the Act, serious and 
severe ozone nonattainment areas were required to submit by November 
15, 1994, demonstrations of how they would attain the one-hour 
standard. Section 182(c)(2)(A) provides that ``[t]his attainment 
demonstration must be based on photochemical grid modeling or any other 
analytical method determined by the Administrator, in the 
Administrator's discretion, to be at least as effective.'' As described 
in more detail below, EPA allows states to supplement their 
photochemical modeling results, with additional evidence designed to 
account for uncertainties in the photochemical modeling, to demonstrate 
attainment. This approach is consistent with the requirement of section 
182(c)(2)(A) that the attainment demonstration ``be based on 
photochemical grid modeling,'' because the modeling results constitute 
the principal component of EPA's analysis, with supplemental 
information designed to account for uncertainties in the model. This 
interpretation and application of the photochemical modeling 
requirement of section 182(c)(2)(A) finds further justification in the 
broad deference Congress granted EPA to develop appropriate methods for 
determining attainment, as indicated in the last phrase of section 
182(c)(2)(A).
    The flexibility granted to EPA under section 182(c)(2)(A) is 
reflected in the regulations EPA promulgated for modeled attainment 
demonstrations. These regulations provide, ``The adequacy of a control 
strategy shall be demonstrated by means of applicable air quality 
models, data bases, and other requirements specified in [40 CFR part 
51, Appendix W] (Guideline on Air Quality Models).''\1\ 40 CFR 
51.112(a)(1). However, the regulations further provide, ``Where an air 
quality model specified in appendix W * * * is inappropriate, the model 
may be modified or another model substituted [with approval by EPA, and 
after] notice and opportunity for public comment. * * *'' Appendix W, 
in turn, provides that, ``The Urban Airshed Model (UAM) is recommended 
for photochemical or reactive pollutant modeling applications involving 
entire urban areas,'' but further refers to EPA's modeling guidance for 
data requirements and procedures for operating the model. 40 CFR part 
51, App. W section 6.2.1.a. The modeling guidance discusses the data 
requirements and operating procedures, as well as interpretation of 
model results as they relate to the attainment demonstration. This 
provision references guidance published in 1991, but EPA envisioned the 
guidance would change as we gained experience with model applications, 
which is why the guidance is referenced, but does not appear, in

[[Page 54603]]

Appendix W. With updates in 1996 and 1999, the evolution of EPA's 
guidance has led us to use both the photochemical grid model, and 
additional analytical methods approved by EPA.
---------------------------------------------------------------------------

    \1\ The August 12, 1996 version of ``Appendix W to Part 51--
Guideline on Air Quality Models'' was the rule in effect for these 
attainment demonstrations. EPA is proposing updates to this rule, 
that will not take effect until the rulemaking process for them is 
complete.
---------------------------------------------------------------------------

    The modeled attainment test compares model predicted one-hour daily 
maximum ozone concentrations in all grid cells for the attainment year 
to the level of the NAAQS. The results may be interpreted through 
either of two modeled attainment or exceedance tests: the deterministic 
test or the statistical test. Under the deterministic test, a predicted 
concentration above 0.124 parts per million (ppm) ozone indicates that 
the area is expected to exceed the standard in the attainment year and 
a prediction at or below 0.124 ppm indicates that the area is expected 
to not exceed the standard. Under the statistical test, attainment is 
demonstrated when all predicted (i.e., modeled) one-hour ozone 
concentrations inside the modeling domain are at, or below, an 
acceptable upper limit above the NAAQS permitted under certain 
conditions (depending on the severity of the episode modeled).\2\
---------------------------------------------------------------------------

    \2\ Guidance on the Use Of Modeled Results to Demonstrate 
Attainment of the Ozone NAAQS EPA-454/B-95-007, June 1996.
---------------------------------------------------------------------------

    In 1996, EPA issued guidance \3\ to update the 1991 guidance 
referenced in 40 CFR part 51, App. W, to make the modeled attainment 
test more closely reflect the form of the NAAQS (i.e., the statistical 
test described above), to consider the area's ozone design value and 
the meteorological conditions accompanying observed exceedances, and to 
allow consideration of other evidence to address uncertainties in the 
modeling databases and application. When the modeling does not 
conclusively demonstrate attainment, EPA has concluded that additional 
analyses may be presented to help determine whether the area will 
attain the standard. As with other predictive tools, there are inherent 
uncertainties associated with air quality modeling and its results. The 
inherent imprecision of the model means that it may be inappropriate to 
view the specific numerical result of the model as the only determinant 
of whether the SIP controls are likely to lead to attainment. The EPA's 
guidance recognizes these limitations, and provides a means for 
considering other evidence to help assess whether attainment of the 
NAAQS is likely to be achieved. The process by which this is done is 
called a weight of evidence (WOE) determination. Under a WOE 
determination, the state can rely on, and EPA will consider in addition 
to the results of the modeled attainment test, other factors such as 
other modeled output (e.g., changes in the predicted frequency and 
pervasiveness of one-hour ozone NAAQS exceedances, and predicted change 
in the ozone design value); actual observed air quality trends (i.e., 
analyses of monitored air quality data); estimated emissions trends; 
and the responsiveness of the model predictions to further controls.
---------------------------------------------------------------------------

    \3\ Ibid.
---------------------------------------------------------------------------

    In 1999, EPA issued additional guidance \4\ that makes further use 
of model results for base case and future emission estimates to predict 
a future design value. This guidance describes the use of an additional 
component of the WOE determination, which requires, under certain 
circumstances, additional emission reductions that are or will be 
approved into the SIP, but that were not included in the modeling 
analysis, that will further reduce the modeled design value. An area is 
considered to monitor attainment if each monitor site has air quality 
observed ozone design values (4th highest daily maximum ozone using the 
three most recent consecutive years of data) at or below the level of 
the standard. Therefore, it is appropriate for EPA, when making a 
determination that a control strategy will provide for attainment, to 
determine whether or not the model-predicted future design value is 
expected to be at or below the level of the standard. Since the form of 
the one-hour NAAQS allows exceedances, it did not seem appropriate for 
EPA to require the test for attainment to be ``no exceedances'' in the 
future model predictions.
---------------------------------------------------------------------------

    \4\ ``Guidance for Improving Weight of Evidence Through 
Identification of Additional Emission Reductions, Not Modeled.'' 
U.S. Environmental Protection Agency, Office of Air Quality Planning 
and Standards, Emissions, Monitoring, and Analysis Division, Air 
Quality Modeling Group, Research Triangle Park, NC 27711. November 
1999. Web site: http://www.epa.gov/ttn/scram.
---------------------------------------------------------------------------

    The method outlined in EPA's 1999 guidance uses the highest 
measured design value across all sites in the nonattainment area for 
each of three years. These three ``design values'' represent the air 
quality observed during the time period used to predict ozone for the 
base emissions. This is appropriate because the model is predicting the 
change in ozone from the base period to the future attainment date. The 
three yearly design values (highest across the area) are averaged to 
account for annual fluctuations in meteorology. The result is an 
estimate of an area's base year design value. The base year design 
value is multiplied by a ratio of the peak model predicted ozone 
concentrations in the attainment year (i.e., average of daily maximum 
concentrations from all days modeled) to the peak model predicted ozone 
concentrations in the base year (i.e., average of daily maximum 
concentrations from all days modeled). The result is an attainment year 
design value based on the relative change in peak model predicted ozone 
concentrations from the base year to the attainment year. Modeling 
results also show that emission control strategies designed to reduce 
areas of peak ozone concentrations generally result in similar ozone 
reductions in all core areas of the modeling domain, thereby providing 
some assurance of attainment at all monitors.
    In the event that the attainment year design value is above the 
standard, the 1999 guidance provides a method for identifying 
additional emission reductions, not modeled, which at a minimum provide 
an estimated attainment year design value at the level of the standard. 
This step uses a locally derived factor which assumes a linear 
relationship between ozone and the precursors.
    A commenter criticized the 1999 guidance as flawed on grounds that 
it allows the averaging of the three highest air quality sites across a 
region, whereas EPA's 1991 and 1996 modeling guidance requires that 
attainment be demonstrated at each site. This has the effect of 
allowing lower air quality concentrations to be averaged against higher 
concentrations thus reducing the total emission reduction needed to 
attain at the higher site. The commenter does not appear to have 
described the guidance accurately. The guidance does not recommend 
averaging across a region or spatial averaging of observed data. The 
guidance does recommend determination of the highest site in the region 
for each of the three-year periods, determined by the base year 
modeled. For example, if the base year is 1990, it is the amount of 
emissions in 1990 that must be adjusted or evaluated (by accounting for 
growth and controls) to determine whether attainment results. These 
1990 emissions would contribute to three design value periods (1988-90, 
1989-91 and 1990-92).
    Under the approach of the guidance document, EPA determined the 
design value for each of those three-year periods, and then averaged 
those three design values, to determine the base design value. This 
approach is appropriate because, as just noted, the 1990 emissions 
contributed to each of those periods, and there is no reason to believe 
the 1990 (episodic) emissions resulted in the highest or lowest of the

[[Page 54604]]

three design values. Averaging the three years is beneficial for 
another reason: It allows consideration of a broader range of 
meteorological conditions-those that occurred throughout the 1988-1992 
period, rather than the meteorology that occurs in one particular year 
or even one particular ozone episode within that year. Furthermore, EPA 
relied on three-year averaging only for purposes of determining one 
component, i.e.--the small amount of additional emission reductions not 
modeled--of the WOE determination. The WOE determination, in turn, is 
intended to be part of a qualitative assessment of whether additional 
factors (including the additional emissions reductions not modeled), 
taken as a whole, indicate that the area is more likely than not to 
attain.
    A commenter criticized the component of this WOE factor that 
estimates ambient improvement because it does not incorporate complete 
modeling of the additional emissions reductions. However, the 
regulations do not mandate, nor does EPA guidance suggest, that states 
must model all control measures being implemented. Moreover, a 
component of this technique-the estimation of future design value--
should be considered a model predicted estimate. Therefore, results 
from this technique are an extension of ``photochemical grid'' modeling 
and are consistent with section 182(c)(2)(A). Also, a commenter 
believes that EPA has not provided sufficient opportunity to evaluate 
the calculations used to estimate additional emission reductions. EPA 
provided a full 60-day period for comment on all aspects of the 
proposed rule. EPA has received several comments on the technical 
aspects of the approach and the results of its application, as 
discussed above and in the responses to the individual SIPs.
    A commenter states that application of the method of attainment 
analysis used for the December 16, 1999 NPRs will yield a lower control 
estimate than if we relied entirely on reducing maximum predictions in 
every grid cell to less than or equal to 124 ppb on every modeled day. 
However, the commenter's approach may overestimate needed controls 
because the form of the standard allows up to 3 exceedances in 3 years 
in every grid cell. If the model over predicts observed concentrations, 
predicted controls may be further overestimated. EPA has considered 
other evidence, as described above through the weight of evidence 
determination.
    When reviewing a SIP, EPA must make a determination that the 
control measures adopted are reasonably likely to lead to attainment. 
Reliance on the WOE factors allows EPA to make this determination based 
on a greater body of information presented by the states and available 
to EPA. This information includes model results for the majority of the 
control measures. Although not all measures were modeled, EPA reviewed 
the model's response to changes in emissions as well as observed air 
quality changes to evaluate the impact of a few additional measures, 
not modeled. EPA's decision was further strengthened by each state's 
commitment to check progress towards attainment in a mid-course review 
and to adopt additional measures, if the anticipated progress is not 
being made.
    A commenter further criticized EPA's technique for estimating the 
ambient impact of additional emissions reductions not modeled on 
grounds that EPA employed a ``rollback'' modeling technique that, 
according to the commenter, is precluded under EPA regulations. The 
commenter explained that 40 CFR part 51, App. W section 6.2.1.e. 
provides, ``Proportional (rollback/forward) modeling is not an 
acceptable procedure for evaluating ozone control strategies.'' Section 
14.0 of Appendix W defines ``rollback'' as ``a simple model that 
assumes that if emissions from each source affecting a given receptor 
are decreased by the same percentage, ambient air quality 
concentrations decrease proportionately.'' Under this approach if 20 
percent improvement in ozone is needed for the area to reach 
attainment, it is assumed a 20 percent reduction in VOC would be 
required. There was no approach for identifying NOX 
reductions.
    The ``proportional rollback'' approach is based on a purely 
empirically/mathematically derived relationship. EPA did not rely on 
this approach in its evaluation of the attainment demonstrations. The 
prohibition in Appendix W applies to the use of a rollback method which 
is empirically/mathematically derived and independent of model 
estimates or observed air quality and emissions changes as the sole 
method for evaluating control strategies. For the demonstrations under 
proposal, EPA used a locally derived (as determined by the model and/or 
observed changes in air quality) ratio of change in emissions to change 
in ozone to estimate additional emission reductions to achieve an 
additional increment of ambient improvement in ozone.
    For example, if monitoring or modeling results indicate that ozone 
was reduced by 25 ppb during a particular period, and that VOC and 
NOX emissions fell by 20 tons per day and 10 tons per day 
respectively during that period, EPA developed a ratio of ozone 
improvement related to reductions in VOC and NOX. This 
formula assumes a linear relationship between the precursors and ozone 
for a small amount of ozone improvement, but it is not a ``proportional 
rollback'' technique. Further, EPA uses these locally derived 
adjustment factors as a component to estimate the extent to which 
additional emissions reductions--not the core control strategies--would 
reduce ozone levels and thereby strengthen the weight of evidence test. 
EPA uses the UAM to evaluate the core control strategies. This limited 
use of adjustment factors is more technically sound than the 
unacceptable use of proportional rollback to determine the ambient 
impact of the entire set of emissions reductions required under the 
attainment SIP.
    The limited use of adjustment factors is acceptable for practical 
reasons: it obviates the need to expend more time and resources to 
perform additional modeling. In addition, the adjustment factor is a 
locally derived relationship between ozone and its precursors based on 
air quality observations and/or modeling which is more consistent with 
recommendations referenced by Appendix W, and does not assume a direct 
proportional relationship between ozone and its precursors. Lastly, the 
requirement that areas perform a mid-course review (a check of progress 
toward attainment), provides a margin of safety.
    A commenter expressed concerns that EPA used a modeling technique 
(proportional rollback) that was expressly prohibited by 40 CFR part 
51, Appendix W, without expressly proposing to do so in a notice of 
proposed rulemaking. However, the commenter is mistaken. As explained 
above, EPA did not use or rely upon a proportional rollback technique 
in this rulemaking, but used UAM to evaluate the core control 
strategies and then applied its WOE guidance. Therefore, because EPA 
did not use an ``alternative model'' to UAM, it did not trigger an 
obligation to modify Appendix W. Furthermore, EPA did propose to use 
the November 1999 guidance, ``Guidance for Improving Weight of Evidence 
Through Identification of Additional Emission Reductions, Not 
Modeled,'' in the December 16, 1999 NPR and has responded to all 
comments received on that guidance elsewhere in this document.

[[Page 54605]]

    A commenter also expressed concern that EPA applied unacceptably 
broad discretion in fashioning and applying the WOE determinations. For 
all of the attainment submittals proposed for approval in December 1999 
concerning serious and severe ozone nonattainment areas, EPA first 
reviewed the UAM results. In all cases, the UAM results did not pass 
the deterministic test. In two cases--Milwaukee and Chicago--the UAM 
results passed the statistical test; in the rest of the cases, the UAM 
results failed the statistical test. The UAM has inherent limitations 
that, in EPA's view, were manifest in all these cases. These 
limitations include: (1) only selected time periods were modeled, not 
the entire three-year period used as the definitive means for 
determining an area's attainment status; (2) there are inherent 
uncertainties in the model formulation and model inputs such as hourly 
emission estimates, emissions growth projections, biogenic emission 
estimates, and derived wind speeds and directions. As a result, for all 
areas, even Milwaukee and Chicago, EPA examined additional analyses to 
indicate whether additional SIP controls would yield meaningful 
reductions in ozone values. These analyses did not point to the need 
for additional emission reductions for Springfield, Greater 
Connecticut, Metropolitan Washington, DC, Chicago and Milwaukee, but 
did point to the need for additional reductions, in varying amounts, in 
the other areas. As a result, the other areas submitted control 
requirements to provide the indicated level of emissions reductions. 
EPA applied the same methodology in these areas, but because of 
differences in the application of the model to the circumstances of 
each individual area, the results differed on a case-by-case basis.
    As another WOE factor, for areas within the NOX SIP call 
domain, results from the EPA regional modeling for NOX 
controls as well as the Tier 2/Low Sulfur program were considered. 
Also, for all of the areas, EPA considered recent changes in air 
quality and emissions. For some areas, this was helpful because there 
were emission reductions in the most recent years that could be related 
to observed changes in air quality, while for other areas there 
appeared to be little change in either air quality or emissions. For 
areas in which air quality trends, associated with changes in emissions 
levels, could be discerned, these observed changes were used to help 
decide whether or not the emission controls in the plan would provide 
progress towards attainment.
    The commenter also complained that EPA has applied the WOE 
determinations to adjust modeling results only when those results 
indicate nonattainment, and not when they indicate attainment. First, 
we disagree with the premise of this comment: EPA does not apply the 
WOE factors to adjust model results. EPA applies the WOE factors as 
additional analysis to compensate for uncertainty in the air quality 
modeling. Second, EPA has applied WOE determinations to all of the 
attainment demonstrations proposed for approval in December 1999. 
Although for most of them, the air quality modeling results by 
themselves indicated nonattainment, for two metropolitan areas--Chicago 
and Milwaukee, including parts of the States of Illinois, Indiana, and 
Wisconsin, the air quality modeling did indicate attainment on the 
basis of the statistical test.
    The commenter further criticized EPA's application of the WOE 
determination on grounds that EPA ignores evidence indicating that 
continued nonattainment is likely, such as, according to the commenter, 
monitoring data indicating that ozone levels in many cities during 1999 
continue to exceed the NAAQS by margins as wide or wider than those 
predicted by the UAM. EPA has reviewed the evidence provided by the 
commenter. The 1999 monitor values do not constitute substantial 
evidence indicating that the SIPs will not provide for attainment. 
These values do not reflect either the local or regional control 
programs which are scheduled for implementation in the next several 
years. Once implemented, these controls are expected to lower emissions 
and thereby lower ozone values. Moreover, there is little evidence to 
support the statement that ozone levels in many cities during 1999 
continue to exceed the NAAQS by margins as wide or wider than those 
predicted by the UAM. Since areas did not model 1999 ozone levels using 
1999 meteorology and 1999 emissions which reflect reductions 
anticipated by control measures, that are or will be approved into the 
SIP, there is no way to determine how the UAM predictions for 1999 
compare to the 1999 air quality. Therefore, we can not determine 
whether or not the monitor values exceed the NAAQS by a wider margin 
than the UAM predictions for 1999. In summary, there is little evidence 
to support the conclusion that high exceedances in 1999 will continue 
to occur after adopted control measures are implemented.
    In addition, the commenter argued that in applying the WOE 
determinations, EPA ignored factors showing that the SIPs under-predict 
future emissions, and the commenter included as examples certain mobile 
source emissions sub-inventories. EPA did not ignore possible under-
prediction in mobile emissions. EPA is presently evaluating mobile 
source emissions data as part of an effort to update the computer model 
for estimating mobile source emissions. EPA is considering various 
changes to the model, and is not prepared to conclude at this time that 
the net effect of all these various changes would be to increase or 
decrease emissions estimates. For attainment demonstration SIPs that 
rely on the Tier 2/Low Sulfur program for attainment or otherwise 
(i.e., reflect these programs in their motor vehicle emissions 
budgets), states have committed to revise their motor vehicle emissions 
budgets after the MOBILE6 model is released. EPA will work with states 
on a case-by-case basis if the new emission estimates raise issues 
about the sufficiency of the attainment demonstration. If analysis 
indicates additional measures are needed, EPA will take the appropriate 
action.

B. Reliance on the NOX SIP Call and Tier II

    Comment: Several commenters stated that given the uncertainty 
surrounding the NOX SIP Call at the time of EPA's proposals 
on the attainment demonstrations, there is no basis for the conclusion 
reached by EPA that states should assume implementation of the 
NOX SIP Call, or rely on it as a part of their 
demonstrations. One commenter claims that there were errors in the 
emissions inventories used for the NOX SIP Call Supplemental 
Notice (SNPR) and that these inaccuracies were carried over to the 
modeling analyses, estimates of air quality based on that modeling, and 
estimates of EPA's Tier II tailpipe emissions reduction program not 
modeled in the demonstrations. Thus, because of the inaccuracies in the 
inventories used for the SIP Call, the attainment demonstration 
modeling is also flawed. Finally, one commenter suggests that modeling 
data demonstrates that the benefits of imposing NOX SIP Call 
controls are limited to areas near the sources controlled.
    Response: These comments were submitted prior to several court 
decisions largely upholding EPA's NOX SIP Call. Michigan v. 
EPA, 213 F.3d 663 (D.C. Cir. 2000), cert. denied, __ U.S. __, 121 S.Ct. 
1225, 149 L.Ed. 135 (2001); Appalachian Power v. EPA, 251 F.3d 1026 
(D.C. Cir. 2001). In those cases, the court largely upheld the 
NOX SIP Call. Although a few issues were vacated or remanded 
to EPA for further

[[Page 54606]]

consideration, these issues do not concern the accuracy of the emission 
inventories relied on for purposes of the SIP Call. Moreover, contrary 
to the commenter's suggestion, the SIP Call modeling data bases were 
not used to develop estimates of reductions from the Tier II program 
for the severe-area one-hour attainment demonstrations. Accordingly, 
the commenter's concerns that inaccurate inventories for the SIP Call 
modeling lead to inaccurate results for the severe-area one-hour 
attainment demonstrations are inapposite.
    The remanded issues do affect the ability of EPA and the states to 
achieve the full level of the SIP Call reductions by May 2003. First, 
the court vacated the rule as it applied to two states--Missouri and 
Georgia--and also remanded the definition of a co-generator and the 
assumed emission limit for internal combustion engines. EPA has 
informed the states that until EPA addresses the remanded issues, EPA 
will accept SIPs that do not include those small portions of the 
emission budget. However, EPA is planning to propose a rule shortly to 
address the remanded issues and ensure that emission reductions from 
these states and the emission reductions represented by the two source 
categories are addressed in time to benefit the severe nonattainment 
areas. Also, although the court in the Michigan case subsequently 
issued an order delaying the implementation date to no later than May 
31, 2004, and the Appalachian Power case remanded an issue concerning 
computation of the EGU growth factor, it is EPA's view that states 
should assume that the SIP Call reductions will occur in time to ensure 
attainment in the severe nonattainment areas. Both EPA and the states 
are moving forward to implement the SIP Call.
    Finally, contrary to the commenter's conclusions, 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. This analysis was 
upheld by the court in Michgan.

C. Attainment and Rate-of-Progress Demonstrations--Approval of 
Demonstrations that Rely on State Commitments or State Rules for 
Emission Limitations to Lower Emissions in the Future not Yet Adopted 
by the State and/or Approved by EPA

    Comment: Several commenters disagreed with EPA's proposal to 
approve states' attainment and ROP demonstrations because, (a) not all 
of the emissions reductions assumed in the demonstrations have actually 
taken place, (b) are reflected in rules yet to be adopted and approved 
by a state and approved by EPA as part of the SIP, (c) are credited 
illegally as part of a demonstration because they are not approved by 
EPA as part of the SIP, or (d) the commenter maintains that EPA does 
not have authority to accept enforceable state commitments to adopt 
measures in the future in lieu of current adopted measures to fill a 
near-term shortfall of reductions.
    Response: EPA disagrees with the comments, and believes--consistent 
with past practice--that the Act allows approval of enforceable 
commitments that are limited in scope where circumstances exist that 
warrant the use of such commitments in place of adopted measures.\5\ 
Once EPA determines that circumstances warrant consideration of an 
enforceable commitment, EPA believes that three factors should be 
considered in determining whether to approve the enforceable 
commitment: (1) Whether the commitment addresses a limited portion of 
the statutorily-required program; (2) whether the state is capable of 
fulfilling its commitment; and (3) whether the commitment is for a 
reasonable and appropriate period of time.
---------------------------------------------------------------------------

    \5\ These commitments are enforceable by the EPA and citizens 
under, respectively, sections 113 and 304 of the CAA. In the past, 
EPA has approved enforceable commitments and courts have enforced 
these actions against states that failed to comply with those 
commitments. See, e.g., American Lung Ass'n of N.J. v. Kean, 670 F. 
Supp. 1285 (D.N.J. 1987), aff'd, 871 F.2d 319 (3rd Cir. 1989); NRDC 
v. N.Y. State Dept. of Env. Cons., 668 F. Supp. 848 (S.D.N.Y. 1987); 
Citizens for a Better Env't v. Deukmejian, 731 F. Supp. 1448, recon. 
granted in part, 746 F. Supp. 976 (N.D. Cal. 1990); Coalition for 
Clean Air v. South Coast Air Quality Mgt. Dist., No. CV 97-6916-HLH, 
(C.D. Cal. Aug. 27, 1999). Further, if a state fails to meet its 
commitments, EPA could make a finding of failure to implement the 
SIP under section 179(a) of the Act, which starts an 18-month period 
for the State to begin implementation before mandatory sanctions are 
imposed.
---------------------------------------------------------------------------

    As an initial matter, EPA believes that present circumstances for 
the New York City, Philadelphia, Baltimore and Houston nonattainment 
areas warrant the consideration of enforceable commitments. The 
Northeast states that make up the New York, Baltimore, and Philadelphia 
nonattainment areas submitted SIPs that they reasonably believed 
demonstrated attainment with fully adopted measures. After EPA's 
initial review of the plans, EPA recommended to these areas that 
additional controls would be necessary to ensure attainment. Because 
these areas had already submitted plans with many fully adopted rules 
and the adoption of additional rules would take some time, EPA believed 
it was appropriate to allow these areas to supplement their plans with 
enforceable commitments to adopt and submit control measures to achieve 
the additional necessary reductions. For Delaware's attainment 
demonstration for the Philadelphia area, EPA has determined that the 
submission of enforceable commitments in place of adopted control 
measures for these limited sets of reductions will not interfere with 
each area's ability to meet its 2005 attainment obligations.
    EPA's approach here of considering enforceable commitments that are 
limited in scope is not new. EPA has historically recognized that under 
certain circumstances, issuing full approval may be appropriate for a 
submission that consists, in part, of an enforceable commitment. See 
e.g., 62 FR 1150, 1187, January 8, 1997 (ozone attainment demonstration 
for the South Coast Air Basin); 65 FR 18903, April 10, 2000 (revisions 
to attainment demonstration for the South Coast Air Basin); 63 FR 
41326, August 3, 1998 (federal implementation plan for PM-10 for 
Phoenix); 48 FR 51472 (state implementation plan for New Jersey). 
Nothing in the Act speaks directly to the approvability of enforceable 
commitments.\6\ However, EPA believes that its interpretation is 
consistent with provisions of the Act. For example, section 
110(a)(2)(A) provides that each SIP ``shall include enforceable 
emission limitations and other control measures, means or techniques * 
* * as well as schedules and timetables for compliance, as may be 
necessary or appropriate to meet the applicable requirement of the 
Act.'' (Emphasis added). Section 172(c)(6) of the Act requires, as a 
rule generally applicable to nonattainment SIPs, that the SIP ``include 
enforceable emission limitations and such other control measures, means 
or techniques * * * as may be necessary or appropriate to provide for 
attainment * * * by the applicable attainment date * * *'' (Emphasis 
added). The emphasized terms mean that enforceable emission limitations 
and other control measures do not necessarily need to generate 
reductions in the full amount needed to attain. Rather, the emissions 
limitations

[[Page 54607]]

and other control measures may be supplemented with other SIP rules--
for example, the enforceable commitments EPA is approving in this final 
action--as long as the entire package of measures and rules provides 
for attainment.
---------------------------------------------------------------------------

    \6\ Section 110(k)(4) provides for ``conditional approval'' of 
commitments that need not be enforceable. Under that section, a 
State may commit to ``adopt specific enforceable measures'' within 
one-year of the conditional approval. Rather than enforcing such 
commitments against the State, the Act provides that the conditional 
approval will convert to a disapproval if ``the State fails to 
comply with such commitment.''
---------------------------------------------------------------------------

    As provided above, after concluding that the circumstances warrant 
consideration of an enforceable commitment--as they do for the 
Philadelphia area--EPA would consider three factors in determining 
whether to approve the submitted commitments. First, EPA believes that 
the commitments must be limited in scope. In 1994, in considering EPA's 
authority under section 110(k)(4) to conditionally approve 
unenforceable commitments, the Court of Appeals for the District of 
Columbia Circuit struck down an EPA policy that would allow states to 
submit (under limited circumstances) commitments for entire programs. 
Natural Resources Defense Council v. EPA, 22 F.3d 1125 (D.C. Cir. 
1994). While EPA does not believe that case is directly applicable 
here, EPA agrees with the Court that other provisions in the Act 
contemplate that a SIP submission will consist of more than a mere 
commitment. See NRDC, 22 F.3d at 1134.
    In the present circumstances, the commitments address only a small 
portion of the 2005 attainment plan. For the Philadelphia area, the 
commitment addresses only 10.6 percent of the VOC and 0.7 percent of 
the NOX emission reductions necessary to attain the 
standard. A summary of the adopted control measures and other 
components credited in Delaware's attainment demonstration submission 
are discussed in Sections I.G. and I.H. of this document.
    As to the second factor, whether the state is capable of fulfilling 
the commitment, EPA considered the current or potential availability of 
measures capable of achieving the additional level of reductions 
represented by the commitment. For the New York, Philadelphia and 
Baltimore nonattainment areas, EPA believes that there are sufficient 
untapped sources of emission reductions that could achieve the minimal 
levels of additional reductions that the areas need. This is supported 
by the recent recommendation of the OTC regarding specific controls 
that could be adopted to achieve the level of reductions needed for 
each of these three nonattainment areas. Thus, EPA believes that the 
states will be able to find sources of reductions to meet the 
shortfall. The states that comprise the New York, Philadelphia and 
Baltimore nonattainment areas are making significant progress toward 
adopting the measures to fill the shortfall. The OTC has met and on 
March 29, 2001, recommended a set of control measures. Currently, 
Delaware has proposed the regulations for all OTC recommended control 
measures and has gone to public hearings on those control measures. 
Delaware has indicated that it would submit the measures no later than 
October 31, 2001. This time period is fully consistent with the 
Philadelphia area attaining the standard by its approved attainment 
date.
    The third factor EPA has considered in determining to approve 
limited commitments for the Philadelphia area attainment demonstration 
is whether the commitment is for a reasonable and appropriate period. 
EPA recognizes that both the Act and EPA have historically emphasized 
the need for submission of adopted control measures in order to ensure 
expeditious implementation and achievement of required emissions 
reductions. Thus, to the extent that other factors--such as the need to 
consider innovative control strategies--support the consideration of an 
enforceable commitment in place of adopted control measures, the 
commitment should provide for the adoption of the necessary control 
measures on an expeditious, yet practicable, schedule.
    As previously provided, for New York, Baltimore and Philadelphia, 
EPA proposed that these areas have time to work within the framework of 
the OTC to develop, if appropriate, a regional control strategy to 
achieve the necessary reductions and then to adopt the controls on a 
state-by-state basis. In the proposed approval of the attainment 
demonstrations, EPA proposed that these areas would have approximately 
22 months to complete the OTC and state-adoption processes--a fairly 
ambitious schedule--i.e., until October 31, 2001. As a starting point 
in suggesting this time frame for submission of the adopted controls, 
EPA first considered the CAA ``SIP Call'' provision of the Act--section 
110(k)(5)--which provides states with up to 18 months to submit a SIP 
after EPA requests a SIP revision. While EPA may have ended its inquiry 
there, and provided for the states to submit the measures within 18 
months of its proposed approval of the attainment demonstrations, EPA 
further considered that these areas were all located with the Northeast 
Ozone Transport Region (OTR) and determined that it was appropriate to 
provide these areas with additional time to work through the OTC 
process to determine if regional controls would be appropriate for 
addressing the shortfall. EPA believed that allowing these states until 
2001 to adopt these additional measures would not undercut their 
attainment dates of November 2005 or 2007. EPA still believes that this 
is a reasonable schedule for the states to submit adopted control 
measures that will achieve the additional necessary reductions.
    The enforceable commitments submitted by Delaware for the 
Philadelphia nonattainment area, in conjunction with its other SIP 
measures and other sources of emissions reductions, constitute the 
required demonstration of attainment. EPA believes that the delay in 
submittal of the final rules is permissible under section 110(k)(3) 
because the State has obligated itself to submit the rules by specified 
short-term dates, and that obligation is enforceable by EPA and the 
public. Moreover, as discussed in the December 16, 1999 proposal, its 
Technical Support Document (TSD), and Sections I.G. and I.H. of this 
document, the SIP submittal approved today contains major substantive 
components submitted as adopted regulations and enforceable orders.
    The comment is not germane to Delaware's Post 1996 ROP plans. The 
State of Delaware is relying only on NOX and VOC emission 
reductions achieved within its portion of the Philadelphia 
nonattainment area for demonstrating ROP from 1996 through the 2005 
attainment year. These reductions result from the implementation of 
fully promulgated Federal or fully adopted and SIP-approved state 
measures.

D. RACM (Including Transportation Control Measures)

    Comment: Several commenters have stated that there is no evidence 
in several states that they have adopted reasonably available control 
measures (RACM) or that the SIPs have provided for attainment as 
expeditiously as practicable. Specifically, the lack of Transportation 
Control Measures (TCMs) was cited in several comments, but commenters 
also raised concerns about potential stationary source controls. One 
commenter stated that mobile source emission budgets in the plans are 
by definition inadequate because the SIPs do not demonstrate timely 
attainment or contain the emissions reductions required for all RACM. 
That commenter claims that EPA may not find adequate a motor vehicle 
emission budget (MVEB) that is derived from a SIP that is inadequate 
for the purpose for which it is submitted.

[[Page 54608]]

The commenter alleges that none of the MVEBs submitted by the states 
that EPA is considering for adequacy is consistent with the level of 
emissions achieved by implementation of all RACM; nor are they derived 
from SIPs that provide for attainment. Some commenters stated that for 
measures that are not adopted into the SIP, the state must provide a 
justification for why they were determined not to be RACM.
    Response: EPA reviewed the initial SIP submittals for the 
Philadelphia area and determined that they did not include sufficient 
documentation concerning available RACM measures. For all of the severe 
areas for which EPA proposed approval in December 1999, EPA 
consequently issued policy guidance memorandum to have these states 
address the RACM requirement through an additional SIP submittal. 
(Memorandum of December 14, 2000, from John S. Seitz, Director, Office 
of Air Quality Planning and Standards, re: ``Additional Submission on 
RACM from States with Severe One-hour Ozone Nonattainment Area SIPs'').
    On August 3, 2001, Delaware submitted its proposed analysis and 
determination that there are no additional reasonably available control 
measures (RACM) as a supplement to its 2005 attainment demonstration 
for the Philadelphia area and requested that EPA approve it as a SIP 
revision using a form of Federal rulemaking known as parallel-
processing. On September 7, 2001, EPA published a SNPR on the 
attainment demonstration (66 FR 46755). In that supplemental notice, we 
proposed approval of Delaware's RACM analysis and determination. See 
Section I.E. of this document. We received no comments on that SNPR.
    That proposed approval was done under a procedure called parallel 
processing, whereby EPA proposes rulemaking action concurrently with 
the state's procedures for amending its SIP. If the final, adopted 
revision is substantially changed from the version EPA proposed to 
approve, and which was available for public review during EPA's comment 
period, EPA will evaluate those changes and may publish another 
supplemental notice of proposed rulemaking. If no substantial changes 
are made, EPA will publish a final rulemaking notice on the revision. 
The final rulemaking action by EPA will occur only after the SIP 
revision has been adopted by the state and submitted formally to EPA 
for incorporation into the SIP.
    On October 9, 2001, the State of Delaware supplemented its original 
attainment demonstration SIP with a formal submittal of an analysis of 
RACM. EPA has determined that there are no changes between Delaware's 
formally submitted RACM analysis and the proposed version for which we 
proposed approval on September 7, 2001. We received no comments on the 
September 7, 2001 SNPR. EPA concluded that Delaware's 2005 attainment 
demonstration SIP for the Philadelphia area, as formally supplemented 
on October 9, 2001, meets the requirement for RACM.
    Section 172(c)(1) of the Act requires SIPs to contain RACM and 
provides for areas to attain as expeditiously as practicable. EPA has 
previously provided guidance interpreting the requirements of 
172(c)(1). See 57 FR 13498, 13560. In that guidance, EPA indicated its 
interpretation that potentially available measures that would not 
advance the attainment date for an area would not be considered RACM. 
EPA also indicated in that guidance, that states should consider all 
potentially available measures to determine whether they were 
reasonably available for implementation in the area, and whether they 
would advance the attainment date. Further, states should indicate in 
their SIP submittals whether measures considered were reasonably 
available or not, and if measures are reasonably available they must be 
adopted as RACM. Finally, EPA indicated that states could reject 
measures as not being RACM because they would not advance the 
attainment date, would cause substantial widespread and long-term 
adverse impacts, would be economically or technologically infeasible, 
or would be unavailable based on local considerations, including costs. 
EPA also issued a recent memorandum re-confirming the principles in the 
earlier guidance, entitled, ``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: www.epa.gov/ttn/oarpg/t1pgm.html.
    The analysis submitted by the Delaware on October 9, 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 and 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 VOC RACT 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 
vehicles; 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 include 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 additional requirements beyond those of 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 (NLEV).
    (7) Delaware has adopted, and EPA has SIP approved, a rule to 
implement Phase II NOX controls under the OTC MOU. This rule 
established a fixed cap

[[Page 54609]]

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 
are considered to 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.
    Although EPA does not believe that section 172(c)(1) requires 
implementation of additional measures for the Philadelphia area, this 
conclusion is not necessarily valid for other areas. Thus, a 
determination of RACM is necessary on a case-by-case basis and will 
depend on the circumstances for the individual area. In addition, if in 
the future EPA moves forward to implement another ozone standard, this 
RACM analysis would not control what is RACM for these or any other 
areas for that other ozone standard.
    Also, EPA has long advocated that states consider the kinds of 
control measures that the commenters have suggested, and EPA has indeed 
provided guidance on those measures. See, e.g., www.epa.gov/otaq/transp.htm. in order to demonstrate that they will attain the one-hour 
ozone NAAQS as expeditiously as practicable, some areas may need to 
consider and adopt a number of measures, including the kind that 
Delaware itself evaluated in its RACM analysis, that even collectively 
do not result in many emission reductions. Furthermore, EPA encourages 
areas to implement technically available and economically feasible 
measures to achieve emissions reductions in the short term, even if 
such measures do not advance the attainment date, since such measures 
will likely improve air quality. Also, over time, emission control 
measures that may not be RACM now for an area may ultimately become 
feasible for the same area due to advances in control technology or 
more cost-effective implementation techniques. Thus, areas should 
continue to assess the state of control technology as they make 
progress toward attainment and consider new control technologies that 
may in fact result in more expeditious improvement in air quality.
    Because EPA is finding that the SIP meets the Act's requirement for 
RACM and that there are no additional reasonably available control 
measures that can advance the attainment date. EPA concludes that the 
attainment date being approved is as expeditiously as practicable.
    EPA previously responded to comments concerning the adequacy of 
MVEBs when EPA took final action determining the budgets adequate and 
does not address those issues again here. The responses are found at 
www.epa.gov/oms/transp/conform/pastsips.htm.

E. Adequacy of Motor Vehicle Emissions Budgets

    Comment: We received a number of comments about the process and 
substance of EPA's review of the adequacy of motor vehicle emissions 
budgets for transportation conformity purposes.
    Response: EPA's adequacy process for these SIPs has been completed, 
and we have found the motor vehicle emissions budgets in all of these 
SIPs to be adequate. We have already responded to any comments related 
to adequacy when we issued our adequacy findings, and therefore we are 
not listing the individual comments or responding to them here. Our 
findings of adequacy and responses to comments can be accessed at 
www.epa.gov/otaq/traq (once there, click on the ``conformity'' button). 
At the Web site, EPA regional contacts are identified.

F. Motor Vehicle Emissions Inventory

    Comment: Several commenters stated that the motor vehicle emissions 
inventory is not current, particularly with respect to the fleet mix. 
Commenters stated that the fleet mix does not accurately reflect the 
growing proportion of sport utility vehicles and gasoline trucks, which 
pollute more than conventional cars. Also, a commenter stated that EPA 
and states have not followed a consistent practice in updating SIP 
modeling to account for changes in vehicle fleets. For these reasons, 
commenters recommend disapproving the SIPs.
    Response: All of the SIPs on which we are taking final action are 
based on the most recent vehicle registration data available at the 
time the SIP was submitted. The SIPs use the same vehicle fleet 
characteristics that were used in the most recent periodic inventory 
update. The Delaware's SIP is based on vehicle registration data from 
1994, which is the most recent data available at the time the SIP was 
prepared and submitted. EPA requires the most recent available data to 
be used, but we do not require it to be updated on a specific schedule. 
Therefore, different SIPs base their fleet mix on different years of 
data. Our guidance does not suggest that SIPs should be disapproved on 
this basis. Nevertheless, we do expect that revisions to these SIPs 
that are submitted using MOBILE6 (as required in those cases where the 
SIP is relying on emissions reductions from the Tier 2 standards) will 
use updated vehicle registration data appropriate for use with MOBILE6, 
whether it is updated local data or the updated national default data 
that will be part of MOBILE6.

G. VOC Emission Reductions

    Comment: For states that need additional VOC reductions, one 
commenter recommends a process to achieve these VOC emission 
reductions, which involves the use of HFC-152a (1,1 difluoroethane) as 
the blowing agent in manufacturing of polystyrene foam products such as 
food trays and egg cartons. The commenter states that HFC-152a could be 
used instead of hydrocarbons, a known pollutant, as a blowing agent. 
Use of HFC-152a, which is classified as VOC exempt, would eliminate 
nationwide the entire 25,000 tons/year of VOC emissions from this 
industry.
    Response: EPA has met with the commenter and has discussed the 
technology described by the company to reduce VOC emissions from 
polystyrene foam blowing through the use of HFC-152a (1,1 
difluoroethane), which is a VOC exempt compound, as a blowing agent. 
Since the HFC-152a is VOC exempt, its use would give a VOC reduction 
compared to the use of VOCs such as pentane or butane as a blowing 
agent. However, EPA has not studied this technology exhaustively. It is 
each state's prerogative to specify which measures it will adopt in 
order to achieve the additional VOC reductions it needs. In evaluating 
the use of HFC-152a, states may want to consider claims that products 
made with this blowing agent are comparable in quality to products made 
with other blowing agents. Also the question of the over-all long term 
environmental effect of encouraging emissions of fluorine compounds 
would be relevant to consider. This is a technology which

[[Page 54610]]

states may want to consider, but ultimately, the decision of whether to 
require this particular technology to achieve the necessary VOC 
emissions reductions must be made by each affected state. Finally, EPA 
notes that under the significant new alternatives policy (SNAP) 
program, created under the Act, section 612, EPA has identified 
acceptable foam blowing agents man of which are not VOCs (www.epa.gov/ozone/title6/snap/).

H. Credit for Measures Not Fully Implemented

    Comment: States should not be given credit for measures that are 
not fully implemented. For example, the states are being given full 
credit for Federal coating, refinishing and consumer product rules that 
have been delayed or weakened.
    Response: Architectural and Industrial Maintenance (AIM) Coatings: 
On March 22, 1995 EPA issued a memorandum \7\ that provided that states 
could claim a 20 percent reduction in VOC emissions from the AIM 
coatings category in ROP and attainment plans based on the anticipated 
promulgation of a national AIM coatings rule. In developing the 
attainment and ROP SIPs for their nonattainment areas, states relied on 
this memorandum to estimate emission reductions from the anticipated 
national AIM rule. EPA promulgated the final AIM rule in September 
1998, codified at 40 CFR Part 59 Subpart D. In the preamble to EPA's 
final AIM coatings regulation, EPA estimated that the regulation will 
result in 20 percent reduction of nationwide VOC emissions from AIM 
coatings categories (63 FR 48855). The estimated VOC reductions from 
the final AIM rule resulted in the same level as those estimated in the 
March 1995 EPA policy memorandum.
---------------------------------------------------------------------------

    \7\ ``Credit for the 15 Percent Rate-of-Progress Plans for 
Reductions from the Architectural and Industrial Maintenance (AIM) 
Coating Rules,'' March 22, 1995, from John S. Seitz, Director, 
Office of air Quality Planning and Standards to Air Division 
Directors, Regions I-X.
---------------------------------------------------------------------------

    In accordance with EPA's final regulation, states have assumed a 20 
percent reduction from AIM coatings source categories in their 
attainment and ROP plans. AIM coatings manufacturers were required to 
be in compliance with the final regulation within one year of 
promulgation, except for certain pesticide formulations which were 
given an additional year to comply. Thus all manufacturers were 
required to comply, at the latest, by September 2000. Industry 
confirmed in comments on the proposed AIM rule that 12 months between 
the issuance of the final rule and the compliance deadline would be 
sufficient to ``use up existing label stock'' and ``adjust 
inventories'' to conform to the rule. 63 FR 48848 (September 11, 1998). 
In addition, EPA determined that, after the compliance date, the volume 
of nonconforming products would be very low (less than one percent) and 
would be withdrawn from retail shelves anyway. Therefore, EPA believes 
that compliant coatings were in use by the fall of 1999 with full 
reductions to be achieved by September 2000 and that it was appropriate 
for the states to take credit for a 20 percent emission reduction in 
their SIPs.
    Autobody Refinish Coatings Rule: Consistent with a November 27, 
1994 EPA policy,\8\ many states claimed a 37 percent reduction from 
this source category based on a proposed rule. However, EPA's final 
rule, ``National Volatile Organic Compound Emission Standards for 
Automobile Refinish Coatings,'' published on September 11, 1998 (63 FR 
48806), did not regulate lacquer topcoats and will result in a smaller 
emission reduction of around 33 percent overall nationwide. The 37 
percent emission reduction from EPA's proposed rule was an estimate of 
the total nationwide emission reduction. Since this number is an 
overall national average, the actual reduction achieved in any 
particular area could vary depending on the level of control which 
already existed in the area. For example, in California the reduction 
from the national rule is zero because California's rules are more 
stringent than the national rule. In the proposed rule, the estimated 
percentage reduction for areas that were unregulated before the 
national rule was about 40 percent. However as a result of the lacquer 
topcoat exemption added between proposal and final rule, the reduction 
is now estimated to be 36 percent for previously unregulated areas. 
Thus, most previously unregulated areas will need to make up the 
approximately one percent difference between the 37 percent estimate of 
reductions assumed by states, following EPA guidance based on the 
proposal, and the 36 percent reduction actually achieved by the final 
rule for previously unregulated areas. EPA's best estimate of the 
reduction potential of the final rule was spelled out in a September 
19, 1996 memorandum entitled ``Emissions Calculations for the 
Automobile Refinish Coatings Final Rule'' from Mark Morris to Docket 
No. A-95-18.
---------------------------------------------------------------------------

    \8\ ``Credit for the 15 Percent Rate-of-Progress Plans for 
Reductions from the Architectural and Industrial Maintenance (AIM) 
Coating Rule and the Autobody Refinishing Rule,'' November 29, 1994, 
John S. Seitz, Director OAQPS, to Air Division Directors, Regions I-
X.
---------------------------------------------------------------------------

    Consumer Products Rule: Consistent with a June 22, 1995 EPA 
guidance,\9\ states claimed a 20 percent reduction from this source 
category based on EPA's proposed rule. The final rule, ``National 
Volatile Organic Compound Emission Standards for Consumer Products,'' 
(63 FR 48819), published on September 11, 1998, has resulted in a 20 
percent reduction after the December 10, 1998 compliance date. 
Moreover, these reductions largely occurred by the fall of 1999. In the 
consumer products rule, EPA determined and the consumer products 
industry concurred, that a significant proportion of subject products 
have been reformulated in response to state regulations and in 
anticipation of the final rule (63 FR 48819). That is, industry 
reformulated the products covered by the consumer products rule in 
advance of the final rule. Therefore, EPA believes that complying 
products in accordance with the rule were in use by the fall of 1999. 
It was appropriate for the states to take credit for a 20 percent 
emission reduction for the consumer products rule in their SIPs.
---------------------------------------------------------------------------

    \9\ ``Regulatory Schedule for Consumer and Commercial Products 
under Section 183(e) of the Clean Air Act,'' June 22, 1995, John S. 
Seitz, Director OAQPS, to Air Division Directors, Regions I-X.
---------------------------------------------------------------------------

I. Enforcement of Control Programs

    Comment: The attainment demonstrations do not clearly set out 
programs for enforcement of the various control strategies relied on 
for emission reduction credit.
    Response: In general, state enforcement, personnel and funding 
program elements are contained in SIP revisions previously approved by 
EPA under obligations set forth in section 110(a)(2)(c) of the Act. 
Once approved by the EPA, there is no need for states to re-adopt and 
resubmit their enforcement programs with each and every SIP revision 
generally required by other sections of the Act. In a final rulemaking 
action published on October 17, 1983 (48 FR 46986), EPA approved 
Delaware's financial and manpower resource commitments, after having 
proposed approval of these commitments on February 3, 1983 (48 FR 
5093,5095). In addition, emission control regulations will also contain 
specific enforcement mechanisms, such as record keeping and reporting 
requirements, and may also provide for periodic state inspections and 
reviews of the affected sources. EPA's review of these regulations 
includes review of the enforceability of the regulations. Rules

[[Page 54611]]

that are not enforceable are generally not approved by EPA. To the 
extent that the ozone attainment demonstration depends on specific 
state emission control regulations, these individual regulations have 
undergone review by the EPA in past approval actions.

J. MOBILE6 and the Motor Vehicle Emissions Budgets (MVEBs)

    Comment 1: One commenter generally supports a policy of requiring 
motor vehicle emissions budgets to be recalculated when revised MOBILE 
models are released.
    Response 1: The attainment demonstration SIPs that rely on Tier 2 
emission reduction credit contain commitments to revise the motor 
vehicle emissions budgets after MOBILE6 is released. EPA is approving 
Delaware's commitment in this final rulemaking.
    Comment 2: The revised budgets calculated using MOBILE6 will likely 
be submitted after the MOBILE5 budgets have already been approved. 
EPA's policy is that submitted SIPs may not replace approved SIPs.
    Response 2: This is the reason that EPA proposed in the July 28, 
2000, SNPR (65 FR 46383) that the approval of the MOBILE5 budgets for 
conformity purposes would last only until MOBILE6 budgets had been 
submitted and found adequate. In this way, the MOBILE6 budgets can 
apply for conformity purposes as soon as they are found adequate. See 
the discussion at Section I.B. of this document.
    Comment 3: If a state submits additional control measures that 
affect the motor vehicle emissions budget, but does not submit a 
revised motor vehicle emissions budget, EPA should not approve the 
attainment demonstration.
    Response 3: EPA agrees. The motor vehicle emissions budgets for the 
Delaware portion of the Philadelphia area attainment demonstration 
reflect the motor vehicle control measures in the attainment 
demonstration. In addition, Delaware has committed to submit new 
budgets as a revision to the attainment SIP consistent with any new 
measures submitted to fill any shortfall, if the additional control 
measures affect on-road motor vehicle emissions. EPA is approving that 
commitment in this final rulemaking. See the discussion at Section I.B. 
of this document.
    Comment 4: EPA should make it clear that the motor vehicle 
emissions budgets to be used for conformity purposes will be determined 
from the total motor vehicle emissions reductions required in the SIP, 
even if the SIP does not explicitly quantify a revised motor vehicle 
emissions budget.
    Response 4: EPA will not approve SIPs without motor vehicle 
emissions budgets that are explicitly quantified for conformity 
purposes. Delaware's attainment demonstration SIP for the Philadelphia 
area contains explicitly quantified motor vehicle emissions budgets for 
its portion of the area which have been even further explicitly 
quantified as sub-budgets for each of Kent and New Castle Counties. See 
Section I.I.(1) of this document.
    Comment 5: If a state fails to follow through on its commitment to 
submit the revised motor vehicle emissions budgets using MOBILE6, EPA 
could make a finding of failure to submit a portion of a SIP, which 
would trigger a sanctions clock under section 179 of the Act.
    Response 5: We agree that if a state fails to meet its SIP-approved 
commitment, EPA could make a finding of failure to implement the SIP, 
which would start a sanctions clock under section 179 of the Act.
    Comment 6: If the budgets recalculated using MOBILE6 are larger 
than the MOBILE5 budgets, then attainment should be demonstrated again.
    Response 6: As EPA proposed in its December 16, 1999 notices, we 
will work with states on a case-by-case basis if the new emissions 
estimates raise issues about the sufficiency of the attainment 
demonstration.
    Comment 7: If the MOBILE6 budgets are smaller than the MOBILE5 
budgets, the difference between the budgets should not be available for 
reallocation to other sources unless air quality data show that the 
area is attaining, and a revised attainment demonstration is submitted 
that demonstrates that the increased emissions are consistent with 
attainment and maintenance. Similarly, the MOBILE5 budgets should not 
be retained (while MOBILE6 is being used for conformity demonstrations) 
unless the above conditions are met.
    Response 7: EPA agrees that if recalculation using MOBILE6 shows 
lower motor vehicle emissions than MOBILE5, then these motor vehicle 
emission reductions cannot be reallocated to other sources or assigned 
to the motor vehicle emissions budget as a safety margin unless the 
area reassesses the analysis in its attainment demonstration and shows 
that it will still attain. In other words, the area must assess how its 
original attainment demonstration is impacted by using MOBILE6 versus 
MOBILE5 before it reallocates any apparent motor vehicle emission 
reductions resulting from the use of MOBILE6. In addition, Delaware 
will be submitting new budgets based on MOBILE6, so the MOBILE5 budgets 
will not be retained in the SIP indefinitely.

K. MOBILE6 Grace Period

    Comment 1: We received a comment on whether the grace period before 
MOBILE6 is required in conformity determinations will be consistent 
with the schedules for revising SIP motor vehicle emissions budgets 
within one or two years of MOBILE6's release.
    Response 1: This comment is not germane to this rulemaking, since 
the MOBILE6 grace period for the conformity determinations is not 
explicitly tied to EPA's SIP policy and approvals. However, EPA 
understands that a longer grace period would allow some areas to better 
transition to new MOBILE6 budgets. EPA is considering the maximum two-
year grace period allowed by the conformity rule, and EPA will address 
this in the future when the final MOBILE6 emissions model and policy 
guidance is released.
    Comment 2: One commenter asked EPA to clarify in the final rule 
whether MOBILE6 will be required for conformity determinations once new 
MOBILE6 budgets are submitted and found adequate.
    Response 2: This comment is not germane to this rulemaking. 
However, it is important to note that EPA intends to clarify its policy 
for implementing MOBILE6 in conformity determinations when the MOBILE6 
model is released. EPA believes that MOBILE6 should be used in 
conformity determinations once new MOBILE6 budgets are found adequate.

L. Two-Year Option To Revise the MVEBs

    Comment: One commenter did not prefer the additional option for a 
second year before the state has to revise the conformity budgets with 
MOBILE6 since new conformity determinations and new transportation 
projects could be delayed in the second year.
    Response: EPA proposed the additional option to provide further 
flexibility in managing MOBILE6 budget revisions. The supplemental 
proposal did not change the original option to revise budgets within 
one year of MOBILE6's release. State and local governments can continue 
to use the one-year option, if desired, or submit a new commitment 
consistent with the alternative two-year option. EPA expects that state 
and local agencies have consulted on which option is appropriate and 
considered the impact on the future conformity determinations. Delaware 
has committed to revise its budgets within

[[Page 54612]]

one-year of MOBILE6's release. EPA is approving that commitment in this 
final rulemaking.

M. Comments Contending That Delaware's NOX Measures Are Not 
Approved

    Comment: We received comments asserting that credit had been 
assumed from measures not approved into the SIP. The comments 
specifically mentioned the NOX RACT rule and the Phase II 
controls under the OTC's MOU. We also received comments that 
NOX RACT applicability should be extended to 25 tons per 
year sources.
    Response: EPA has approved the Delaware's NOX RACT 
regulations for this area (66 FR 32231, June 14, 2001). The comment 
regarding extension of the applicability of RACT to 25 tons per year 
sources is moot because the Delaware NOX RACT regulations's 
applicability threshold is 25 tons per year as is required in a severe 
ozone nonattainment area. EPA has fully approved Delaware's rule that 
implements the Phase II controls under the OTC MOU (65 FR 12481, March 
9, 2000).

N. Attainment and Rate-of-Progress Demonstrations

    Comment: One commenter claims that the plans fail to demonstrate 
emission reductions of 3 percent per year over each 3-year period 
between November 1999 and November 2002, and November 2002 and November 
2005, as required by 42 U.S.C. section 7511a(c)(2)(B). The states have 
not even attempted to demonstrate compliance with these requirements, 
and EPA has not proposed to find that they have been met. The EPA has 
absolutely no authority to waive the statutory mandate for 3 percent 
annual reductions. The statute does not allow EPA to use the 
NOX SIP call or 126 orders as an excuse for waiving ROP 
deadlines. The statutory ROP requirement is for emission reductions--
not ambient reductions. Emission reductions in upwind states do not 
waive the statutory requirement for 3 percent annual emission 
reductions within the downwind nonattainment area.
    Response: Under no condition is EPA waiving the statutory 
requirement for 3 percent annual emission reductions. For many areas, 
EPA did not propose approval of the Post-99 ROP demonstrations at the 
same time as EPA proposed action on the area's attainment 
demonstration. On August 30, 2001 (66 FR 45800), EPA proposed full 
approval of all of the Post-1996 ROP plans adopted by Delaware to 
demonstrate ROP from 1996 through the 2005 attainment year. We received 
no comments on that NPR. (See the discussion in Section I.B. of this 
document.) Delaware is only relying on NOX and VOC 
reductions from within its portion of the Philadelphia nonattainment 
area for meeting the ROP requirements from 1996 through the 2005 
attainment year. These reductions are the result of fully promulgated 
Federal and fully adopted and SIP-approved state measures.

O. Measures for the One Hour NAAQS and for Progress Toward the Eight 
Hour NAAQS

    Comment: One commenter notes that EPA has been working toward 
promulgation of a revised eight hour ozone NAAQS because the 
Administrator deemed attaining the one-hour ozone NAAQS is not adequate 
to protect public health. Therefore, EPA must ensure that measures be 
implemented now that will be sufficient to meet the one hour standard 
and that make as much progress toward implementing the 8 hour ozone 
standard as the requirements of the Act and implementing regulations 
allow.
    Response: The one hour standard remains in effect for all of these 
areas and the SIPs that have been submitted are for the purpose of 
achieving that NAAQS. Congress has provided the states with the 
authority to choose the measures necessary to attain the NAAQS. EPA 
cannot second guess a state's choice if EPA determines that the SIP 
meets the requirements of the Act. EPA believes that the SIPs for the 
severe areas meet the requirements for attainment demonstrations for 
the one hour standard and thus, could not disapprove them even if EPA 
believed other control requirements might be more effective for 
attaining the eighthour standard. However, EPA generally believes that 
emission controls implemented to attain the one hour ozone standard 
will be beneficial towards attainment of the eighthour ozone standard 
as well. This is particularly true regarding the implementation of 
NOX emission controls resulting from EPA's NOX 
SIP Call.
    Finally, EPA notes that although the eighthour ozone standard has 
been adopted by the EPA, implementation of this standard has been 
delayed while certain aspects of the standard remain before the United 
States Circuit Court of Appeals. The states and the EPA have yet to 
define the eighthour ozone nonattainment areas and the EPA has yet to 
issue guidance and requirements for the implementation of the eighthour 
ozone standard.

III. Final Action

A. Attainment Demonstration

    EPA is fully approving as meeting sections 182(c)(2) and (d) of the 
Act, the attainment demonstration for the Philadelphia-Wilmington-
Trenton area as submitted by the State of Delaware on May 22, 1998, and 
amended October 8, 1998, January 24, 2000, December 20, 2000, and 
October 9, 2001, including its RACM analysis and determination.

B. Commitments

    EPA is approving the enforceable commitments made to the attainment 
plan for the Philadelphia-Wilmington-Trenton severe ozone nonattainment 
area submitted on January 24, 2000 and revised on December 20, 2000. 
The enforceable commitments are to:
    (1) Submit measures by October 31, 2001 for additional emission 
reductions as required in the attainment demonstration test, and to 
revise the SIP and motor vehicle emissions budgets by October 31, 2001 
if the additional measures affect the motor vehicle emissions 
inventory,
    (2) Revise the SIP and motor vehicle emission budgets using MOBILE6 
within one year after it is issued, and
    (3) Perform a mid-course review by December 31, 2003.

C. Post-1996 ROP Plans

    (1) EPA is approving 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, namely Kent and New 
Castle Counties, which were submitted on December 29, 1997, June 17, 
1999, February 3, 2000, and December 20, 2000.
    (2) EPA is also approving Delaware's contingency plans for failure 
to meet ROP in the Delaware portion of the Philadelphia-Wilmington-
Trenton severe ozone nonattainment area, namely Kent and New Castle 
Counties which were submitted on December 29, 1997, June 17, 1999, 
February 3, 2000, and December 20, 2000.

D. Mobile Budgets of the Control Strategy Plans

    EPA is approving the following mobile budgets, explicitly 
quantified as sub-budgets for each of Kent and New Castle Counties, of 
the Post-96 ROP plans and the Attainment Plan:

[[Page 54613]]



               Transportation Conformity Budgets for the Delaware Portion of the Philadelphia Area
----------------------------------------------------------------------------------------------------------------
                                         Kent County     New Castle
                                      ----------------     County
 Type of control strategy SIP   Year                  ----------------  Effective date of adequacy determination
                                         VOC     NOX     VOC     NOX
----------------------------------------------------------------------------------------------------------------
Post-1996 ROP Plan...........    1999    7.55   11.17   22.49   29.41  April 29, 1999 (64 FR 31217, published
                                                                        June 10, 1999).
Post-1996 ROP Plan...........    2002    6.30    9.81   18.44   27.29  June 23, 2000, (65 FR 36440, published
                                                                        June 8, 2000).
Post-1996 ROP Plan...........    2005    4.84    7.90   14.76   22.92  May 2, 2001 (66 FR 19769, published April
                                                                        17, 2001).
Attainment Demonstration.....    2005    4.84    7.90   14.76   22.92  June 23, 2000 (65 FR 36440, published
                                                                        June 8, 2000).
----------------------------------------------------------------------------------------------------------------

    Please note that EPA is only approving the 2005 attainment 
demonstration and its current budgets because Delaware has provided an 
enforceable commitment to revise the budgets using the MOBILE6 model 
within one year of EPA's release of that model. Therefore, we are 
limiting the duration of our approval of the current budgets only until 
such time as the revised budgets are found adequate. Those revised 
budgets will be more appropriate than the budgets we are approving for 
conformity purposes for the time being.
    Similarly, EPA is only approving the 2005 attainment demonstration 
and its current budgets because Delaware provided enforceable 
commitments to adopt additional measures to strengthen the attainment 
demonstration by October 31, 2001 and to submit revised budgets by 
October 31, 2001 if the additional measures affect the motor vehicle 
emissions inventory. Therefore, we are limiting the duration of our 
approval of the current budgets only until such time as any such 
revised budgets are found adequate. Those revised budgets will be more 
appropriate than the budgets we are approving for conformity purposes 
for the time being.

IV. Administrative Requirements

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not 
have tribal implications because it will 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). 
This action also does not have Federalism implications because it does 
not 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). 
This action merely approves a state rule implementing a Federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the Act. This rule also is 
not subject to Executive Order 13045 ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (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 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 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. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 28, 2001. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action to approve the Post-1996 ROP plans and the one-hour ozone 
attainment demonstration SIP for the Philadelphia-Wilmington-Trenton 
area submitted by the State of Delaware may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and 
recordkeeping requirements.


[[Page 54614]]


    Dated: October 15, 2001.
James W. Newsom,
Regional Administrator, Region III.


    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

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

Subpart I--Delaware

    2. Section 52.426 is amended by revising the section heading and 
designating the existing text as paragraph (a) and adding paragraphs 
(b), (c) and (d) to read as follows:


Sec. 52.426  Control strategy plans for attainment and rate-of-
progress: ozone.

* * * * *
    (b)(1) EPA approves revisions to the Delaware State Implementation 
Plan consisting of 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, namely Kent and New Castle 
Counties. These revisions were submitted by the Secretary of Delaware 
Department of Natural Resources and Environmental Control on December 
29, 1997, and revised on June 17, 1999, February 3, 2000, and December 
20, 2000.
    (2) EPA approves Delaware's contingency plans for failure to meet 
ROP in the Delaware portion of the Philadelphia-Wilmington-Trenton 
severe ozone nonattainment area, namely Kent and New Castle Counties, 
for milestone years 1999, 2002 and 2005. These revisions were submitted 
by the Secretary of Delaware Department of Natural Resources and 
Environmental Control on December 29, 1997, June 17, 1999, February 3, 
2000, and December 20, 2000.
    (c) EPA approves the attainment demonstration SIP for the 
Philadelphia-Wilmington-Trenton area submitted by the Secretary of the 
Delaware Department of Natural Resources and Environmental Control on 
May 22, 1998, and amended October 8, 1998, January 24, 2000, December 
20, 2000, and October 9, 2001 including its RACM analysis and 
determination. EPA is approving the enforceable commitments made to the 
attainment plan for the Philadelphia-Wilmington-Trenton severe ozone 
nonattainment area submitted by the Secretary of Delaware Department of 
Natural Resources and Environmental Control on January 24, 2000 and 
December 20, 2000. The enforceable commitments are to:
    (1) Submit measures by October 31, 2001 for additional emission 
reductions as required in the attainment demonstration test, and to 
revise the SIP and motor vehicle emissions budgets by October 31, 2001 
if the additional measures affect the motor vehicle emissions 
inventory,
    (2) Revise the SIP and motor vehicle emission budgets using MOBILE6 
within one year after it is issued, and
    (3) Perform a mid-course review by December 31, 2003.
    (d) EPA is approving the following mobile budgets, explicitly 
quantified as sub-budgets for each of Kent and New Castle Counties, of 
the Post-96 ROP plans and the Attainment Plan:

               Transportation Conformity Budgets for the Delaware Portion of the Philadelphia Area
----------------------------------------------------------------------------------------------------------------
                                         Kent County     New Castle
                                      ----------------     County
 Type of control strategy SIP   Year                  ----------------  Effective Date of Adequacy Determination
                                         VOC     NOX     VOC     NOX
----------------------------------------------------------------------------------------------------------------
Post-1996 ROP Plan...........    1999    7.55   11.17   22.49   29.41  April 29, 1999 (64 FR 31217, published
                                                                        June 10, 1999).
Post-1996 ROP Plan...........    2002    6.30    9.81   18.44   27.29  June 23, 2000, (65 FR 36440, published
                                                                        June 8, 2000).
Post-1996 ROP Plan...........    2005    4.84    7.90   14.76   22.92  May 2, 2001 (66 FR 19769, published April
                                                                        17, 2001).
Attainment Demonstration.....    2005    4.84    7.90   14.76   22.92  June 23, 2000, (65 FR 36440, published
                                                                        June 8, 2000).
----------------------------------------------------------------------------------------------------------------

    (1) EPA is only approving the 2005 attainment demonstration and its 
current budgets because Delaware has provided an enforceable commitment 
to revise the budgets using the MOBILE6 model within one year of EPA's 
release of that model. Therefore, EPA is limiting the duration of its 
approval of the current budgets only until such time as the revised 
budgets are found adequate. Those revised budgets will be more 
appropriate than the budgets EPA is approving for conformity purposes 
for the time being.
    (2) Similarly, EPA is only approving the attainment demonstration 
and its current budgets because Delaware has provided enforceable 
commitments to adopt additional measures to strengthen the attainment 
demonstration by October 31, 2001 and to submit revised budgets by 
October 31, 2001 if the additional measures affect the motor vehicle 
emissions inventory. Therefore, EPA is limiting the duration of its 
approval of the current budgets only until such time as any such 
revised budgets are found adequate. Those revised budgets will be more 
appropriate than the budgets EPA is approving for conformity purposes 
for the time being.

[FR Doc. 01-26768 Filed 10-26-01; 8:45 am]
BILLING CODE 6560-50-P