[Federal Register Volume 76, Number 11 (Tuesday, January 18, 2011)]
[Proposed Rules]
[Pages 2853-2859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-907]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2010-1027; FRL-9253-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Infrastructure State Implementation Plan Requirement To 
Address Interstate Transport for the 2006 24-Hour PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to approve and, in the alternative, 
proposing to disapprove a State Implementation Plan (SIP) revision 
submitted by the Delaware Department of Natural Resources and 
Environmental Control (DNREC) on September 16, 2009, as supplemented 
with a technical analysis submitted for parallel-processing by DNREC on 
December 9, 2010, to address significant contribution to nonattainment 
or interference with maintenance in another State with respect to the 
2006 fine particulate matter (PM2.5) national ambient air 
quality standards (NAAQS). EPA's rationale for proposing approval and, 
in the alternative, proposing disapproval of Delaware's September 16, 
2009 SIP revision and its associated December 9, 2010 supplement is 
described in this proposal. Please note that today's proposed 
rulemaking action addresses only those portions of Delaware's September 
16, 2009 submittal which pertain to significant contribution to 
nonattainment or interference with maintenance in another State 
requirements pursuant to the 2006 PM2.5 NAAQS. EPA is not 
taking action at this time on any other portion of Delaware's September 
16, 2009 submittal. This action is being taken under the Clean Air Act 
(CAA).

DATES: Written comments must be received on or before February 17, 
2011.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2010-1027 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: [email protected].
    C. Mail: EPA-R03-OAR-2010-1027, Cristina Fernandez, Associate 
Director, Office of Air Program Planning, Mailcode 3AP30, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103.

[[Page 2854]]

    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2010-1027. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an anonymous access system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://www.regulations.gov or in hard copy during normal business hours at the 
Air Protection Division, U.S. Environmental Protection Agency, Region 
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the 
State submittal are available at the Delaware Department of Natural 
Resources and Environmental Control, 89 Kings Highway, P.O. Box 1401, 
Dover, Delaware 19903.

FOR FURTHER INFORMATION CONTACT: Ellen Wentworth, (215) 814-2034, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This section provides 
additional information by addressing the following:

I. What action is EPA taking?
II. What is the background for this action?
III. Description of the SIP Revision Submitted by the State of 
Delaware
IV. What is EPA's evaluation of the State's submittals?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. What action is EPA taking?

    EPA is proposing to approve and, in the alternative, proposing to 
disapprove a revision to the Delaware SIP submitted by DNREC on 
September 16, 2009, as supplemented with a technical analysis submitted 
by DNREC for parallel-processing on December 9, 2010, to satisfy the 
infrastructure SIP requirements relating to interstate transport in 
section 110(a)(2)(D)(i)(I) of the CAA with respect to the 2006 
PM2.5 NAAQS. The December 9, 2010 supplement to DNREC's 
September 16, 2009 revision consists of a technical analysis that 
provides detailed support for Delaware's position that it has satisfied 
the requirements of CAA section 110(a)(2)(D)(i)(I) with respect to the 
2006 PM2.5 NAAQS. The December 9, 2010 supplement to the 
September 16, 2009 SIP revision was submitted to EPA by DNREC for 
parallel-processing with a request that it be considered by EPA in 
taking any rulemaking action on the September 16, 2009 SIP submission. 
Before EPA takes final action on DNREC's SIP revision to satisfy the 
infrastructure SIP requirements relating to interstate transport in 
section 110(a)(2)(D)(i)(I) of the CAA pursuant to the 2006 
PM2.5 NAAQS, DNREC will have completed conducting the public 
participation procedures required by section 110(a) of the CAA on the 
December 9, 2010 supplement to its September 16, 2009 SIP revision. 
Once those procedures are completed, DNREC will formally submit the 
technical analysis to EPA, along with all required administrative 
documentation, as a final supplement to the September 16, 2009 SIP 
revision. Delaware's December 9, 2010 request for parallel-processing 
of the technical analysis was done pursuant to the procedures of 40 CFR 
Part 51 Appendix v at section 2.3.
    It should be noted that this proposed rulemaking action addresses 
only those portions of Delaware's September 16, 2009 submittal which 
address the 110(a)(2)(D)(i)(I) requirements relating to significant 
contribution to nonattainment or interference with maintenance in 
another State with respect to the 2006 PM2.5 NAAQS. At this 
time, EPA is not taking action on any additional requirements of 
section 110(a)(2)(D)(i) or on any other portions of Delaware's 
September 16, 2009 submittal.

II. What is the background for this action?

    On October 17, 2006 (71 FR 61144), EPA revised the 24-hour average 
PM2.5 primary and secondary NAAQS from 65 micrograms per 
cubic meter ([mu]g/m\3\) to 35 [mu]g/m\3\ which became effective on 
December 18, 2006. Section 110(a)(1) of the CAA requires States to 
submit infrastructure SIP revisions to address a new or revised NAAQS 
within three years after promulgation of such standards, or within such 
shorter period as EPA may prescribe.\1\ As provided by section 
110(k)(2), within 12 months of a determination that a SIP submittal is 
complete under section 110(k)(1), the Administrator shall act on the 
plan. As authorized in section 110(k)(3) of the CAA, where portions of 
the State submittals are severable, EPA may propose to approve only 
those severable portions of the submittals that meet the requirements 
of the CAA. When the deficient provisions are not severable from all of 
the submitted provisions, EPA must propose disapproval of the 
submittals, consistent with section 110(k)(3) of the CAA.
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    \1\ The rule for the revised PM2.5 NAAQS was signed 
by the Administrator and publically disseminated on September 21, 
2006. Because EPA did not prescribe a shorter period for 110(a) 
infrastructure SIP submittals, these submittals for the 2006 24-hour 
NAAQS were due on September 21, 2009, three years from the September 
21, 2006 signature date.
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    Section 110(a)(2) lists the elements that such new infrastructure 
SIPs must address, as applicable, including section 110(a)(2)(D)(i), 
which pertains to interstate transport of certain emissions. On 
September 25, 2009, EPA issued its ``Guidance on SIP Elements Required 
Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) NAAQS'' (hereafter the 2009 Guidance). EPA developed 
the 2009 Guidance to inform States making submissions to meet the 
requirements of section 110, including 110(a)(2)(D)(i) for the revised 
2006 24-hour PM2.5 NAAQS due on September 16, 2009.
    As identified in EPA's 2009 Guidance, the ``good neighbor'' 
provisions in section 110(a)(2)(D)(i) require each State

[[Page 2855]]

to submit a SIP that prohibits emissions that adversely affect another 
State in the ways contemplated in the statute. Section 110(a)(2)(D)(i) 
contains four distinct requirements related to the impacts of 
interstate transport. The SIP must prevent sources in the State from 
emitting pollutants in amounts which will: (1) Contribute significantly 
to nonattainment of the NAAQS in other States; (2) interfere with 
maintenance of the NAAQS in other States; (3) interfere with provisions 
to prevent significant deterioration of air quality in other States; or 
(4) interfere with efforts to protect visibility in other States.
    In its 2009 Guidance, EPA indicated that SIP submissions from 
States pertaining to the ``significant contribution'' and ``interfere 
with maintenance'' requirements of section 110(a)(2)(D)(i) must contain 
adequate provisions to prohibit air pollutant emissions from within the 
State that contribute significantly to nonattainment or interfere with 
maintenance of the NAAQS in any other State. EPA further indicated that 
the State's submission must explain whether or not emissions from the 
State have this impact and, if so, address the impact. EPA stated that 
the State's conclusion must be supported by an adequate technical 
analysis. EPA recommended the various types of information that could 
be relevant to support the State SIP submission, such as information 
concerning emissions in the State, meteorological conditions in the 
State and the potentially impacted States, monitored ambient 
concentrations in the State, and air quality modeling. Furthermore, EPA 
indicated that States should address the ``interfere with maintenance'' 
requirement independently, which requires an evaluation of impacts on 
areas of other States that are meeting the 2006 24-hour 
PM2.5 NAAQS, not merely areas designated nonattainment. 
Lastly, in the 2009 Guidance, EPA stated that States could not rely on 
the Clean Air Interstate Rule (CAIR) to comply with the CAA section 
110(a)(2)(D)(i) requirements for the 2006 24-hour PM2.5 
NAAQS because CAIR does not address this NAAQS.
    EPA promulgated CAIR on May 12, 2005 (See 70 FR 25162). The CAIR 
required States to reduce emissions of sulfur dioxide (SO2), 
and nitrogen oxides (NOX) that significantly contribute to, 
and interfere with maintenance of the 1997 NAAQS for PM2.5 
and/or ozone in any downwind State. The CAIR was intended to provide 
States covered by the rule with a mechanism to satisfy their CAA 
section 110(a)(2)(D)(i)(I) obligations to address significant 
contribution to downwind nonattainment and interference with 
maintenance in another State with respect to the 1997 ozone and 
PM2.5 NAAQS. Many States adopted CAIR's provisions and 
submitted SIPs to EPA to demonstrate compliance with CAIR's 
requirements in satisfaction of their 110(a)(2)(D)(i)(I) obligations 
for those two criteria pollutants.
    EPA was sued by a number of parties on various aspects of CAIR, and 
on July 11, 2008, the U.S. Court of Appeals for the District of 
Columbia Circuit issued its decision to vacate and remand both CAIR and 
the associated CAIR Federal Implementation Plan (FIP) in their 
entirety. North Carolina v. EPA, 531 F.3d 836 (DC Cir. Jul. 11, 2008). 
However, in response to EPA's petition for rehearing, the Court issued 
an order remanding CAIR to EPA without vacating either CAIR or the CAIR 
FIPs. North Carolina v. EPA, 550 F.3d 1176 (DC Cir. Dec. 23, 2008). The 
Court thereby left CAIR in place in order to ``temporarily preserve the 
environmental values covered by CAIR'' until EPA replaces it with a 
rule consistent with the Court's opinion. Id. at 1178. The Court 
directed EPA to ``remedy CAIR's flaws'' consistent with its July 11, 
2008, opinion, but declined to impose a schedule on EPA for completing 
that action. Id.
    In order to address the judicial remand of CAIR, on August 2, 2010, 
EPA proposed a new rule to address interstate transport pursuant to 
section 110(a)(2)(D)(i)(I), the ``Federal Implementation Plans to 
Reduce Interstate Transport of Fine Particulate Matter and Ozone'' 
(hereafter the Transport Rule).\2\ As part of the proposed Transport 
Rule, EPA specifically examined the section 110(a)(2)(D)(i)(I) 
requirement that emissions from sources in a State must not 
``significantly contribute to nonattainment'' and ``interfere with 
maintenance'' of the 2006 24-hour PM2.5 NAAQS by other 
States. The modeling performed by EPA for the proposed Transport Rule 
indicates that emissions from the State of Delaware significantly 
contribute to nonattainment or interfere with maintenance of the 2006 
24-hour PM2.5 NAAQS in another State. The Transport Rule 
Federal Implementation Plan, (hereafter the Transport Rule FIP), as 
proposed, thus covers the State of Delaware.
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    \2\ See ``Federal Implementation Plans to Reduce Interstate 
Transport of Fine Particulate Matter and Ozone; Proposed Rule,'' 75 
FR 45210 (August 2, 2010).
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    The State of Delaware had not expected to be subject to or covered 
by the proposed Transport Rule FIP. The State's expectation that it 
would not be covered was based on its periodic emission inventories 
(PEI) for PM2.5 and three Delaware regulations that had been 
approved by EPA into the Delaware SIP to control PM2.5 
precursor emissions. On September 16, 2009, Delaware submitted a SIP 
revision to address the section 110(a)(2)(D)(i)(I) requirement that 
emissions from sources in a State must not ``significantly contribute 
to nonattainment'' and ``interfere with maintenance'' of the 2006 24-
hour PM2.5 NAAQS in another State. The State of Delaware's 
expectation was and is that EPA would approve that SIP revision.
    On October 1, 2010, DNREC submitted timely, extensive comments to 
the rulemaking docket of the proposed Transport Rule FIP (see Docket ID 
No. EPA-HQ-OAR-2009-0491). These comments identify several errors and 
omissions which DNREC believes were made by EPA in the modeling and 
analyses performed for the proposed Transport Rule FIP with regard to 
the State of Delaware. It is DNREC's contention that once EPA fully 
considers its October 1, 2010 comments submitted on the proposed 
Transport Rule FIP, that EPA will conclude that the State of Delaware 
does not contribute to nonattainment and does not interfere with 
maintenance of the 2006 24-hour PM2.5 NAAQS in another 
State. It is Delaware's position that its SIP approved rules in 
conjunction with applicable Federal rules achieve emission reductions 
in PM2.5 precursors such that emissions from the State of 
Delaware neither significantly contribute to any other State's 
nonattainment of the 2006 PM2.5 NAAQS nor interfere with the 
ability of any other State to attain the 2006 PM2.5 NAAQS. 
Further, Delaware contends that existing Federal rules (not including 
CAIR) and State rules approved into its existing SIP, keep Delaware's 
emissions below the caps that EPA proposed to set for the State of 
Delaware in the proposed Transport Rule FIP. Both DNREC's comments on 
the proposed Transport Rule and its December 9, 2010 supplemental 
technical analysis include comprehensive documentation of the emissions 
of SO2 and NOx from Delaware's PEI, and a 
thorough explanation of the differences between the PEI and the 
emissions in the National Emissions Inventory (NEI) used by EPA in 
performing the modeling and analyses in support of the

[[Page 2856]]

proposed Transport Rule. The DNREC contends that the State of Delaware 
should not be subject to and covered by the final Transport Rule FIP, 
and that EPA should approve its September 16, 2009 SIP submittal as 
supplemented by the technical analysis submitted on December 9, 2010.

III. Description of the SIP Revision Submitted by the State of Delaware

    In order to meet the ``three-years from promulgation due date'' of 
September 16, 2009 for submittal of the infrastructure SIP elements 
required by section 110(a)(1) of the CAA for the 2006 PM2.5 
NAAQS promulgated on September 16, 2006; on September 16, 2009, the 
State of Delaware submitted a SIP revision to address the 
infrastructure requirements of section 110(a)(2)(D)(i)(I) for the 2006 
PM2.5 NAAQS. Because EPA's ``Guidance on SIP Elements 
Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine 
Particle (PM2.5) NAAQS'' was not issued until September 25, 
2009, DNREC contends it could not have met the September 16, 2009 
statutory due date had it waited for EPA's guidance to prepare and 
submit its infrastructure SIPs for the 2006 PM2.5 NAAQS. The 
DNREC makes the point that until the 2009 Guidance was issued, Delaware 
was not aware that a technical analysis was required to be part of a 
SIP submittal to satisfy section 110(a)(2)(D)(i)(I) for the 2006 
PM2.5 NAAQS. It is DNREC's contention that its October 1, 
2010 comments submitted to EPA on the proposed Transport Rule (see 
Docket ID No. EPA-HQ-OAR-2009-0491) meet the 2009 Guidance's 
requirement for a technical analysis in support of its September 16, 
2009 SIP submittal to satisfy section 110(a)(2)(D)(i)(I) for the 2006 
PM2.5 NAAQS. Despite this contention and in the best 
interests of the State of Delaware, DNREC submitted a supplement to its 
September 16, 2009 submittal dated December 9, 2010 which consists of a 
technical analysis to support the September 16, 2009 submittal. The 
DNREC's December 9, 2010 supplement uses the comments, data, and 
information submitted by Delaware on the proposed Transport Rule to 
form the basis of a technical analysis in support of its September 16, 
2009 SIP revision to comply with EPA's September 25, 2009 Guidance. In 
its September 16, 2009 and December 9, 2010 submissions, DNREC 
indicates that the State of Delaware has complied with the section 
110(a)(2)(D)(i)(I) requirements of the CAA, addressing interstate 
transport for the 2006 PM2.5 NAAQS, through promulgation of:
    A. 7 DE Admin. Code 1146, Electric Generating Unit Multi-Pollutant 
Regulation,
    B. 7 DE Admin. Code 1142, Section 2, Control of NOX 
Emissions from Industrial Boilers and Process Heaters at Petroleum 
Refineries, and
    C. 7 DE Admin. Code 1148, Control of Stationary Combustion Turbine 
Electric Generating Unit Emissions.
    Each of the above regulations imposes a level of control based upon 
Best Available Control Technology (BACT), and significantly reduces 
emissions from Delaware's largest Electric Generating Units (EGUs), 
industrial boilers, and peaking units. These regulations have been 
approved by the EPA as revisions to Delaware's SIP.\3\
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    \3\ Regulation 1146--Electric Generating Unit Multi-Pollutant 
Regulation. Final rule published August 28, 2008 (73 FR 50723), 
effective September 29, 2008. Regulation 1148--Control of Stationary 
Combustion Turbine Electric Generating Unit Emissions. Final rule 
published November 10, 2008 (73 FR 66554), effective December 10, 
2008. Regulation 1142, Section 2--Control of Nitrogen Oxide 
Emissions from Industrial Boilers and Process Heaters at Petroleum 
Refineries. Final rule published on June 4, 2010 (75 FR 31711), 
effective July 6, 2010. Correction notice done (for table) on June 
10, 2010 (75 FR 32858). Note: Regulation 1142 was not referred to in 
DNREC's September 16, 2009 submittal as it was adopted by Delaware 
on October 14, 2009, effective November 11, 2009, and SIP approved 
on June 4, 2010. It is referred to in DNREC's December 9, 2010 
supplemental submittal as another regulation imposing BACT level 
controls for PM2.5 precursors and SIP-approved by EPA.
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    Both Delaware's entire September 16, 2009 SIP submittal and the 
entire December 9, 2010 supplement to the September 16, 2009 submittal 
are included in the rulemaking docket for today's proposed action (see 
Docket ID No. EPA-R03-OAR-2010-1027). As previously stated, it is 
Delaware's position that its SIP-approved rules in conjunction with 
applicable Federal rules (not including CAIR) achieve emission 
reductions in PM2.5 precursors such that emissions from the 
State of Delaware neither significantly contribute to any other State's 
nonattainment of the 2006 PM2.5 NAAQS nor interfere with the 
ability of any other State to attain the 2006 PM2.5 NAAQS. 
Further, Delaware contends that these emission reductions keep 
Delaware's emissions below the caps EPA proposed to set for the State 
of Delaware in the proposed Transport Rule.

IV. What is EPA's evaluation of the State's submittals?

    On September 16, 2009, the State of Delaware submitted a SIP 
revision to address the requirements of section 110(a)(1) and section 
110(a)(2)(A)-(M) of the CAA, pursuant to the 2006 PM2.5 
NAAQS. EPA subsequently published a Federal Register notice on June 3, 
2010 (75 FR 31340) proposing approval of certain elements, or portions 
thereof, of Delaware's SIP submittals for the 1997 8-hour ozone and the 
1997 and 2006 PM2.5 NAAQS. At that time, EPA did not take 
any proposed action on any portion of Delaware's SIP submittals to 
address the section 110(a)(2)(D)(i)(I) requirements for the 1997 ozone 
or the 1997 and 2006 PM2.5 NAAQS. Today's action is 
proposing approval and, in the alternative, proposing disapproval of 
that portion of Delaware's September 16, 2009 submittal, as 
supplemented on December 9, 2010, pertaining to the section 
110(a)(2)(D)(i)(I) requirements relating to significant contribution to 
nonattainment or interference with maintenance with respect to the 2006 
PM2.5 NAAQS.
    Delaware has determined that it has complied with the requirements 
of section 110(a)(2)(D)(i)(I) for the 2006 PM2.5 NAAQS, 
through the promulgation of its SIP-approved regulations to reduce 
PM2.5 precursor emissions of SO2 and 
NOX from EGUs, industrial boilers, and peaking units. 
Delaware started with the assumption that it did significantly impact 
downwind areas and moved forward and regulated NOX and 
SO2 emissions from its large EGU and industrial boilers 
including EGUs with small annual emissions, but high daily emissions 
(typically referred to as high energy demand day units) with BACT level 
controls. Because of this, Delaware believes it has clearly mitigated 
transport and has adequately addressed CAA section 110(a)(2)(D)(i)(I) 
requirements for the 2006 PM2.5 NAAQS.
    On August 2, 2010 (75 FR 45210), EPA proposed a Transport Rule FIP 
that would, if finalized as proposed, identify the emission reductions 
needed in 32 States in the eastern United States to prohibit air 
pollutant emissions from sources within a State from significantly 
contributing to nonattainment in or interfering with maintenance of the 
NAAQS in any other State. The proposed Transport Rule would replace 
CAIR and would address the section 110(a)(2)(D)(i)(I) requirements for 
the 2006 PM2.5 NAAQS. The modeling and analyses conducted by 
EPA for the proposed Transport Rule FIP indicated that emissions from 
Delaware significantly contribute to nonattainment or interfere with 
maintenance of the 2006 PM2.5 NAAQS in downwind areas. 
Therefore, Delaware is among those States identified in the proposed 
Transport Rule FIP as significantly contributing to nonattainment or 
interfering with

[[Page 2857]]

maintenance in downwind States. EPA received significant comments on 
this rulemaking from the State of Delaware and others, and is in the 
process of reviewing those comments. As noted previously, DNREC 
submitted extensive comments and technical data to support its 
contention that the State of Delaware has been inappropriately named as 
a State that needs to be covered by the proposed Transport Rule FIP. 
EPA will be considering and responding to the comments submitted by 
Delaware on the proposed Transport Rule in the context of that 
rulemaking.
    Delaware's December 9, 2010 supplemental technical analysis in 
support of its September 16, 2009 SIP revision includes information and 
data to support its assertion that the 2005 base year emission 
inventories that EPA used in its analysis of Delaware's contribution to 
downwind nonattainment and maintenance areas were flawed. Delaware 
asserts that the emissions inventories used by EPA were significantly 
higher than those Delaware submitted to EPA in its 2005 PEI. Delaware 
also asserts that EPA failed to consider emission reductions required 
by a number of Delaware rules that have been approved by EPA into the 
State SIP. In its supplemental technical analysis, Delaware contends, 
therefore, that EPA's projections of Delaware's 2012 emissions are 
inflated. If correct data had been used, Delaware asserts, the 
methodology used by EPA in the proposed Transport Rule FIP to identify 
States with emissions that significantly contribute to nonattainment or 
interfere with maintenance of the 2006 PM2.5 NAAQS in other 
States would demonstrate that Delaware has no such emissions. The DNREC 
also contends that if correct data were used, EPA's 2012 base case EGU 
SO2 emissions projections would be lower than the 
SO2 budgets EPA proposed to establish for EGUs in Delaware 
in the proposed Transport Rule FIP. In addition, DNREC contends EPA's 
Integrated Planning Model (IPM) 2012 EGU NOX emission 
projections for Delaware are less than the NOX budgets EPA 
proposed to establish for Delaware in the proposed Transport Rule FIP. 
For these additional reasons, DNREC argues EPA should not have proposed 
to include Delaware in the proposed Transport Rule FIP and should not 
include Delaware in the final Transport Rule FIP.
    As stated previously, DNREC's October 1, 2010 comments on the 
proposed Transport Rule FIP, including its documentation of the 
corrections that it contends should be made to the 2005 emission 
inventories and the 2012 projection inventories for all sectors of 
PM2.5 precursors, are in the docket for that proposed 
rulemaking (see Docket ID No. EPA-HQ-OAR-2009-0491) and form the basis 
for Delaware's conclusion that it should not be among the States 
covered by the final Transport Rule FIP. Copies of Delaware's September 
16, 2009 SIP submittal and the entire technical analysis submitted by 
DNREC as a supplement to that SIP on December 9, 2010 are included in 
the docket for this proposed rulemaking (see Docket ID No. EPA-R03-OAR-
2010-1027). That technical analysis also includes Delaware's 
documentation of the corrections that it contends should be made to the 
2005 emission inventories and the 2012 projection inventories for all 
sectors of PM2.5 precursors in support of its conclusion 
that it should not be among the States covered by the final Transport 
Rule FIP and that its September 16, 2009 SIP revision, as supplemented 
on December 9, 2010, should be approved as satisfying the section 
110(a)(2)(D)(i)(I) infrastructure SIP requirement for the 2006 
PM2.5 NAAQS.
    EPA is considering the comments it received on the August 2, 2010 
proposed Transport Rule FIP including those from the State of Delaware. 
EPA is in the process performing additional modeling and making 
technical adjustments to its analyses pursuant to the comments received 
before promulgating the final Transport Rule FIP. Final determinations 
regarding which States are covered by the Transport Rule FIP and what 
reductions are necessary in the covered States will be made in the 
final Transport Rule FIP. Today's rulemaking proposes to approve and, 
in the alternative, proposes to disapprove Delaware's September 16, 
2009 SIP submittal as supplemented on December 9, 2010. The final 
action on this SIP revision will take into consideration the results of 
the additional modeling performed and technical adjustments made by EPA 
pursuant to the comments received on the proposed Transport Rule FIP. 
Should EPA's updated modeling and the technical adjustments to our 
analyses lead us to conclude that the State of Delaware should not be 
subject to or covered by the final Transport Rule FIP, it is our 
intention to take final action to approve Delaware's September 16, 2009 
SIP as supplemented on December 9, 2010. Should EPA's updated modeling 
and technical adjustments to our analyses for the Transport Rule lead 
us to conclude that even after consideration of all comments submitted 
by DNREC, the State of Delaware significantly contributes to 
nonattainment or interferes with maintenance of the 2006 
PM2.5 NAAQS in any other State, it is EPA's intention to 
disapprove the September 16, 2009 SIP as supplemented on December 9, 
2010.
    EPA is soliciting public comments on the issues discussed in this 
document. These comments will be considered before taking final action. 
Comments may be submitted as explained in the ADDRESSES portion of this 
proposed rulemaking notice.

V. Proposed Action

    EPA is proposing to approve and, in the alternative, proposing to 
disapprove the portion of Delaware's SIP revision submitted on 
September 16, 2009 as supplemented on December 9, 2010 pursuant to the 
section 110(a)(2)(D)(i)(I) requirements for the 2006 PM2.5 
NAAQS. The December 9, 2010 supplemental submittal is being considered 
under a procedure called parallel processing, whereby EPA proposes 
rulemaking action concurrently with the State's procedures for amending 
its SIP. The final rulemaking action by EPA will occur only after the 
SIP revision supplement has been formally submitted to EPA for 
incorporation into the SIP.
    As stated previously, if in the course of reviewing and preparing 
responses to the comments submitted on the proposed Transport Rule 
including those from DNREC, EPA's additional modeling and the 
adjustments made to its technical analyses indicate that the State of 
Delaware should not be subject to or covered by the final Transport 
Rule FIP, it is EPA's intention to take final action to approve DNREC's 
September 16, 2009 SIP submission for infrastructure element 
110(a)(2)(D)(i)(I) for the 2006 PM2.5 NAAQS as supplemented 
on December 9, 2010. Alternatively, if in the course of reviewing and 
preparing responses to the comments submitted on the proposed Transport 
Rule including those from DNREC, EPA's additional modeling and the 
adjustments made to its technical analyses indicate that Delaware 
should be subject to and covered by the final Transport Rule FIP, it is 
EPA's intention to take final action to disapprove Delaware's September 
16, 2009 SIP submission for infrastructure element 110(a)(2)(D)(i)(I) 
for the 2006 PM2.5 NAAQS as supplemented on December 9, 
2010. EPA is soliciting public comments on the issues discussed in this 
document. These comments will be considered before taking final action.
    Under section 179(a) of the CAA, final disapproval of a submittal 
that

[[Page 2858]]

addresses a requirement of a part D plan (42 U.S.C.A. sections 7501-
7515) or is required in response to a finding of substantial inadequacy 
as described in section 7410(k)(5) (SIP call) starts a sanctions clock. 
The provisions in the submittal were not submitted to meet either of 
those requirements. Therefore, any final EPA action to disapprove 
Delaware's September 16, 2009 section 110(a)(2)(D)(i)(I) submittal and 
the accompanying technical analysis, would not trigger any sanctions.
    Any full or partial disapproval of a SIP revision triggers the 
requirement under section 110(c) that EPA promulgate a FIP no later 
than 2 years from the date of the disapproval unless the State corrects 
the deficiency, and the Administrator approves the plan or plan 
revision before the Administrator promulgates such FIP. If EPA were to 
conclude that the Delaware SIP revision discussed in this notice should 
be disapproved, the Transport Rule, when final, would be the FIP that 
EPA would intend to implement for the State.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to act on State law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by State law.

A. Executive Order 12866, Regulatory Planning and Review

    This proposed action is not a ``significant regulatory action'' 
under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) 
and is therefore not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This proposed action does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq., because this proposed action under section 110 and 
subchapter I, part D of the CAA will not in-and-of itself create any 
new information collection burdens but simply proposes to approve and, 
in the alternative, proposes to disapprove certain State requirements 
for inclusion into the SIP. Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. For purposes of assessing the impacts of today's rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field. After considering the economic 
impacts of today's proposed rule on small entities, I certify that this 
proposed action will not have a significant impact on a substantial 
number of small entities. This proposed rule does not impose any 
requirements or create impacts on small entities. This proposed action 
under section 110 and subchapter I, part D of the CAA will not in-and-
of itself create any new requirements but simply proposes to approve 
and, in the alternative, proposes to disapprove certain State 
requirements for inclusion into the SIP. Accordingly, it affords no 
opportunity for EPA to fashion for small entities less burdensome 
compliance or reporting requirements or timetables or exemptions from 
all or part of the rule. The fact that the CAA prescribes that various 
consequences (e.g., higher offset requirements) may or will flow from 
this proposed action does not mean that EPA either can or must conduct 
a regulatory flexibility analysis for this action. Therefore, this 
proposed action will not have a significant economic impact on a 
substantial number of small entities. We continue to be interested in 
the potential impacts of this proposed rule on small entities and 
welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    This proposed action contains no Federal mandates under the 
provisions of Title II of the Unfunded Mandates Reform Act of 1995 
(UMRA), 2 U.S.C. 1531-1538 for State, local, or Tribal governments or 
the private sector. EPA has determined that the proposed action does 
not include a Federal mandate that may result in estimated costs of 
$100 million or more to either State, local, or Tribal governments in 
the aggregate, or to the private sector. This action proposes to 
approve and, in the alternative, proposes to disapprove pre-existing 
requirements under State or local law, and imposes no new requirements. 
Accordingly, no additional costs to State, local, or Tribal 
governments, or to the private sector, result from this action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have Federalism implications.'' 
``Policies that have Federalism implications'' is defined in the 
Executive Order to include regulations that 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.'' This 
proposed action does not have Federalism implications. It will 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, because it merely proposes to 
approve and, in the alternative, proposes to disapprove certain State 
requirements for inclusion into the SIP and does not alter the 
relationship or the distribution of power and responsibilities 
established in the CAA. Thus, Executive Order 13132 does not apply to 
this proposed action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This proposed action does not have Tribal implications, as 
specified in Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP EPA is proposing to approve and, in the alternative, 
proposing to disapprove would not apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on Tribal governments or preempt Tribal law. Thus, Executive 
Order 13175 does not apply to this action.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the

[[Page 2859]]

regulation. This proposed action is not subject to Executive Order 
13045 because it is not an economically significant regulatory action 
based on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997). This proposed action under section 110 and 
subchapter I, part D of the CAA will not in-and-of itself create any 
new regulations but simply proposes to approve and, in the alternative, 
proposes to disapprove certain State requirements for inclusion into 
the SIP.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This proposed action is not subject to Executive Order 13211 (66 FR 
28355, May 22, 2001) because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards. EPA 
believes that this proposed action is not subject to the requirements 
of Section 12(d) of NTTAA because application of those requirements 
would be inconsistent with the CAA.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. EPA lacks the discretionary authority 
to address environmental justice in this proposed action. In reviewing 
SIP submissions, EPA's role is to approve or disapprove State choices, 
based on the criteria of the CAA. Accordingly, this proposed action on 
Delaware's September 16, 2009 SIP submission, as supplemented on 
December 9, 2010, to address 110(a)(2)(D)(i)(I) for the 2006 
PM2.5 NAAQS merely proposes to approve and, in the 
alternative, proposes to disapprove certain State requirements for 
inclusion into the SIP under section 110 and subchapter I, part D of 
the CAA and will not in-and-of itself create any new requirements. 
Accordingly, it does not provide EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen dioxide, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides.


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


    Dated: January 6, 2011.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2011-907 Filed 1-14-11; 8:45 am]
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