Environmental Protection Agency (EPA).
Final rule.
EPA is approving the attainment demonstration for the one-hour ozone national ambient air quality standard (NAAQS) for the Philadelphia-Wilmington-Trenton severe nonattainment area (the Philadelphia area) as a revision to the Delaware State Implementation Plan (SIP). EPA is also approving the Post-1996 rate-of-progress (ROP) plans for the Delaware portion of the Philadelphia area, namely Kent and New Castle Counties. These control strategy plans were submitted by the Delaware Department of Natural Resources and Environmental Control (DNREC). The measures that have been adopted by the State which comprise the control strategies have and will result in significant emission reductions of volatile organic compounds (VOCs) and oxides of nitrogen (NO
This final rule is effective on November 28, 2001.
Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; and Delaware Department of Natural Resources & Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware 19903.
Rose Quinto, (215) 814–2182 at the EPA Region III office above or by e-mail at
This
EPA is fully approving the Post-1996 ROP plans and the one-hour attainment demonstration submitted by Delaware for the Philadelphia area as meeting the requirements of 182(c)(2) and (d) of the Act. The following tables identify submittal dates and amendment dates for the Post-1996 ROP plans and the attainment demonstration.
In a December 16, 1999 (64 FR 70444) notice of proposed rulemaking (the December 16, 1999 NPR), we proposed approval of Delaware's attainment demonstration for the Philadelphia area.
In our December 16, 1999 NPR, we also proposed approval of Delaware's enforceable commitment to submit an adopted ROP plan through the attainment year for the Delaware portion of the Philadelphia area. Delaware has fulfilled that enforceable commitment.
On August 30, 2001 (66 FR 45800), EPA proposed approval of the Post-1996 ROP plans adopted and submitted by
On February 22, 2000 (65 FR 8703), EPA published a notice of availability on guidance memoranda relating to the ten one-hour ozone attainment demonstrations (including the Philadelphia area) proposed for approval or conditional approval on December 16, 1999. The guidance memoranda are entitled: “Guidance on Motor Vehicle Emissions Budgets in One-Hour Ozone Attainment Demonstrations” dated November 3, 1999, and “Guidance on the Reasonably Available Control Measures (RACM) Requirement and Attainment Demonstration Submissions for Ozone Nonattainment Areas” dated November 30, 1999.
On July 28, 2000 (65 FR 46383), EPA published a supplemental notice of proposed rulemaking (SNPR) on the attainment demonstration. In that supplemental notice, we clarified and expanded on two issues relating to the motor vehicle emissions budgets in attainment demonstration SIP revisions. This supplemental notice is discussed in Section I.E.(1) of this document.
In its August 30, 2001 NPR (66 FR 45800) referenced earlier in this document, EPA also proposed approval of Delaware's revisions to its 2005 attainment plan consisting of commitments to: (1) submit by October 31, 2001, additional measures to achieve the additional reductions necessary for attainment, and (2) revise the SIP and the motor vehicle emissions budgets within a year of the release of MOBILE6. EPA received no comments on any of the actions it proposed to approve in the August 30, 2001 NPR. In this final rulemaking action, we are approving Delaware's revised commitments.
The comments EPA did receive on the December 16, 1999 (64 FR 70444) and July 28, 2000 (65 FR 46383) proposals listed in this section, relevant to the Philadelphia area's attainment demonstration, are discussed in Sections I. K. and II. of this document.
On December 16, 1999 (64 FR 70444), EPA proposed approval of the attainment demonstration submitted by the State of Delaware for the Philadelphia area. Our approval was contingent upon certain actions by Delaware. These actions were:
(1) Adopt and submit adequate motor vehicle emissions budgets.
(2) Submit a list of control measures that, when implemented, would be expected to provide sufficient additional emission reductions to further reduce emissions to support the attainment test and a commitment that these measures would not involve additional limits on highway construction beyond those that could be imposed under the submitted motor vehicle emissions budget.
(3) Adopt and submit a rule(s) for the regional NO
(4) Adopt and submit an enforceable commitment, or a reaffirmation of existing enforceable commitment to do the following:
(a) Submit measures by October 31, 2001 for additional emission reductions as required in the attainment demonstration test, and for additional emission reduction measures developed through the regional process; submit an enforceable commitment for the additional measures and a backstop commitment to adopt and submit intrastate measures for the emission reductions in the event the regional process does not recommend measures that produce emission reductions.
(b) Submit a revised SIP and motor vehicle emissions budget by October 31, 2001 if additional measures affect the motor vehicle emissions inventory.
(c) Submit revised SIP and motor vehicle emissions budgets one year after MOBILE6 is issued.
(d) Perform a mid-course review by December 31, 2003.
The following is a summary of such submittals which includes the submittal dates of revisions, the content of these submissions and other pertinent facts regarding these submissions:
(1) On January 24, 2000, Delaware submitted an addendum to its attainment demonstration plan for the Philadelphia area. This submittal contains the revised motor vehicle emissions budgets that reflect the benefits from EPA's Tier 2/Low Sulfur rule, and enforceable commitments to:
(a) Adopt control measures consistent with the reductions assumed in the attainment plan, and assume reductions in transported NO
(b) Adopt additional measures that can be adopted regionally such as in the OTR, or locally;
(c) Submit a revised SIP and motor vehicle emissions budget by October 31, 2001, if the additional measures affect the motor vehicle emissions inventory; and
(d) Conduct a mid-course review by December 31, 2003.
(2) On December 20, 2000, Delaware submitted an amendment to the January 24, 2000 addendum to its attainment demonstration plan for the Philadelphia area. This submittal addresses two commitments that were not clearly listed in the January 24, 2000 addendum, namely:
(a) To revise SIP and motor vehicle emission budgets using MOBILE6 within one year after it is issued.
(b) To adopt and submit additional control measures for the additional emission reductions as required in the attainment demonstration test by October 31, 2001.
(3) On October 9, 2001, the State of Delaware formally submitted a supplement to its 2005 attainment demonstration SIP consisting of an analysis and determination of RACM.
(1) On July 28, 2000, EPA published a supplemental notice of proposed rulemaking (SNPR) on the attainment demonstration (65 FR 46383). In that supplemental notice, we clarified and expanded on two issues relating to the motor vehicle emissions budgets in this attainment demonstration SIP revision.
(a) First, we proposed a clarification of what occurs if we finalize conditional or full approval of this and certain other attainment demonstration SIP revisions based upon a state's commitment to revise the SIP's motor vehicle emissions budgets in the future. Under the proposal, the motor vehicle emissions budgets in the approved SIP will apply for transportation conformity purposes only until the budgets are revised consistent with the commitment, and we have found the new budgets adequate. Once we have found the newly revised budgets adequate, then they would apply instead of the previous conditionally or fully approved budgets. Normally, revisions to SIP-approved budgets cannot be used
(b) Second, we proposed that states may opt to commit to revise their emissions budgets one year after the release of the MOBILE6 model, as originally proposed on December 16, 1999. Or, states may commit to a new option,
(c) In addition, on July 28, 2000 (65 FR at 46383), we reopened the comment period to take comment on these two issues and to allow comment on any additional materials that were placed in the dockets for the proposed actions close to or after the initial comment period on the December 16, 1999 closed on February 14, 2000. For many of the areas, additional information had been placed in the docket close to the time or since the initial comment period concluded. In general, these materials were identified as consisting of motor vehicle emissions budgets, and revised or additional commitments or reaffirmations submitted by the states.
(2) On August 30, 2001 (66 FR 45800), EPA proposed approval of all of the Post-1996 ROP plans adopted by Delaware to demonstrate ROP from 1996 through the attainment year. In that same notice, EPA also proposed approval of Delaware's contingency measures for ROP. In that August 30, 2001 NPR, EPA also proposed approval of Delaware's revisions to its 2005 attainment SIP consisting of commitments to: (1) Submit by October 31, 2001, additional measures to achieve the additional reductions necessary for attainment, and (2) revise the SIP and the motor vehicle emissions budgets within a year of the release of MOBILE6. EPA received no comments on any of the actions it proposed to approve in the August 30, 2001 NPR.
(3) On September 7, 2001 (66 FR 46755), EPA published a SNPR on Delaware's 2005 attainment demonstration. In that supplemental notice, we proposed to approve Delaware's RACM analysis and determination for the Philadelphia area. We received no comments on the September 7, 2001 SNPR.
Delaware submitted a revision to the attainment plan SIP for the Philadelphia area on January 24, 2000. This submittal contains revised motor vehicle emissions budgets for the attainment year of 2005 that reflect the benefits of the Heavy Duty Diesel Engine (HDDE) rule, the National Low Emission Vehicle (NLEV) program and the Federal Tier 2/Low Sulfur rule.
We began our adequacy review process on the budgets in the January 24, 2000 submittal under our adequacy process by a posting on EPA's Web site (
On December 20, 2000, Delaware submitted, as a formal SIP revision, an acceptable commitment to revise the attainment year motor vehicle emissions budgets using the MOBILE6 model within one year after the release of the MOBILE6 model. As stated earlier in this document, on August 30, 2001 (66 FR 45800), EPA published a NPR proposing to approve Delaware's revised commitments to revise the SIP and the motor vehicle emissions budgets within a year of the release of MOBILE6. EPA received no comments on the August 30, 2001 NPR. In this final rulemaking action, we are approving Delaware's commitment.
In the December 16, 1999 NPR for Delaware's attainment demonstration SIP for the Philadelphia area, EPA noted in Table 4, the submission and approval status of many of the control measures or part D requirements of the Act for serious and severe areas. The following provides the current status of those SIP elements which are prerequisite for approval of the attainment demonstration but which were not fully approved as of December 16, 1999 (or which were not listed in Table 4 in the NPR as fully approved):
(1) On September 17, 1999, EPA approved Delaware's sanitary landfills SIP (64 FR 50453).
(2) On December 28, 1999, EPA approved Delaware's National Low Emission Vehicle (NLEV) SIP (64 FR 72564).
(3) On March 9, 2000, EPA approved Delaware's NO
(4) On February 7, 2001, EPA approved Delaware's New Source Review Rule (66 FR 9209).
(5) On May 17, 2001, EPA approved Delaware's NO
(6) On June 14, 2001, EPA approved Delaware's NO
EPA has determined that the budgets in the Post-1996 ROP plans and the attainment demonstration plan are adequate, and is approving these budgets in this final action. These Delaware plans establish separate VOC and NO
EPA has concluded that these SIP revisions meet the requirements of the Act applicable to the type of control strategy SIP, that is, demonstrates attainment or ROP with the applicable budgets and contains the measures necessary to support these budgets.
Our conformity rule establishes the frequency by which transportation plans and transportation improvement programs must be found to conform to the SIP and includes trigger events tied to both submittal and approval of a SIP [40 CFR 93.104(e)]. Both initial submission and initial approval trigger a redetermination of conformity. This final rule has the effect of approving motor vehicle emissions budgets contained in the attainment demonstration and the Post-1996 ROP plans. We are advising affected transportation planning agencies that this final approval of the budgets listed in Table 4 will require a redetermination that existing transportation plans and TIPs conform
All states whose attainment demonstration includes the effects of the Tier 2/Low Sulfur program have committed to revise and resubmit their motor vehicle emissions budgets after EPA releases the MOBILE6 model. On December 20, 2000, Delaware submitted a commitment to revise the 2005 motor vehicle budgets in the attainment demonstration within one year of EPA's release of the MOBILE6 model. In this final rulemaking action, EPA is approving, as a SIP revision, Delaware's commitment to revise the 2005 motor vehicle budgets in the attainment demonstration within one year of EPA's release of the MOBILE6 model. If Delaware fails to meet its commitment to submit revised budgets using the MOBILE6 model, EPA could make a finding of failure to implement the SIP, which would start a sanctions clock under section 179 of the Act.
As we proposed in our July 28, 2000 SNPR (65 FR 46383), today's final approval of the budgets contained in the 2005 attainment plan will be effective for conformity purposes only until such time as revised motor vehicle emissions budgets are submitted (pursuant to the commitment to submit revised budgets using the MOBILE6 model within one year of EPA's release of that model) and we have found those revised budgets adequate. We are only approving the attainment demonstration and its current budgets because Delaware has provided an enforceable commitment to revise the budgets using the MOBILE6 model within one year of EPA's release of that model. Therefore, we are limiting the duration of our approval of the current budgets only until such time as the revised budgets are found adequate. Those revised budgets will be more appropriate than the budgets we are approving for conformity purposes for the time being.
Similarly, EPA is only approving the 2005 attainment demonstration and its current budgets because Delaware has provided an enforceable commitment to submit new budgets as a revision to the attainment SIP consistent with any new measures submitted to fill any shortfall, if the additional control measures affect on-road motor vehicle emissions. Therefore, EPA is limiting the duration of our approval of the current budgets only until such time as any such revised budgets are found adequate. Those revised budgets will be more appropriate than the budgets we are approving for conformity purposes for the time being.
EPA received comments from the public on the Notice of Proposed Rulemaking (NPR) published on December 16, 1999 (64 FR 70444) for Delaware's ozone attainment demonstration for the Philadelphia area. Comments were received from Robert E. Yuhnke on behalf of Environmental Defense and Natural Resources Defense Council and from the Midwest Ozone Group.
EPA also received comments from the public on the supplemental notice of proposed rulemaking published on July 28, 2000 (65 FR 46383), in which EPA clarified and expanded on two issues relating to the motor vehicle emissions budgets in the attainment demonstration SIPs. Comments were received from Environmental Defense and from ELM Packaging Co.
As previously noted, EPA received no comments on either its August 30, 2001 (66 FR 45800) or September 7, 2001 (66 FR 46755) proposed actions as discussed in Section I.E. of this document.
The following discussion summarizes and responds to the comments received on EPA's December 16, 1999 (64 FR 70444) and July 28, 2000 (65 FR 46383) proposals to approve Delaware's 2005 attainment demonstration. These are the only proposed actions for which we received comments.
The flexibility granted to EPA under section 182(c)(2)(A) is reflected in the regulations EPA promulgated for modeled attainment demonstrations. These regulations provide, “The adequacy of a control strategy shall be demonstrated by means of applicable air quality models, data bases, and other requirements specified in [40 CFR part 51, Appendix W] (Guideline on Air Quality Models).”
The modeled attainment test compares model predicted one-hour daily maximum ozone concentrations in all grid cells for the attainment year to the level of the NAAQS. The results may be interpreted through either of two modeled attainment or exceedance tests: the deterministic test or the statistical test. Under the deterministic test, a predicted concentration above 0.124 parts per million (ppm) ozone indicates that the area is expected to exceed the standard in the attainment year and a prediction at or below 0.124 ppm indicates that the area is expected to not exceed the standard. Under the statistical test, attainment is demonstrated when all predicted (i.e., modeled) one-hour ozone concentrations inside the modeling domain are at, or below, an acceptable upper limit above the NAAQS permitted under certain conditions (depending on the severity of the episode modeled).
In 1996, EPA issued guidance
In 1999, EPA issued additional guidance
The method outlined in EPA's 1999 guidance uses the highest measured design value across all sites in the nonattainment area for each of three years. These three “design values” represent the air quality observed during the time period used to predict ozone for the base emissions. This is appropriate because the model is predicting the change in ozone from the base period to the future attainment date. The three yearly design values (highest across the area) are averaged to account for annual fluctuations in meteorology. The result is an estimate of an area's base year design value. The base year design value is multiplied by a ratio of the peak model predicted ozone concentrations in the attainment year (i.e., average of daily maximum concentrations from all days modeled) to the peak model predicted ozone concentrations in the base year (i.e., average of daily maximum concentrations from all days modeled). The result is an attainment year design value based on the relative change in peak model predicted ozone concentrations from the base year to the attainment year. Modeling results also show that emission control strategies designed to reduce areas of peak ozone concentrations generally result in similar ozone reductions in all core areas of the modeling domain, thereby providing some assurance of attainment at all monitors.
In the event that the attainment year design value is above the standard, the 1999 guidance provides a method for identifying additional emission reductions, not modeled, which at a minimum provide an estimated attainment year design value at the level of the standard. This step uses a locally derived factor which assumes a linear relationship between ozone and the precursors.
A commenter criticized the 1999 guidance as flawed on grounds that it allows the averaging of the three highest air quality sites across a region, whereas EPA's 1991 and 1996 modeling guidance requires that attainment be demonstrated at each site. This has the effect of allowing lower air quality concentrations to be averaged against higher concentrations thus reducing the total emission reduction needed to attain at the higher site. The commenter does not appear to have described the guidance accurately. The guidance does not recommend averaging across a region or spatial averaging of observed data. The guidance does recommend determination of the highest site in the region for each of the three-year periods, determined by the base year modeled. For example, if the base year is 1990, it is the amount of emissions in 1990 that must be adjusted or evaluated (by accounting for growth and controls) to determine whether attainment results. These 1990 emissions would contribute to three design value periods (1988–90, 1989–91 and 1990–92).
Under the approach of the guidance document, EPA determined the design value for each of those three-year periods, and then averaged those three design values, to determine the base design value. This approach is appropriate because, as just noted, the 1990 emissions contributed to each of those periods, and there is no reason to believe the 1990 (episodic) emissions resulted in the highest or lowest of the
A commenter criticized the component of this WOE factor that estimates ambient improvement because it does not incorporate complete modeling of the additional emissions reductions. However, the regulations do not mandate, nor does EPA guidance suggest, that states must model all control measures being implemented. Moreover, a component of this technique-the estimation of future design value—should be considered a model predicted estimate. Therefore, results from this technique are an extension of “photochemical grid” modeling and are consistent with section 182(c)(2)(A). Also, a commenter believes that EPA has not provided sufficient opportunity to evaluate the calculations used to estimate additional emission reductions. EPA provided a full 60-day period for comment on all aspects of the proposed rule. EPA has received several comments on the technical aspects of the approach and the results of its application, as discussed above and in the responses to the individual SIPs.
A commenter states that application of the method of attainment analysis used for the December 16, 1999 NPRs will yield a lower control estimate than if we relied entirely on reducing maximum predictions in every grid cell to less than or equal to 124 ppb on every modeled day. However, the commenter's approach may overestimate needed controls because the form of the standard allows up to 3 exceedances in 3 years in every grid cell. If the model over predicts observed concentrations, predicted controls may be further overestimated. EPA has considered other evidence, as described above through the weight of evidence determination.
When reviewing a SIP, EPA must make a determination that the control measures adopted are reasonably likely to lead to attainment. Reliance on the WOE factors allows EPA to make this determination based on a greater body of information presented by the states and available to EPA. This information includes model results for the majority of the control measures. Although not all measures were modeled, EPA reviewed the model's response to changes in emissions as well as observed air quality changes to evaluate the impact of a few additional measures, not modeled. EPA's decision was further strengthened by each state's commitment to check progress towards attainment in a mid-course review and to adopt additional measures, if the anticipated progress is not being made.
A commenter further criticized EPA's technique for estimating the ambient impact of additional emissions reductions not modeled on grounds that EPA employed a “rollback” modeling technique that, according to the commenter, is precluded under EPA regulations. The commenter explained that 40 CFR part 51, App. W section 6.2.1.e. provides, “Proportional (rollback/forward) modeling is not an acceptable procedure for evaluating ozone control strategies.” Section 14.0 of Appendix W defines “rollback” as “a simple model that assumes that if emissions from each source affecting a given receptor are decreased by the same percentage, ambient air quality concentrations decrease proportionately.” Under this approach if 20 percent improvement in ozone is needed for the area to reach attainment, it is assumed a 20 percent reduction in VOC would be required. There was no approach for identifying NO
The “proportional rollback” approach is based on a purely empirically/mathematically derived relationship. EPA did not rely on this approach in its evaluation of the attainment demonstrations. The prohibition in Appendix W applies to the use of a rollback method which is empirically/mathematically derived and independent of model estimates or observed air quality and emissions changes as the sole method for evaluating control strategies. For the demonstrations under proposal, EPA used a locally derived (as determined by the model and/or observed changes in air quality) ratio of change in emissions to change in ozone to estimate additional emission reductions to achieve an additional increment of ambient improvement in ozone.
For example, if monitoring or modeling results indicate that ozone was reduced by 25 ppb during a particular period, and that VOC and NO
The limited use of adjustment factors is acceptable for practical reasons: it obviates the need to expend more time and resources to perform additional modeling. In addition, the adjustment factor is a locally derived relationship between ozone and its precursors based on air quality observations and/or modeling which is more consistent with recommendations referenced by Appendix W, and does not assume a direct proportional relationship between ozone and its precursors. Lastly, the requirement that areas perform a mid-course review (a check of progress toward attainment), provides a margin of safety.
A commenter expressed concerns that EPA used a modeling technique (proportional rollback) that was expressly prohibited by 40 CFR part 51, Appendix W, without expressly proposing to do so in a notice of proposed rulemaking. However, the commenter is mistaken. As explained above, EPA did not use or rely upon a proportional rollback technique in this rulemaking, but used UAM to evaluate the core control strategies and then applied its WOE guidance. Therefore, because EPA did not use an “alternative model” to UAM, it did not trigger an obligation to modify Appendix W. Furthermore, EPA did propose to use the November 1999 guidance, “Guidance for Improving Weight of Evidence Through Identification of Additional Emission Reductions, Not Modeled,” in the December 16, 1999 NPR and has responded to all comments received on that guidance elsewhere in this document.
A commenter also expressed concern that EPA applied unacceptably broad discretion in fashioning and applying the WOE determinations. For all of the attainment submittals proposed for approval in December 1999 concerning serious and severe ozone nonattainment areas, EPA first reviewed the UAM results. In all cases, the UAM results did not pass the deterministic test. In two cases—Milwaukee and Chicago—the UAM results passed the statistical test; in the rest of the cases, the UAM results failed the statistical test. The UAM has inherent limitations that, in EPA's view, were manifest in all these cases. These limitations include: (1) only selected time periods were modeled, not the entire three-year period used as the definitive means for determining an area's attainment status; (2) there are inherent uncertainties in the model formulation and model inputs such as hourly emission estimates, emissions growth projections, biogenic emission estimates, and derived wind speeds and directions. As a result, for all areas, even Milwaukee and Chicago, EPA examined additional analyses to indicate whether additional SIP controls would yield meaningful reductions in ozone values. These analyses did not point to the need for additional emission reductions for Springfield, Greater Connecticut, Metropolitan Washington, DC, Chicago and Milwaukee, but did point to the need for additional reductions, in varying amounts, in the other areas. As a result, the other areas submitted control requirements to provide the indicated level of emissions reductions. EPA applied the same methodology in these areas, but because of differences in the application of the model to the circumstances of each individual area, the results differed on a case-by-case basis.
As another WOE factor, for areas within the NO
The commenter also complained that EPA has applied the WOE determinations to adjust modeling results only when those results indicate nonattainment, and not when they indicate attainment. First, we disagree with the premise of this comment: EPA does not apply the WOE factors to adjust model results. EPA applies the WOE factors as additional analysis to compensate for uncertainty in the air quality modeling. Second, EPA has applied WOE determinations to all of the attainment demonstrations proposed for approval in December 1999. Although for most of them, the air quality modeling results by themselves indicated nonattainment, for two metropolitan areas—Chicago and Milwaukee, including parts of the States of Illinois, Indiana, and Wisconsin, the air quality modeling did indicate attainment on the basis of the statistical test.
The commenter further criticized EPA's application of the WOE determination on grounds that EPA ignores evidence indicating that continued nonattainment is likely, such as, according to the commenter, monitoring data indicating that ozone levels in many cities during 1999 continue to exceed the NAAQS by margins as wide or wider than those predicted by the UAM. EPA has reviewed the evidence provided by the commenter. The 1999 monitor values do not constitute substantial evidence indicating that the SIPs will not provide for attainment. These values do not reflect either the local or regional control programs which are scheduled for implementation in the next several years. Once implemented, these controls are expected to lower emissions and thereby lower ozone values. Moreover, there is little evidence to support the statement that ozone levels in many cities during 1999 continue to exceed the NAAQS by margins as wide or wider than those predicted by the UAM. Since areas did not model 1999 ozone levels using 1999 meteorology and 1999 emissions which reflect reductions anticipated by control measures, that are or will be approved into the SIP, there is no way to determine how the UAM predictions for 1999 compare to the 1999 air quality. Therefore, we can not determine whether or not the monitor values exceed the NAAQS by a wider margin than the UAM predictions for 1999. In summary, there is little evidence to support the conclusion that high exceedances in 1999 will continue to occur after adopted control measures are implemented.
In addition, the commenter argued that in applying the WOE determinations, EPA ignored factors showing that the SIPs under-predict future emissions, and the commenter included as examples certain mobile source emissions sub-inventories. EPA did not ignore possible under-prediction in mobile emissions. EPA is presently evaluating mobile source emissions data as part of an effort to update the computer model for estimating mobile source emissions. EPA is considering various changes to the model, and is not prepared to conclude at this time that the net effect of all these various changes would be to increase or decrease emissions estimates. For attainment demonstration SIPs that rely on the Tier 2/Low Sulfur program for attainment or otherwise (i.e., reflect these programs in their motor vehicle emissions budgets), states have committed to revise their motor vehicle emissions budgets after the MOBILE6 model is released. EPA will work with states on a case-by-case basis if the new emission estimates raise issues about the sufficiency of the attainment demonstration. If analysis indicates additional measures are needed, EPA will take the appropriate action.
The remanded issues do affect the ability of EPA and the states to achieve the full level of the SIP Call reductions by May 2003. First, the court vacated the rule as it applied to two states—Missouri and Georgia—and also remanded the definition of a co-generator and the assumed emission limit for internal combustion engines. EPA has informed the states that until EPA addresses the remanded issues, EPA will accept SIPs that do not include those small portions of the emission budget. However, EPA is planning to propose a rule shortly to address the remanded issues and ensure that emission reductions from these states and the emission reductions represented by the two source categories are addressed in time to benefit the severe nonattainment areas. Also, although the court in the
Finally, contrary to the commenter's conclusions, EPA's modeling to determine the region-wide impacts of the NO
As an initial matter, EPA believes that present circumstances for the New York City, Philadelphia, Baltimore and Houston nonattainment areas warrant the consideration of enforceable commitments. The Northeast states that make up the New York, Baltimore, and Philadelphia nonattainment areas submitted SIPs that they reasonably believed demonstrated attainment with fully adopted measures. After EPA's initial review of the plans, EPA recommended to these areas that additional controls would be necessary to ensure attainment. Because these areas had already submitted plans with many fully adopted rules and the adoption of additional rules would take some time, EPA believed it was appropriate to allow these areas to supplement their plans with enforceable commitments to adopt and submit control measures to achieve the additional necessary reductions. For Delaware's attainment demonstration for the Philadelphia area, EPA has determined that the submission of enforceable commitments in place of adopted control measures for these limited sets of reductions will not interfere with each area's ability to meet its 2005 attainment obligations.
EPA's approach here of considering enforceable commitments that are limited in scope is not new. EPA has historically recognized that under certain circumstances, issuing full approval may be appropriate for a submission that consists, in part, of an enforceable commitment.
As provided above, after concluding that the circumstances warrant consideration of an enforceable commitment—as they do for the Philadelphia area—EPA would consider three factors in determining whether to approve the submitted commitments. First, EPA believes that the commitments must be limited in scope. In 1994, in considering EPA's authority under section 110(k)(4) to conditionally approve unenforceable commitments, the Court of Appeals for the District of Columbia Circuit struck down an EPA policy that would allow states to submit (under limited circumstances) commitments for entire programs.
In the present circumstances, the commitments address only a small portion of the 2005 attainment plan. For the Philadelphia area, the commitment addresses only 10.6 percent of the VOC and 0.7 percent of the NO
As to the second factor, whether the state is capable of fulfilling the commitment, EPA considered the current or potential availability of measures capable of achieving the additional level of reductions represented by the commitment. For the New York, Philadelphia and Baltimore nonattainment areas, EPA believes that there are sufficient untapped sources of emission reductions that could achieve the minimal levels of additional reductions that the areas need. This is supported by the recent recommendation of the OTC regarding specific controls that could be adopted to achieve the level of reductions needed for each of these three nonattainment areas. Thus, EPA believes that the states will be able to find sources of reductions to meet the shortfall. The states that comprise the New York, Philadelphia and Baltimore nonattainment areas are making significant progress toward adopting the measures to fill the shortfall. The OTC has met and on March 29, 2001, recommended a set of control measures. Currently, Delaware has proposed the regulations for all OTC recommended control measures and has gone to public hearings on those control measures. Delaware has indicated that it would submit the measures no later than October 31, 2001. This time period is fully consistent with the Philadelphia area attaining the standard by its approved attainment date.
The third factor EPA has considered in determining to approve limited commitments for the Philadelphia area attainment demonstration is whether the commitment is for a reasonable and appropriate period. EPA recognizes that both the Act and EPA have historically emphasized the need for submission of adopted control measures in order to ensure expeditious implementation and achievement of required emissions reductions. Thus, to the extent that other factors—such as the need to consider innovative control strategies—support the consideration of an enforceable commitment in place of adopted control measures, the commitment should provide for the adoption of the necessary control measures on an expeditious, yet practicable, schedule.
As previously provided, for New York, Baltimore and Philadelphia, EPA proposed that these areas have time to work within the framework of the OTC to develop, if appropriate, a regional control strategy to achieve the necessary reductions and then to adopt the controls on a state-by-state basis. In the proposed approval of the attainment demonstrations, EPA proposed that these areas would have approximately 22 months to complete the OTC and state-adoption processes—a fairly ambitious schedule—i.e., until October 31, 2001. As a starting point in suggesting this time frame for submission of the adopted controls, EPA first considered the CAA “SIP Call” provision of the Act—section 110(k)(5)—which provides states with up to 18 months to submit a SIP after EPA requests a SIP revision. While EPA may have ended its inquiry there, and provided for the states to submit the measures within 18 months of its proposed approval of the attainment demonstrations, EPA further considered that these areas were all located with the Northeast Ozone Transport Region (OTR) and determined that it was appropriate to provide these areas with additional time to work through the OTC process to determine if regional controls would be appropriate for addressing the shortfall. EPA believed that allowing these states until 2001 to adopt these additional measures would not undercut their attainment dates of November 2005 or 2007. EPA still believes that this is a reasonable schedule for the states to submit adopted control measures that will achieve the additional necessary reductions.
The enforceable commitments submitted by Delaware for the Philadelphia nonattainment area, in conjunction with its other SIP measures and other sources of emissions reductions, constitute the required demonstration of attainment. EPA believes that the delay in submittal of the final rules is permissible under section 110(k)(3) because the State has obligated itself to submit the rules by specified short-term dates, and that obligation is enforceable by EPA and the public. Moreover, as discussed in the December 16, 1999 proposal, its Technical Support Document (TSD), and Sections I.G. and I.H. of this document, the SIP submittal approved today contains major substantive components submitted as adopted regulations and enforceable orders.
The comment is not germane to Delaware's Post 1996 ROP plans. The State of Delaware is relying only on NO
On August 3, 2001, Delaware submitted its proposed analysis and determination that there are no additional reasonably available control measures (RACM) as a supplement to its 2005 attainment demonstration for the Philadelphia area and requested that EPA approve it as a SIP revision using a form of Federal rulemaking known as parallel-processing. On September 7, 2001, EPA published a SNPR on the attainment demonstration (66 FR 46755). In that supplemental notice, we proposed approval of Delaware's RACM analysis and determination. See Section I.E. of this document. We received no comments on that SNPR.
That proposed approval was done under a procedure called parallel processing, whereby EPA proposes rulemaking action concurrently with the state's procedures for amending its SIP. If the final, adopted revision is substantially changed from the version EPA proposed to approve, and which was available for public review during EPA's comment period, EPA will evaluate those changes and may publish another supplemental notice of proposed rulemaking. If no substantial changes are made, EPA will publish a final rulemaking notice on the revision. The final rulemaking action by EPA will occur only after the SIP revision has been adopted by the state and submitted formally to EPA for incorporation into the SIP.
On October 9, 2001, the State of Delaware supplemented its original attainment demonstration SIP with a formal submittal of an analysis of RACM. EPA has determined that there are no changes between Delaware's formally submitted RACM analysis and the proposed version for which we proposed approval on September 7, 2001. We received no comments on the September 7, 2001 SNPR. EPA concluded that Delaware's 2005 attainment demonstration SIP for the Philadelphia area, as formally supplemented on October 9, 2001, meets the requirement for RACM.
Section 172(c)(1) of the Act requires SIPs to contain RACM and provides for areas to attain as expeditiously as practicable. EPA has previously provided guidance interpreting the requirements of 172(c)(1). See 57 FR 13498, 13560. In that guidance, EPA indicated its interpretation that potentially available measures that would not advance the attainment date for an area would not be considered RACM. EPA also indicated in that guidance, that states should consider all potentially available measures to determine whether they were reasonably available for implementation in the area, and whether they would advance the attainment date. Further, states should indicate in their SIP submittals whether measures considered were reasonably available or not, and if measures are reasonably available they must be adopted as RACM. Finally, EPA indicated that states could reject measures as not being RACM because they would not advance the attainment date, would cause substantial widespread and long-term adverse impacts, would be economically or technologically infeasible, or would be unavailable based on local considerations, including costs. EPA also issued a recent memorandum re-confirming the principles in the earlier guidance, entitled, “Guidance on the Reasonably Available Control Measures (RACM) Requirement and Attainment Demonstration Submissions for Ozone Nonattainment Areas.” John S. Seitz, Director, Office of Air Quality Planning and Standards. November 30, 1999. Web site:
The analysis submitted by the Delaware on October 9, 2001, as a supplement to its attainment demonstration SIP for the Philadelphia area, addresses the RACM requirement. Delaware has examined a wide variety of potential stationary source and mobile source controls. The stationary and area source controls that were considered were limits on area source categories not covered by a control technique guideline (CTG), e.g., motor vehicle refinishing, and surface/cleaning degreasing; rule effectiveness improvements; expanding the applicability of VOC RACT limits to sources smaller than those mandated under the CTG; “beyond RACT” controls on major stationary sources of nitrogen oxides ( NO
(1) Delaware has adopted, and EPA has SIP-approved, a rule for vehicle refinishing. The rule includes VOC content limits for motor vehicle refinishing coatings at least equivalent to the Federal requirements and required compliance with this rule in 1996 versus in 1998 as required under the Federal rule.
(2) Delaware has adopted, and EPA has SIP approved, a rule for control of VOC emissions from offset lithographic printing operations.
(3) Delaware has adopted, and EPA has SIP approved, a rule for control of VOC emissions from aerospace coating operations with an applicability threshold well below that required by the applicable CTG.
(4) Delaware has adopted, and EPA has SIP approved, a rule for control of VOC emissions from graphic arts operations (packaging rotogravure, publication rotogravure, or flexographic printing press) with an applicability threshold well below that required by the applicable CTG.
(5) Delaware has adopted, and EPA has SIP approved, a rule for control of VOC emissions from use of organic cleaning solvents that includes additional requirements beyond those of applicable CTG for surface cleaning and degreasing.
(6) Delaware has adopted, and EPA has SIP approved, a rule requiring the sale of vehicles under the national low-emission vehicle program (NLEV).
(7) Delaware has adopted, and EPA has SIP approved, a rule to implement Phase II NO
(8) Delaware has adopted, and EPA has SIP approved, a rule to implement the NO
Other potential measures are not considered to be cost effective or are considered to have implementation difficulties due to the intensive and costly effort that would be involved in regulating numerous, small area source categories. These explanations are provided in further detail in the docket for this rulemaking. Delaware concluded that a number of potential transportation control measures were considered feasible, but would not, in aggregate, advance the attainment date.
Although EPA does not believe that section 172(c)(1) requires implementation of additional measures for the Philadelphia area, this conclusion is not necessarily valid for other areas. Thus, a determination of RACM is necessary on a case-by-case basis and will depend on the circumstances for the individual area. In addition, if in the future EPA moves forward to implement another ozone standard, this RACM analysis would not control what is RACM for these or any other areas for that other ozone standard.
Also, EPA has long advocated that states consider the kinds of control measures that the commenters have suggested, and EPA has indeed provided guidance on those measures. See,
Because EPA is finding that the SIP meets the Act's requirement for RACM and that there are no additional reasonably available control measures that can advance the attainment date. EPA concludes that the attainment date being approved is as expeditiously as practicable.
EPA previously responded to comments concerning the adequacy of MVEBs when EPA took final action determining the budgets adequate and does not address those issues again here. The responses are found at
In accordance with EPA's final regulation, states have assumed a 20 percent reduction from AIM coatings source categories in their attainment and ROP plans. AIM coatings manufacturers were required to be in compliance with the final regulation within one year of promulgation, except for certain pesticide formulations which were given an additional year to comply. Thus all manufacturers were required to comply, at the latest, by September 2000. Industry confirmed in comments on the proposed AIM rule that 12 months between the issuance of the final rule and the compliance deadline would be sufficient to “use up existing label stock” and “adjust inventories” to conform to the rule. 63 FR 48848 (September 11, 1998). In addition, EPA determined that, after the compliance date, the volume of nonconforming products would be very low (less than one percent) and would be withdrawn from retail shelves anyway. Therefore, EPA believes that compliant coatings were in use by the fall of 1999 with full reductions to be achieved by September 2000 and that it was appropriate for the states to take credit for a 20 percent emission reduction in their SIPs.
Finally, EPA notes that although the eighthour ozone standard has been adopted by the EPA, implementation of this standard has been delayed while certain aspects of the standard remain before the United States Circuit Court of Appeals. The states and the EPA have yet to define the eighthour ozone nonattainment areas and the EPA has yet to issue guidance and requirements for the implementation of the eighthour ozone standard.
EPA is fully approving as meeting sections 182(c)(2) and (d) of the Act, the attainment demonstration for the Philadelphia-Wilmington-Trenton area as submitted by the State of Delaware on May 22, 1998, and amended October 8, 1998, January 24, 2000, December 20, 2000, and October 9, 2001, including its RACM analysis and determination.
EPA is approving the enforceable commitments made to the attainment plan for the Philadelphia-Wilmington-Trenton severe ozone nonattainment area submitted on January 24, 2000 and revised on December 20, 2000. The enforceable commitments are to:
(1) Submit measures by October 31, 2001 for additional emission reductions as required in the attainment demonstration test, and to revise the SIP and motor vehicle emissions budgets by October 31, 2001 if the additional measures affect the motor vehicle emissions inventory,
(2) Revise the SIP and motor vehicle emission budgets using MOBILE6 within one year after it is issued, and
(3) Perform a mid-course review by December 31, 2003.
(1) EPA is approving the Post-1996 ROP plans for milestone years 1999, 2002, and 2005 for the Delaware portion of the Philadelphia-Wilmington-Trenton severe ozone nonattainment area, namely Kent and New Castle Counties, which were submitted on December 29, 1997, June 17, 1999, February 3, 2000, and December 20, 2000.
(2) EPA is also approving Delaware's contingency plans for failure to meet ROP in the Delaware portion of the Philadelphia-Wilmington-Trenton severe ozone nonattainment area, namely Kent and New Castle Counties which were submitted on December 29, 1997, June 17, 1999, February 3, 2000, and December 20, 2000.
EPA is approving the following mobile budgets, explicitly quantified as sub-budgets for each of Kent and New Castle Counties, of the Post-96 ROP plans and the Attainment Plan:
Please note that EPA is only approving the 2005 attainment demonstration and its current budgets because Delaware has provided an enforceable commitment to revise the budgets using the MOBILE6 model within one year of EPA's release of that model. Therefore, we are limiting the duration of our approval of the current budgets only until such time as the revised budgets are found adequate. Those revised budgets will be more appropriate than the budgets we are approving for conformity purposes for the time being.
Similarly, EPA is only approving the 2005 attainment demonstration and its current budgets because Delaware provided enforceable commitments to adopt additional measures to strengthen the attainment demonstration by October 31, 2001 and to submit revised budgets by October 31, 2001 if the additional measures affect the motor vehicle emissions inventory. Therefore, we are limiting the duration of our approval of the current budgets only until such time as any such revised budgets are found adequate. Those revised budgets will be more appropriate than the budgets we are approving for conformity purposes for the time being.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 28, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action to approve the Post-1996 ROP plans and the one-hour ozone attainment demonstration SIP for the Philadelphia-Wilmington-Trenton area submitted by the State of Delaware may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(b)(1) EPA approves revisions to the Delaware State Implementation Plan consisting of the Post 1996 ROP plans for milestone years 1999, 2002, and 2005 for the Delaware portion of the Philadelphia-Wilmington-Trenton severe ozone nonattainment area, namely Kent and New Castle Counties. These revisions were submitted by the Secretary of Delaware Department of Natural Resources and Environmental Control on December 29, 1997, and revised on June 17, 1999, February 3, 2000, and December 20, 2000.
(2) EPA approves Delaware's contingency plans for failure to meet ROP in the Delaware portion of the Philadelphia-Wilmington-Trenton severe ozone nonattainment area, namely Kent and New Castle Counties, for milestone years 1999, 2002 and 2005. These revisions were submitted by the Secretary of Delaware Department of Natural Resources and Environmental Control on December 29, 1997, June 17, 1999, February 3, 2000, and December 20, 2000.
(c) EPA approves the attainment demonstration SIP for the Philadelphia-Wilmington-Trenton area submitted by the Secretary of the Delaware Department of Natural Resources and Environmental Control on May 22, 1998, and amended October 8, 1998, January 24, 2000, December 20, 2000, and October 9, 2001 including its RACM analysis and determination. EPA is approving the enforceable commitments made to the attainment plan for the Philadelphia-Wilmington-Trenton severe ozone nonattainment area submitted by the Secretary of Delaware Department of Natural Resources and Environmental Control on January 24, 2000 and December 20, 2000. The enforceable commitments are to:
(1) Submit measures by October 31, 2001 for additional emission reductions as required in the attainment demonstration test, and to revise the SIP and motor vehicle emissions budgets by October 31, 2001 if the additional measures affect the motor vehicle emissions inventory,
(2) Revise the SIP and motor vehicle emission budgets using MOBILE6 within one year after it is issued, and
(3) Perform a mid-course review by December 31, 2003.
(d) EPA is approving the following mobile budgets, explicitly quantified as sub-budgets for each of Kent and New Castle Counties, of the Post-96 ROP plans and the Attainment Plan:
(1) EPA is only approving the 2005 attainment demonstration and its current budgets because Delaware has provided an enforceable commitment to revise the budgets using the MOBILE6 model within one year of EPA's release of that model. Therefore, EPA is limiting the duration of its approval of the current budgets only until such time as the revised budgets are found adequate. Those revised budgets will be more appropriate than the budgets EPA is approving for conformity purposes for the time being.
(2) Similarly, EPA is only approving the attainment demonstration and its current budgets because Delaware has provided enforceable commitments to adopt additional measures to strengthen the attainment demonstration by October 31, 2001 and to submit revised budgets by October 31, 2001 if the additional measures affect the motor vehicle emissions inventory. Therefore, EPA is limiting the duration of its approval of the current budgets only until such time as any such revised budgets are found adequate. Those revised budgets will be more appropriate than the budgets EPA is approving for conformity purposes for the time being.