Approval and Promulgation of Air Quality Implementation Plans; Delaware; Attainment Demonstration for the Philadelphia-Wilmington-Atlantic City Moderate 8-Hour Ozone Nonattainment Area, 21599-21604 [E9-10680]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 74, Number 88 (Friday, May 8, 2009)]
[Proposed Rules]
[Pages 21599-21604]
From the Federal Register Online via the Government Printing 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: fernandez.cristina@epa.gov.
    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 quinto.rose@epa.gov.

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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