[Federal Register Volume 77, Number 152 (Tuesday, August 7, 2012)]
[Proposed Rules]
[Pages 46990-46994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-19173]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2008-0930; FRL-9711-6 ]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Attainment Demonstration for the 1997 8-Hour Ozone National 
Ambient Air Quality Standard for the Philadelphia-Wilmington-Atlantic 
City Moderate Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the attainment demonstration 
portion of the attainment plan submitted by the State of Delaware 
through the Delaware Department of Natural Resources and Environmental 
Control (DNREC) as a State Implementation Plan (SIP) revision that 
demonstrates attainment of the 1997 8-hour ozone national ambient air 
quality standard (NAAQS) for the Philadelphia-Wilmington-Atlantic City, 
PA-NJ-MD-DE, moderate nonattainment area (Philadelphia Area) by the 
applicable attainment date of June 2011. EPA has determined that 
Delaware's SIP revision meets the applicable requirements of the Clean 
Air Act (CAA). This action is being taken in accordance with the CAA.

DATES: Written comments must be received on or before September 6, 
2012.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2008-0930 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: [email protected].
    C. Mail: EPA-R03-OAR-2008-0930, Donna Mastro, Acting Associate 
Director, Office of Air Planning Program, Mailcode 3AP30, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103.
    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-
2008-0930. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, including any

[[Page 46991]]

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 
www.regulations.gov or email. The 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 email comment directly to EPA without 
going through www.regulations.gov, your email 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 
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 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: Rose Quinto, (215) 814-2182, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. The following is provided to 
aid in locating information in this preamble.

I. What action is EPA proposing to take?
II. What is the background for EPA's proposed action?
III. What are the CAA requirements for a moderate 8-hour ozone 
nonattainment area?
IV. What is included in Delaware's SIP submittal?
V. What is EPA's review of Delaware's modeled attainment 
demonstration and weight of evidence analysis for the Philadelphia 
area?
VI. Proposed Action
VII. Statutory and Executive Order Reviews

I. What action is EPA proposing to take?

    EPA is proposing to approve the attainment demonstration element of 
a SIP revision submitted by DNREC to EPA on June 13, 2007. The June 13, 
2007 SIP revision consisted of Delaware's attainment plan for the 1997 
8-hour ozone NAAQS for the Philadelphia Area. The ozone attainment plan 
submitted on June 13, 2007 included the attainment demonstration for 
the Philadelphia Area and its associated motor vehicle emission budgets 
(MVEBs) used for transportation conformity purposes in all three 
Delaware counties (New Castle, Kent and Sussex Counties). The Delaware 
attainment plan also included a 2002 base year emissions inventory, an 
analysis of the reasonably available control measures/reasonably 
available control technology (RACM/RACT), the 2008 rate of progress 
(ROP) plan and its associated MVEBs, and contingency measures. The ROP 
plan and its MVEBs, 2002 base year emissions inventory, RACM/RACT 
analysis, and contingency measures (elements of the June 13, 2007 
attainment plan) were approved on April 8, 2010 (75 FR 17763). 
Therefore, in this action, EPA is only proposing to approve the 
attainment demonstration for the 1997 8-hour ozone NAAQS for the 
Philadelphia Area.
    In a separate and concurrent process, EPA is conducting a process 
to find adequate the MVEBs for New Castle, Kent, and Sussex Counties 
which are associated with the Delaware attainment demonstration for the 
Philadelphia Area. Concurrently with EPA's proposal to approve the SIP, 
a notice will be posted on EPA's Web site at http://www.epa.gov/otaq/stateresources/transconf/currsips.htm for the purpose of opening a 30-
day public comment period on the adequacy of the MVEBs for New Castle, 
Kent and Sussex Counties in the June 13, 2007 SIP revision's attainment 
demonstration for the Philadelphia Area. That notice will inform the 
public of the availability of the Delaware SIP revision on DNREC's Web 
site. Interested members of the public could access Delaware's June 13, 
2007 SIP revision on line at www.regulations.gov, Docket No. EPA-R03-
OAR-2008-0930. Following EPA's public comment period, responses to any 
comments received will be addressed.
    EPA has determined that Delaware's attainment demonstration meets 
the applicable requirements of the CAA because it demonstrates 
attainment by the applicable date of June 15, 2011.\1\ EPA's analysis 
and findings are discussed in this proposed rulemaking. In addition, a 
technical support document (TSD) for this proposal entitled ``Technical 
Support Document for the Modeling and Weight of Evidence Portions of 
the State of Delaware's Ozone State Implementation Plan,'' dated May 2, 
2012 (referred to herein as the Attainment TSD) is available on line at 
www.regulations.gov, Docket No. EPA-R03-OAR-2008-0930. The Attainment 
TSD provides additional explanation on EPA's analysis supporting this 
proposed approval of the attainment demonstration.
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    \1\ As explained in detail in Section II, EPA approved on 
January 21, 2011 a one-year extension of the Philadelphia Area's 
attainment date from June 2010 to June 2011. 76 FR 3840 (Jan. 21, 
2011).
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II. What is the background for EPA's proposed action?

    On June 13, 2007, DNREC submitted a comprehensive SIP revision to 
meet the requirements for an attainment plan for the 1997 8-hour ozone 
NAAQS for the Philadelphia Area. On May 8, 2009 (74 FR 21599), EPA 
proposed to disapprove the ozone attainment demonstration element of 
the June 13, 2007 attainment plan of the comprehensive SIP revision. 
EPA proposed to disapprove the attainment demonstration of the 1997 8-
hour NAAQS for the Philadelphia Area because EPA determined that the 
photochemical modeling did not demonstrate attainment, and the weight 
of evidence analysis used to support the attainment demonstration did 
not provide sufficient evidence that the Philadelphia Area would attain 
the 1997 8-hour ozone NAAQS by the June 2010 deadline for the ozone 
nonattainment areas classified as moderate. On December 9, 2011 (76 FR 
76929), EPA withdrew the May 8, 2009 proposed disapproval of the 
attainment demonstration for the Philadelphia Area based on ambient air 
quality monitoring data demonstrating attainment.
    Moderate areas are required to attain the 1997 8-hour ozone NAAQS 
by no later than six years after designation. Therefore, the 
Philadelphia Area was to attain by June 15, 2010. See 40 CFR 51.903 and 
69 FR 23951 (April 30,

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2004). However, the Philadelphia Area qualified for a one year 
extension of its attainment date, based on the complete, certified 
ambient air quality data for the 2009 ozone season. See 40 CFR 51.907. 
On January 21, 2011 (76 FR 3840), EPA approved a one year extension of 
the Philadelphia Area's attainment date from June 15, 2010 to June 15, 
2011, based in part on air quality data recorded during the 2009 ozone 
season.
    On March 26, 2012 (77 FR 17341), EPA published two determinations 
regarding the 1997 8-hour ozone NAAQS for the Philadelphia Area. First, 
EPA made a clean data determination that the Philadelphia Area had 
attained the 1997 8-hour ozone NAAQS. This determination was based upon 
complete, quality assured, and certified ambient air monitoring data 
that showed the Philadelphia Area had monitored attainment of the 1997 
8-hour ozone NAAQS for the 2008-2010 monitoring period. Ambient air 
monitoring data for the 2009-2011 monitoring period is consistent with 
continued attainment. Second, pursuant to section 181(b)(2)(A) of the 
CAA, EPA made a determination of attainment that the Philadelphia Area 
had attained the 1997 8-hour ozone NAAQS by its attainment date of June 
15, 2011.

III. What are the CAA requirements for a moderate 8-hour ozone 
nonattainment area?

    In 1997, EPA revised the health-based NAAQS for ozone, setting it 
at 0.08 parts per million (ppm) averaged over an 8-hour time frame. EPA 
set the 1997 8-hour ozone standard based on scientific evidence 
demonstrating that ozone causes adverse health effects at lower ozone 
concentrations and over longer periods of time than was understood when 
the pre-existing 1-hour ozone standard was set. EPA determined that the 
1997 8-hour standard would be more protective of human health, 
especially for children and adults who are active outdoors, and 
individuals with a pre-existing respiratory disease, such as asthma.
    On April 30, 2004 (69 FR 23951), EPA finalized its attainment/
nonattainment designations for areas across the country with respect to 
the 1997 8-hour ozone standard. These actions became effective on June 
15, 2004. In addition, on April 30, 2004 (69 FR 23951), EPA promulgated 
its Phase 1 Implementation Rule which provided how areas designated 
nonattainment for the 1997 8-hour ozone standard would be classified. 
Among those nonattainment areas is the Philadelphia Area, which 
includes all three counties in Delaware, five counties in eastern 
Pennsylvania, one county in Maryland, and eight counties in southern 
New Jersey. Therefore, the Philadelphia Area includes New Castle, Kent 
and Sussex Counties in Delaware. EPA's Phase 2 Implementation Rule 
published on November 29, 2005 (70 FR 71612) specifies that states must 
submit attainment demonstrations for their nonattainment areas to EPA 
by no later than three years from the effective date of designation, 
that is, by June 15, 2007. See 40 CFR 51.908(a).
    Pursuant to the Phase 1 Implementation Rule, an area was classified 
under subpart 2 of Title I of the CAA based on its 8-hour design value 
if it had a 1-hour design value at or above 0.12 ppm. Based on this 
criterion, the Philadelphia Area was classified under subpart 2 as a 
moderate nonattainment area. The Phase 2 Implementation Rule addressed 
the control obligations that apply to areas classified under subpart 2. 
Among other things, the Phase 1 and 2 Implementation Rules outline the 
required SIP elements and deadlines for those various requirements in 
areas designated as moderate nonattainment.

IV. What is included in Delaware's SIP submittal?

    On June 13, 2007, Delaware submitted a comprehensive attainment 
plan as a SIP revision for the 1997 8-hour ozone NAAQS. The SIP 
revision included an attainment demonstration with MVEBs, the ROP plan 
with MVEBs, a RACM/RACT analysis, the 2002 base year emissions 
inventory, and contingency measures. The attainment demonstration of 
the June 13, 2007 SIP submittal is the only subject of this proposed 
rulemaking. In a separate and concurrent process, EPA is proposing an 
adequacy determination for the 2009 MVEBs associated with the ozone 
attainment demonstration for all three counties of Delaware. The other 
elements of the June 13, 2007 SIP submittal were approved by EPA on 
April 8, 2010 (75 FR 17863).

V. What is EPA's review of Delaware's modeled attainment demonstration 
and weight of evidence analysis for the Philadelphia area?

    Section 110(a)(2)(K) of the CAA requires states to prepare air 
quality modeling to show how they will meet ambient air quality 
standards. EPA determined that areas classified as moderate or above 
must use photochemical grid modeling or any other analytical method 
determined by the Administrator to be at least as effective to 
demonstrate attainment of the ozone health-based standard by the 
required attainment date (November 29, 2005, 70 FR 71612, and 40 CFR 
51.908). On April 30, 2004 (69 FR 23951 and 40 CFR 51.903), EPA 
specified how areas would be classified with regard to the 8-hour ozone 
standard set by EPA in 1997. On April 30, 2004 (69 FR 23858), EPA 
followed these procedures and classified the Philadelphia Area as 
moderate, and the nonattainment area was required to attain the 1997 8-
hour ozone standard by June 2010. Because the attainment date was June 
2010 for moderate areas, states had to achieve emission reductions by 
the ozone season of 2009 in order for ozone concentrations to be 
reduced and show attainment during the last complete ozone season 
before the 2010 deadline.

A. EPA Guidance for Using Models To Determine Attainment

    EPA's photochemical modeling guidance is found at Guidance on the 
Use of Models and Other Analyses for Demonstrating Attainment of Air 
Quality Goals for Ozone, PM 2.5, and Regional Haze, EPA-454/
B-07-002, April 2007. The photochemical modeling guidance is divided 
into two parts. One part describes how to use a photochemical grid 
model for ozone to assess whether an area will come into attainment of 
the air quality standard. A second part describes how the user should 
perform supplemental analyses, using various analytical methods, to 
determine if the model over predicts, under predicts, or accurately 
predicts the air quality improvement projected to occur by the 
attainment date. The guidance indicates that states should review these 
supplemental analyses, in combination with the modeling analysis, in a 
``weight of evidence'' assessment to determine whether each area is 
likely to achieve timely attainment.
    A description of how the attainment demonstration from the June 13, 
2007 SIP revision addresses this EPA modeling guidance for a modeled 
attainment demonstration can be found in the Attainment TSD, available 
on line at www.regulations.gov, Docket number EPA-R03-OAR-2008-0930.
    In the June 13, 2007 SIP revision, the photochemical grid model 
used projected emissions for 2009, including emission changes due to 
regulations Delaware and its neighboring states were planning to 
implement and expected growth by the 2009 ozone season. Meteorological 
conditions from 2002, the same as the base year modeling, were used in 
the projection modeling for 2009. Using the base case meteorology 
allows the effect of changes in states' emissions to be determined

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without being influenced by yearly fluctuations in meteorology and is 
consistent with EPA guidance.
    The attainment test used in the Philadelphia Area modeling 
demonstration involved the application of model-based relative response 
factors (RRFs) to base year design values at each monitor to produce 
projected future year design values (2009). The projected 2009 design 
values represent design values that should result from emission 
controls Delaware and other states planned to have in place in 2009. As 
discussed in the Attainment TSD, the 2009 design values should be less 
than or equal to 84 parts per billion (ppb) at all monitoring stations 
to meet the attainment test. The SIP modeling predicts that in 2009, 
the Philadelphia Area will not pass the attainment test since design 
values are projected to be over the 84 ppb standard.
    In summary, the basic photochemical grid modeling presented in the 
Delaware SIP revision meets EPA's guidelines and when used with the 
methods recommended in EPA's modeling guidance, is acceptable to EPA. 
However, when EPA's attainment test is applied to the modeling results, 
the 2009 ozone design value is predicted to be 91 ppb in the 
Philadelphia Area. Thus, based on EPA's modeled attainment test, the 
Philadelphia Area has not demonstrated that it will reach attainment of 
the 1997 8-hour ozone standard in the attainment year with the modeled 
emission reduction strategies committed to by Delaware and the 
neighboring states in the Ozone Transport Region (OTR). Therefore, a 
weight of evidence (WOE) analysis was used by Delaware and reviewed by 
EPA to demonstrate attainment of the 1997 8-hour ozone standard in the 
Philadelphia Area.

B. Weight of Evidence Demonstration

    EPA's modeling guidance describes how to use a photochemical grid 
model and additional analytical methods to complete a WOE analysis to 
estimate if emissions control strategies will lead to attainment of the 
1997 8-hour ozone NAAQS. A WOE analysis is a supporting analysis that 
helps to determine if the results of the photochemical modeling system 
are correctly (or not correctly) predicting future air quality.
    The WOE analysis presented in the Delaware SIP revision describes 
the analyses performed, databases used, key assumptions and outcomes of 
each analysis, and why the evidence, viewed as a whole, supports a 
conclusion that the Philadelphia Area will attain the NAAQS despite the 
model prediction that some monitors' future design values exceed the 
1997 8-hour ozone NAAQS.
    EPA's review of the WOE analysis in the Attainment TSD included the 
following: (1) A comparison of model-predicted 2009 ozone design values 
to monitored design values for 2006-2011; (2) an analysis of recent 
ozone trends in the Philadelphia Area; and (3) alternative methods for 
calculating the 2009 ozone design value. As discussed in detail in the 
Attainment TSD, the 2009 model over predicted ozone design values for 
2006-2011 for most cases. Further, in the Attainment TSD, EPA's 
analysis concurs with Delaware's analysis of significant declining 
trends in the Philadelphia Area ozone design values. The Attainment TSD 
concluded that additional emissions reductions have continued to occur 
due mostly to local controls in each nonattainment area and to a few 
reductions in major sources due to initiatives in the OTR. The 
Attainment TSD noted that monitored ozone design values for each of the 
Philadelphia Area monitors continued to decline and to show attainment 
in 2010 and 2011.
    As discussed in detail in the Attainment TSD, Delaware's attainment 
demonstration also asserted an alternative baseline concentration could 
be used to demonstrate attainment. However, EPA determined in the 
Attainment TSD that the modeling would still show nonattainment even 
with this alternative baseline value. Likewise, EPA determined in the 
Attainment TSD that Delaware's recalculation of 2009 modeled ozone 
design values with a relative response factor in Delaware's June 13, 
2007 SIP revision reduced the modeled 2009 ozone design values slightly 
but the model still over predicts the actual monitored 2009 design 
values. In conclusion, in the Attainment TSD, EPA determined with the 
benefit of 2009 monitored design values that the model in Delaware's 
June 13, 2007 SIP revision over predicts actual concentrations even 
when model adjustments are made as discussed herein to attempt to 
account for model over prediction.
    EPA has determined that the Delaware photochemical grid modeling 
results predict a 2009 projected design value well above the 1997 8-
hour ozone NAAQS for the Philadelphia Area. However, after taking into 
account WOE arguments regarding model over prediction of the 2009 
monitored design values and recent ozone design value trends, which 
show attainment of the standard by 2010, EPA determined that the 
Delaware SIP has demonstrated attainment of the ozone standard by the 
extended attainment date of June 2011 as discussed in detail in the 
Attainment TSD.

VI. Proposed Action

    EPA is proposing to approve the 1997 8-hour ozone NAAQS attainment 
demonstration, included in Delaware's June 13, 2007 attainment plan SIP 
revision, as demonstrating attainment for the Philadelphia Area by the 
applicable attainment date of June 15, 2011. EPA is soliciting public 
comments on the issues discussed in this document. These comments will 
be considered before taking final action.

VII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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 approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and

[[Page 46994]]

     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 (59 FR 7629, February 16, 1994).
    In addition, this proposed rule, pertaining to the 1997 8-hour 
ozone attainment demonstration for the Philadelphia Area submitted by 
Delaware on June 13, 2007, does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen dioxide, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: July 26, 2012.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2012-19173 Filed 8-6-12; 8:45 am]
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