[Federal Register Volume 74, Number 88 (Friday, May 8, 2009)]
[Proposed Rules]
[Pages 21599-21604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10680]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2008-0930; FRL-8901-6]
Approval and Promulgation of Air Quality Implementation Plans;
Delaware; Attainment Demonstration for the Philadelphia-Wilmington-
Atlantic City Moderate 8-Hour Ozone Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to disapprove the ozone attainment
demonstration portion of a comprehensive State Implementation Plan
(SIP) revision submitted by the State of Delaware to meet the Clean Air
Act (CAA) requirements for attaining the 8-hour ozone national ambient
air quality standard (NAAQS) for the Delaware portion of the
Philadelphia-Wilmington-Atlantic City moderate nonattainment area
(Philadelphia Area). EPA is proposing to disapprove Delaware's
attainment demonstration of the 8-hour ozone NAAQS for the Philadelphia
Area because EPA has determined that the photochemical modeling does
not demonstrate attainment, and the weight of evidence analysis that
Delaware uses to support the attainment demonstration does not provide
the sufficient evidence that the Delaware portion of the Philadelphia
nonattainment area will attain the NAAQS by the June 2010 deadline.
DATES: Written comments must be received on or before June 8, 2009.
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. E-mail: [email protected].
C. Mail: EPA-R03-OAR-2008-0930, Cristina Fernandez, Chief, Air
Quality Planning Branch, Mailcode 3AP21, 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
[[Page 21600]]
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 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 e-mail.
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 e-
mail comment directly to EPA without going through 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
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 &
Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover,
Delaware.
FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What Action is EPA Proposing?
II. What Are the CAA Requirements for a Moderate 8-Hour Ozone
Nonattainment Area?
A. History and Time Frame for the State's Attainment
Demonstration SIP
B. CAA Requirements
III. What Was Included in Delaware's SIP Submittal?
IV. What Is EPA's Review of Delaware's Modeled Attainment
Demonstration and Weight of Evidence (WOE) Analysis for the Delaware
Portion of the Philadelphia Area?
V. What Are the Consequences of a Disapproved SIP?
A. What Are the CAA's Provisions for Sanctions?
B. What Are the CAA's Federal Implementation Plan (FIP)
Ramifications if a State Fails To Submit an Approvable Plan?
C. What Are the Ramifications Regarding Conformity?
VI. What Is EPA's Conclusion?
VII. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132, Federalism
F. Executive Order 13175, Coordination With Indian Tribal
Governments
G. Executive Order 13045, Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211, Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. What Action Is EPA Proposing?
EPA is proposing to disapprove the SIP revision consisting of the
8-hour ozone attainment demonstration plan for the Philadelphia-
Wilmington- Atlantic City moderate nonattainment area, submitted by the
Delaware Department of Natural Resources and Environmental Control
(DNREC) on June 13, 2007.
EPA is proposing to disapprove Delaware's 8-hour ozone attainment
demonstration plan because EPA has determined that the photochemical
modeling does not demonstrate attainment, and the weight of evidence
analysis that Delaware uses to support the attainment demonstration
does not provide the sufficient evidence that the Delaware portion of
the Philadelphia nonattainment area will attain the NAAQS by the June
2010 deadline.
EPA's analysis and findings are discussed in this proposed
rulemaking and a more detailed discussion is contained in the Technical
Support Document (TSD) for this proposal which is available on line at
www.regulations.gov, Docket number EPA-R03-OAR-2008-0930.
II. What Are the CAA Requirements for a Moderate 8-Hour Ozone
Nonattainment Area?
A. History and Time Frame for the State's Attainment Demonstration SIP
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
(``8-hour ozone standard'').\1\ EPA set the 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 8-hour standard would be more protective
of human health, especially children and adults who are active
outdoors, and individuals with a pre-existing respiratory disease, such
as asthma.
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\1\ In 2008, EPA promulgated a more stringent 8-hour standard of
0.075 ppm. 73 FR 16436 (March 27, 2008). All references to the 8-
hour ozone standard in this rulemaking refer to the 8-hour standard
promulgated in 1997.
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On April 30, 2004 (69 FR 23951), EPA finalized its attainment/
nonattainment designations for areas across the country with respect to
the 8-hour ozone standard. These actions became effective on June 15,
2004. In addition, EPA promulgated its Phase 1 Rule for implementation
of the 8-hour standard, which provided how areas designated
nonattainment for the 8-hour ozone standard would be classified. April
30, 2004 (69 FR 23951). Among those nonattainment areas is the
Philadelphia Area. The Philadelphia Area includes three counties in
Delaware, five counties in eastern Pennsylvania, one county in
Maryland, and eight counties in southern New Jersey. The Delaware
portion of the NAA consists of the following counties: New Castle, Kent
and Sussex. EPA's Phase 2 8-hour ozone implementation rule, published
on November 29, 2005 (70 FR 71612) specifies that states must submit
attainment demonstrations for their nonattainment areas to the 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).
[[Page 21601]]
B. CAA Requirements
Pursuant to Phase 1 of the 8-hour ozone implementation rule,
published on April 30, 2004 (69 FR 23951), 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 0.121 ppm. Based on this
criterion, the Philadelphia Area was classified under subpart 2 as
moderate nonattainment areas. On November 29, 2005 (70 FR 71612), EPA
published Phase 2 of the 8-hour ozone implementation rule in which it
addresses the control obligations that apply to areas classified under
subpart 2. Among other things, the Phase 1 and 2 rules outline the SIP
requirements and deadlines for various requirements in areas designated
as moderate nonattainment.
III. What Was Included in Delaware's SIP Submittals?
On June 13, 2007, Delaware submitted a comprehensive 8-hour ozone
SIP. The SIP submittal included an attainment demonstration plan, a
reasonable further progress (RFP) plan, reasonably available control
measures analysis, contingency measures, on-road motor vehicle emission
budgets, and the 2002 base year emissions inventory. These SIP
revisions were subject to notice and comment by the public. The State
did not receive any comments on the proposed SIP revisions. Only the
attainment demonstration sections of this SIP submittal are
the subject in this rulemaking. The other sections of this SIP
submittal will be addressed in a separate rulemaking.
IV. What Is EPA's Review of Delaware's Modeled Attainment Demonstration
and Weight of Evidence (WOE) Analysis for the Delaware Portion of the
Philadelphia Area?
Section 110(a)(2)(K) of the Clean Air Act requires states to
prepare air quality modeling to show how they will meet ambient air
quality standards. EPA determined that states 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 in areas classified as `moderate' or
above, and to do so by the required attainment date. See, 40 CFR
51.908(c). EPA specified how areas would be classified with regard to
the 8-hour ozone standard set by EPA in 1997. See, 40 CFR 51.903. EPA
followed these procedures and the Philadelphia Area was classified by
EPA as being in moderate nonattainment of the 8-hour ozone NAAQS. See,
69 FR 23858 (April 30, 2004). The attainment date is June 2010 for
moderate areas; therefore, states must achieve emission reductions by
the ozone season of 2009 in order for ozone concentrations to be
reduced, and attainment achieved during the last complete ozone season
before the 2010 deadline.
As more fully described in the TSD, the basic photochemical grid
modeling used by Delaware in the Delaware SIP meets EPA's guidelines,
and when used with the methods recommended in EPA's modeling guidance,
is acceptable to EPA. 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, PM2.5, and
Regional Haze, EPA-454/B-07-002, April 2007. Using EPA's methods, the
photochemical grid model, containing the modeled emission reduction
strategies prepared by Delaware and the Ozone Transport Commission
states, predicts that the 2009 ozone design value in the Philadelphia
Area would be 91 parts per billion (ppb). Thus, the photochemical model
predicts the Philadelphia Area will not reach the 84 ppb concentration
level needed to show attainment of the ozone standard by the 2009 ozone
season.
EPA's 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. The second part of EPA's photochemical modeling guidance
strongly recommends states complement the photochemical air quality
modeling with additional analyses (WOE analyses) in situations where
modeling predicts the Philadelphia Area to be close to (within several
parts per billion of) the ozone standard. A WOE analysis is any set of
alternative methods or analyses that, when considered together, and in
combination with the modeling analysis, supports the conclusion that
the NAAQS has been attained, even in instances when the modeling
results alone do not predict attainment. EPA notes in Section 2.3 of
its guidance that if the concentration predicted by the photochemical
model is 88 ppb or higher, it is ``far less likely that the more
qualitative arguments made in a weight of evidence determination can be
sufficiently convincing to conclude that the NAAQS will be attained.''
The Philadelphia Area photochemical grid modeling predicts a 2009
projected design value well above the air quality health standard (91
ppb vs. 84 ppb). As stated above, EPA's photochemical modeling guidance
indicates that it is difficult to make a convincing argument to show
that ozone will be less than 84 ppb when model predicted concentrations
are greater than 88 ppb.
Delaware needed to supply a substantial amount of evidence that
the model is seriously overestimating future ozone concentrations. As
discussed in detail in the TSD at pages 8 through 17, EPA believes that
modeling and air quality studies do not support an argument that the
attainment will be reached by the June 2010 attainment date.
Additionally, the present air quality (2007 design value 93 ppb,
2008 preliminary design value 92 ppb) also does not support the
hypothesis presented in Delaware's WOE analysis that the models are
incorrect. Present air quality concentrations should be closer to the
standard since the Philadelphia Area is only two years away from its
attainment deadline.
The WOE analysis presented in the Delaware SIP revision for the
Philadelphia Area includes the following:
A comparison of predicted 2009 ozone design values and
current projected design values for 2006;
An analysis of recent ozone trends in the Philadelphia
Area;
Alternative methods for calculating the 2009 ozone design
value;
An analysis of model-predicted regional transport; and
An analysis of model sensitivity to emission changes.
The basic premise of all of the WOE arguments in the Delaware SIP
revision for the Philadelphia Area is that the Community Multi-scale
Air Quality Model version 4.4 (CMAQ), when applied according to EPA
guidance, under-predicts the reduction in ozone that can be expected
from the emission control strategies contained in the SIP.
The overarching reason why EPA is not persuaded that the WOE
results are robust enough to predict that the Philadelphia Area will
attain the standard is that the information and calculations provided
in the Delaware SIP revision selectively emphasize methods or data that
support the claim that the nonattainment areas could attain the
standard by the deadline, while ignoring equally legitimate methods
that would tend to support the modeling results that do not predict
attainment. For example, one of Delaware's methods of adjusting the
modeled results uses alternative ways of calculating the base air
quality value for 2002. The Delaware SIP revision for the Philadelphia
Area uses a straight five-year average of the fourth-highest design
[[Page 21602]]
value from 2000 to 2004. EPA's modeling guidance recommends using an
average of the three years of design value centered on 2002, which
creates a weighted five-year average. While Delaware's SIP revision
notes that EPA's method of providing a weighted average baseline value
weights the base year of 2002 more heavily than other years, EPA
intended this, so that the resulting value was influenced the most by
the ozone data from the base year of the emission inventory. There are
other ways of calculating a baseline value that the State did not use.
For example, for the peak ozone site of the Philadelphia Area at
Colliers Mills:
The EPA guideline method baseline is 105.7 ppb;
The Delaware alternative baseline is 104 ppb;
The 2002 design value is 112 ppb; and
The 2003 designation design value, centered on 2002, is
105.7 ppb.
Various methods could result in 2002's base year ozone of two ppb lower
than the modeling guidance method (Delaware's five year average
centered on 2002) or as much as 7 ppb higher than the guidance method
(single design value from 2002). Delaware relies on the lower end of
the range of possible results, and this brings the modeling result
closer to attainment.
The ``sufficiently convincing'' WOE analysis our guidance suggests
is needed when an area's design value is above 88 ppb, should not be
based on a one-sided consideration of only those alternatives that tend
to show that and area will attain the ozone standard. To be
``sufficiently convincing,'' the WOE should evaluate other reasonable
variations on EPA's methods that reinforce the modeling results that
predict the Philadelphia Area will not attain the ozone standard by
2010. Although Delaware has provided a WOE analysis it believes
supports its case of attainment in 2010, EPA's evaluation, as set forth
at length in the TSD, concludes that the WOE does not demonstrate that
the proposed adjustments to the photochemical grid model's attainment
year forecast will give a more accurate answer than the calculations
based on EPA's recommendations in Section 2.3 and 7.2 of its modeling
guidance.
In general, EPA's conclusions concerning the modeled attainment
demonstration and WOE analysis provided in the Delaware SIP revision
for its portion of the Philadelphia Area can be summarized from the TSD
as follows:
The modeling used in the Philadelphia Area applies an
appropriate photochemical grid model and follows EPA's guidance
methods, but does not predict attainment in June 2010.
Regardless of the issues raised by Delaware regarding the
performance of EPA's recommended air quality models, the air quality
measured during 2007 exceeded the ozone standard by a significant
margin. Even a linear comparison of the percentage of additional
emission reductions planned by the state with the needed improvement in
air quality between 2007 and 2009 indicates it is unlikely that air
quality will improve enough to meet the ozone standard by 2010.
Preliminary data from the 2008 ozone season also does not support
demonstration of attainment by June 2010.
When comparing the measured ozone concentrations in 2007
and (preliminary) 2008 data to concentrations predicted for 2009, using
EPA's recommended application of the photochemical grid modeling, the
photochemical grid model does not exhibit the magnitude of inaccuracies
suggested in the Delaware SIP revision.
In order to insure attainment, Delaware suggests that
there are additional measures that can achieve emission reductions
which were not included in the original photochemical modeling
analysis. However, the amount of potential air quality benefit from
these measures is difficult to estimate with any degree of certainty.
Based on EPA's evaluation of the potential ozone benefits these
additional measures may provide for the Philadelphia Area, attainment
of the ozone standard in 2010 cannot be achieved through the adoption
of these measures.
The Philadelphia Area attainment demonstration greatly
relied on adjustments to the baseline assumptions which formed the
basis of the photochemical modeling analysis. These adjustments to the
base year starting value and the amount of reduction in ozone from 2002
to 2009 differ from EPA's modeling guidance, and, more importantly, are
not sufficiently justified and are weighted toward a conclusion that
Philadelphia Area will attain the standard.
The Philadelphia Area attainment demonstration greatly
relied on research which evaluated the impact of a widespread power
blackout to develop an alternative approach to estimating anticipated
air quality improvements from upwind power plants. While EPA believes
that this approach provides some insight into the transport of ozone
precursors, a critical review of all the research available to EPA
leads EPA to disagree with Delaware's premise that the 2009 modeled
design values should be adjusted downward for alleged model under-
predictions of ozone concentration reductions from emission reductions.
A detailed discussion of the EPA's evaluation of the modeled attainment
demonstration and WOE analysis contained in the Delaware SIP for the
Philadelphia Area is located in the TSD entitled, Technical Support
Document for the Modeling and Weight of Evidence (WOE) Portions of the
State of Delaware's Ozone State Implementation Plan (SIP) Entitled
``Delaware State Implementation Plan for Attainment of the 8-Hour Ozone
National Ambient Air Quality Standard Reasonable Further Progress and
Attainment Demonstration, June 2007.''
EPA has carefully evaluated the information provided by Delaware
and other information it deems relevant to help predict what the air
quality is likely to be by the 2009 ozone season. After careful
consideration of all the relevant information, EPA finds that there is
not sufficiently convincing evidence that the Philadelphia Area will
attain the 8-hour ozone NAAQS in 2010. The Delaware SIP revision for
the Delaware portion of the Philadelphia Area does not satisfy the
Clean Air Act requirement that State Implementation Plans provide for
attainment of the NAAQS by the applicable attainment date of June 2010.
V. What Are the Consequences of a Disapproved SIP?
This section explains the consequences of a disapproval of a SIP
under the CAA. The CAA provides for the imposition of sanctions and the
promulgation of a Federal Implementation Plan (FIP) if states fail to
submit a plan that corrects any deficiencies identified by EPA in its
disapproval.
A. What Are the CAA Provisions for Sanctions?
If EPA disapproves a required SIP or component of a SIP for an area
designated nonattainment, such as the Attainment Demonstration SIP,
section 179(a) provides for the imposition of sanctions unless the
deficiency is corrected within 18 months of the final rulemaking of
disapproval. The first sanction would apply 18 months after EPA
disapproves the SIP if a State fails to make the required submittal
which EPA proposes to fully or conditionally approve within that time.
Under EPA's sanctions regulations, 40 CFR 52.31, the first sanction
would be 2:1 offsets for
[[Page 21603]]
sources subject to the new source review requirements under section 173
of the CAA. If the State has still failed to submit a SIP for which EPA
proposes full or conditional approval 6 months after the first sanction
is imposed, the second sanction will apply. The second sanction is a
limitation on the receipt of Federal highway funds.
B. What Are the CAA's FIP Ramifications if a State Fails To Submit an
Approvable Plan?
In addition to sanctions, if EPA finds that a State failed to
submit the required SIP revision or disapproves the required SIP
revision, or a portion thereof, EPA must promulgate a FIP no later than
2 years from the date of the finding if the deficiency has not been
corrected within that time period.
C. What Are the Ramifications Regarding Conformity?
One consequence of EPA's disapproval of a control strategy SIP is a
conformity freeze whereby affected Metropolitan Planning Organizations
(MPOs) cannot make new conformity determinations on long range
transportation plans and transportation improvement programs (TIPs). If
we finalize the disapproval of the attainment demonstration SIP, a
conformity freeze will be in place as of the effective date of the
disapproval without a protective finding of the budget. See, 40 CFR
93.120(a)(2). This means that no transportation plan, TIP, or project
not in the first four years of the currently conforming transportation
plan and TIP or that meet the requirements of 40 CFR 93.104(f) during a
12-month lapse grace period \2\ may be found to conform until another
attainment demonstration SIP is submitted and the motor vehicle
emissions budgets are found adequate or the attainment demonstration is
approved. In addition, if the highway funding sanction is implemented,
the conformity status of the transportation plan and TIP will lapse on
the date of implementation of the highway sanctions. During a
conformity lapse, only projects that are exempt from transportation
conformity (e.g., road resurfacing, safety projects, reconstruction of
bridges without adding travel lanes, bicycle and pedestrian facilities,
etc.), transportation control measures that are in the approved SIP and
project phases that were approved prior to the start of the lapse can
proceed during the lapse. No new project-level approvals or conformity
determinations can be made and no new transportation plan or TIP may be
found to conform until another attainment demonstration SIP is
submitted and the motor vehicle emissions budget is found adequate.
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\2\ \\ Additional information on the implementation of the lapse
grace period can be found in the final transportation conformity
rule published on January 24, 2008 (73 FR 4423-4425).
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VI. What Is EPA's Conclusion?
EPA is proposing to disapprove the 8-hour ozone attainment
demonstration plan for the Delaware portion of the Philadelphia Area
submitted by Delaware on June 13, 2007, because Delaware's attainment
demonstration (modeling results and WOE) for the Delaware portion of
the Philadelphia Area does not demonstrate with sufficiently convincing
evidence that the Philadelphia Area will attain the NAAQS by the June
2010 deadline. EPA is deferring action at this time on other SIP
elements submitted by Delaware that are related to the attainment
demonstration, specifically, the RFP plan, reasonably available control
measures analysis, contingency measures, on-road motor vehicle emission
budgets, and the 2002 base year emissions inventory, which will be
addressed in separate rulemakings. 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
A. Executive Order 12866, Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under the EO.
B. Paperwork Reduction Act
This 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 SIP disapproval under section 110 and subchapter
I, part D of the Clean Air Act will not in and of itself create any new
information collection burdens but simply disapproves 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's) 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 action will not have a significant
impact on a substantial number of small entities. This rule does not
impose any requirements or create impacts on small entities. This
proposed SIP disapproval under section 110 and subchapter I, part D of
the Clean Air Act will not in and of itself create any new requirements
but simply disapproves 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 Clean Air Act prescribes that various consequences (e.g., higher
offset requirements) may or will flow from this disapproval does not
mean that EPA either can or must conduct a regulatory flexibility
analysis for this action. Therefore, this 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 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 disapproval 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
disapprove pre-existing requirements under State or local law, and
imposes no new requirements. Accordingly, no
[[Page 21604]]
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 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 disapproves
certain State requirements for inclusion into the SIP and does not
alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, Executive
Order 13132 does not apply to this action.
F. Executive Order 13175, Coordination With Indian Tribal Governments
This 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 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 EO 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 EO has the
potential to influence the regulation. This action is not subject to EO
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 SIP disapproval under section 110
and subchapter I, part D of the Clean Air Act will not in and of itself
create any new regulations but simply disapproves certain State
requirements for inclusion into the SIP.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This 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 No. 104-113, 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 the Office of Management and Budget,
explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
EPA believes that this action is not subject to requirements of
Section 12(d) of NTTAA because application of those requirements would
be inconsistent with the Clean Air Act.
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 Clean Air Act. Accordingly, this action merely proposes to
disapprove certain State requirements for inclusion into the SIP under
section 110 and subchapter I, part D of the Clean Air Act 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.
In addition, this proposed rule pertaining to the Delaware 8-hour
ozone attainment demonstration plan 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, Carbon monoxide,
Nitrogen dioxide, Ozone, Incorporation by reference, Reporting and
recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 28, 2009.
William C. Early,
Acting Regional Administrator, Region III.
[FR Doc. E9-10680 Filed 5-7-09; 8:45 am]
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