[Federal Register Volume 78, Number 242 (Tuesday, December 17, 2013)]
[Rules and Regulations]
[Pages 76209-76212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-29803]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2010-0141; FRL-9904-14-Region-3]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Attainment Plan for the Philadelphia-Wilmington, 
Pennsylvania-New Jersey-Delaware Nonattainment Area for the 1997 Annual 
Fine Particulate Matter Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the State of Delaware. The SIP revision (also referred to 
herein as ``the attainment plan'') demonstrates Delaware's attainment 
of the 1997 annual fine particulate matter (PM2.5) national 
ambient air quality standard (NAAQS) (the 1997 PM2.5 NAAQS) 
for the Philadelphia-Wilmington, Pennsylvania-New Jersey-Delaware (PA-
NJ-DE) nonattainment area (Philadelphia Area). The SIP revision 
includes Delaware's attainment demonstration for the Philadelphia Area 
and motor vehicle emission budgets (MVEBs) used for transportation 
conformity purposes for New Castle County, Delaware. The attainment 
plan also includes an analysis of reasonably available control measures 
(RACM) and reasonably available control technology (RACT), a base year 
emissions inventory, and contingency measures. This action is being 
taken in accordance with the Clean Air Act (CAA).

DATES: This final rule is effective on January 16, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2010-0141. All documents in the docket are listed in 
the www.regulations.gov Web site. Although listed in the electronic 
docket, some information is not publicly available, i.e., confidential 
business information (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 through www.regulations.gov or in hard 
copy 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. 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:

I. Background

    By letter dated April 3, 2008, Delaware submitted the SIP revision 
at issue to EPA. By letter dated April 25, 2012, Delaware submitted 
revisions to the portion of the SIP revision relating to the MVEBs. The 
April 25, 2012 MVEBs revised submittal replaced the previously 
submitted 2009 MVEBs with a budget that is based on the Motor Vehicle 
Emissions Simulator (MOVES) model and included MVEBs for 2012. On 
November 19, 2012 (77 FR 69399), EPA published a notice of proposed 
rulemaking seeking comment on EPA's proposed approval of this SIP 
revision, including the portion relating to the 2009 and 2012 MVEBs for 
transportation conformity purposes for New Castle County, Delaware 
(hereinafter referred to as ``the NPR''). In response to the NPR, EPA 
received a single comment dated November 30, 2012. A summary of the 
November 30, 2012 comment and EPA's response is provided in Section III 
(Summary of Public Comment and EPA Response) of this final rulemaking 
action.
    On March 4, 2013, EPA took final rulemaking action on the portion 
of the attainment plan relating to the base year emissions inventory. 
See 78 FR 10420. As a result of this March 2013 final rulemaking 
action, no further action needs to be taken on such portion of the 
April 3, 2008 SIP revision. Therefore, this final rulemaking action 
relates to the remaining portions of the attainment plan, including: 
(1) An attainment demonstration for the Delaware portion of the 
Philadelphia Area; (2) 2009 and 2012 MVEBs used for transportation 
conformity purposes for New Castle County, Delaware; (3) an analysis of 
RACM and RACT; and, (4) contingency measures.
    On September 19, 2013 (78 FR 57473), EPA published a supplemental 
NPR that revised and expanded the basis for proposing approval of 
Delaware's attainment plan for the 1997 annual PM2.5 NAAQS 
in light of the developments since EPA issued its initial proposal on 
November 19, 2012 (hereinafter referred to as ``the supplemental 
NPR''). Principally, the supplemental NPR addressed the potential 
effects of a January 4, 2013 decision of the United States Court of 
Appeals for the District of Columbia Circuit (D.C. Circuit Court) 
remanding to EPA two final rules implementing the 1997 PM2.5 
NAAQS. In the supplemental NPR, EPA also revised its proposed approval 
of Delaware's

[[Page 76210]]

attainment plan for the 1997 PM2.5 NAAQS to clarify that EPA 
was not relying upon certain regulations which were part of the 
attainment plan, because such regulations were not necessary to 
demonstrate attainment of the 1997 PM2.5 NAAQS. As part of 
this supplemental NPR, EPA also proposed to approve the 2009 and 2012 
MVEBs used for transportation conformity purposes for New Castle 
County, Delaware. EPA did not receive any comments on the September 19, 
2013 supplemental NPR.

II. Summary of SIP Revision

    The portions of the SIP revision that are subject to this action 
demonstrate Delaware's attainment of the 1997 PM2.5 NAAQS 
and includes: (1) Delaware's attainment demonstration for the Delaware 
portion of the Philadelphia Area and (2) the 2009 and 2012 MVEBs used 
for transportation conformity purposes for New Castle County, Delaware. 
The remaining portion of the attainment plan also includes an analysis 
of RACM/RACT and contingency measures. The attainment plan does not 
include a Reasonable Further Progress (RFP) plan; however, for reasons 
explained in the November 19, 2012 NPR and the supplemental NPR, EPA 
proposed to make a determination that an RFP plan is not required, 
because Delaware demonstrated that attainment with the 1997 
PM2.5 NAAQS occurred in the Delaware portion of the 
Philadelphia Area by the attainment date of April 2010. The rationale 
for EPA's proposed action is explained in the NPR and the supplemental 
NPR and will not be restated here.

III. Summary of Public Comment and EPA Response

    Comment: The commenter endorsed EPA's proposed approval and stated 
that EPA should approve Delaware's attainment plan and the MVEBs 
included in the attainment plan. The commenter stated his belief that 
the reduction of PM2.5, sulfur dioxide (SO2) and 
nitrogen oxides (NOX) emissions in Delaware's attainment 
plan will allow the Area to reach an overall particulate attainment 
level. Further, the commenter supported approval of the MVEBs because 
the MVEBs are consistent with Delaware's plan for attaining the 1997 
PM2.5 NAAQS. However, the commenter expressed some concerns 
about Delaware's approach to attaining the 1997 PM2.5 NAAQS 
without regulating ammonia (NH3) and volatile organic 
compounds (VOCs). While the commenter noted that Delaware has achieved 
attainment of the 1997 PM2.5 NAAQS, the commenter also 
included a broad statement that New Castle County has not achieved 
attainment with unspecified ``air quality standards prescribed by EPA's 
regulations.''
    Response: EPA thanks the commenter for endorsing the approval of 
the Delaware attainment plan and the MVEBs included in the attainment 
plan and appreciates that the comments submitted also fulfilled an 
academic writing assignment. EPA agrees with the commenter's conclusion 
that the attainment plan submitted by Delaware adequately addresses 
emissions of PM2.5 and the PM2.5 precursors 
SO2 and NOX in order to provide for attainment of 
the 1997 PM2.5 NAAQS. Moreover, EPA notes that the Agency 
has specifically reexamined the issue of whether the attainment plan 
addresses the correct PM2.5 precursors in the supplemental 
NPR. As indicated in the supplemental NPR, EPA has concluded that 
regulation of emissions of VOC and NH3 from sources in 
Delaware was not necessary in order to provide for attainment of the 
1997 PM2.5 NAAQS in the Philadelphia Area.
    As to the commenter's divergent opinions that: (1) Delaware has 
achieved attainment with the NAAQS at issue and (2) New Castle County 
has not achieved attainment with some unspecified EPA air quality 
regulations, it is important to note that the SIP revision at issue 
pertains to the Delaware's attainment plan for the 1997 annual 
PM2.5 NAAQS. The record presented clearly supports EPA's 
approval of this attainment plan for this purpose. Additionally, EPA 
refers the commenter to EPA's May 16, 2012 determination that the 
Philadelphia Area attained the 1997 annual PM2.5 NAAQS by 
the applicable date, April 5, 2010, and EPA's issuance of a clean data 
determination for the Philadelphia Area. See 77 FR 28782. The 
administrative record for today's final rulemaking action, in 
conjunction with EPA's May 16, 2012 final rulemaking action, clearly 
supports the finding that Delaware has achieved the NAAQS at issue. Due 
to a lack of specificity on the commenter's part, EPA is unable to 
further respond to the commenter's concerns relating to New Castle 
County's attainment with unspecified EPA air quality regulations.

IV. Final Action

    As the base year emissions inventory portion of the SIP revision 
was previously approved through a separate action (see 78 FR 10420), 
EPA is approving the remaining portions of the SIP revision, which was 
submitted by the State of Delaware on April 3, 2008, and amended on 
April 25, 2012, and includes: (1) The attainment plan for the 1997 
PM2.5 NAAQS for the Delaware portion of the Philadelphia 
Area and (2) the 2009 and 2012 MVEBs for transportation conformity 
purposes for New Castle County, Delaware. The portions of the 
attainment plan which are subject to this final rulemaking action 
include Delaware's attainment demonstration, an analysis of RACM/RACT 
and contingency measures. Through this rulemaking action, EPA is making 
a final determination that Delaware's attainment plan meets the 
applicable requirements of the CAA. For reasons explained in the 
supplemental NPR, EPA revised its original proposed approval of the 
attainment plan to propose approval of Delaware's 1997 PM2.5 
attainment plan as meeting the requirements for attainment plans for 
the 1997 PM2.5 NAAQS, without reliance on the following 
measures identified in the attainment plan: (1) Regulation 1142 Section 
2.0 for NOX emissions at petroleum refineries; (2) certain 
control measures for VOC emissions; and, (3) the Clean Air Interstate 
Rule (CAIR). As discussed in the supplemental NPR, these measures are 
not necessary for the purposes of meeting the requirements for RACM, 
RACT, section 189(e) or the attainment demonstration.

V. Statutory and Executive Order Reviews

A. General Requirements

    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 approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this 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.);

[[Page 76211]]

     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
     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 rule 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.

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 action 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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by February 18, 2014. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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 approving Delaware's SIP revision which 
demonstrates attainment of the 1997 annual PM2.5 NAAQS for 
the Philadelphia Area 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, Incorporation by 
reference, Nitrogen dioxide, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: November 29, 2013.
W.C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart I-- Delaware

0
2. In Sec.  52.420, the table in paragraph (e) is amended by adding the 
entry for the 1997 Annual PM2.5 Attainment Plan for Delaware 
and the Motor Vehicle Emissions Budget for 2009 and 2012 at the end of 
the table to read as follows:


Sec.  52.420  Identification of plan.

* * * * *
    (e) * * *

 
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                                                                  State
 Name of non-regulatory SIP revision   Applicable geographic    submittal               EPA approval date                   Additional explanation
                                                area               date
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                                                                      * * * * * * *
1997 Annual PM2.5 Attainment Plan     Delaware--Philadelphia-       4/3/08  12/17/13 [Insert page number where the    See Sec.   52.427(c).
 for Delaware and the Motor Vehicle    Wilmington,                 4/25/12   document begins].
 Emission Budgets for 2009 and 2012.   Pennsylvania-New
                                       Jersey-Delaware
                                       Nonattainment Area.
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0
3. Section 52.427 is amended by adding paragraph (c) to read as 
follows:


Sec.  52.427  Control strategy: Particulate matter.

* * * * *
    (c) EPA approves the attainment plan for the 1997 annual fine 
particulate matter (PM2.5) national ambient air quality 
standard (NAAQS) for the Philadelphia-Wilmington, Pennsylvania-New 
Jersey-Delaware nonattainment area submitted by the Secretary of the 
Delaware Department of Natural Resources and Environmental Control on 
April 3, 2008, as amended on April 25, 2012. The attainment plan 
includes the attainment demonstration and motor vehicle emission 
budgets in tons per year (tpy) used for transportation conformity 
purposes for New Castle County, Delaware. The attainment plan also 
includes an analysis of reasonably available control measures and 
reasonably available control technology, contingency measures and the 
2002 base year emissions inventory. The 2002 base year emissions 
inventory was approved in a separate rulemaking action on March 4, 2013 
(78 FR 10420).

[[Page 76212]]



                    Delaware's Motor Vehicle Emission Budgets for the 1997 Annual PM2.5 NAAQS
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                  Type of control strategy SIP                         Year             VOC             NOX
----------------------------------------------------------------------------------------------------------------
Attainment Plan (Milestone Year)................................            2009             257           8,448
Attainment Plan (Out Year)......................................            2012             199           6,273
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[FR Doc. 2013-29803 Filed 12-16-13; 8:45 am]
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