	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

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

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.

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 [insert date 30
days from date of publication].

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:    HYPERLINK "mailto:fernandez.cristina@epa.gov" 
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 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 website 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   HYPERLINK "mailto:quinto.rose@epa.gov"  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  
HYPERLINK "www.regulations.gov"  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”).  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.

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).

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 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.  W 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 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 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.

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) 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 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 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 disapproves
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, Reporting and recordkeeping requirements,
Volatile organic compounds. 



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

____January 9, 2009____________        __/S/__________________________

Dated:                                                      Donald S.
Welsh,

                                                                
Regional Administrator,

                                                                 Region
III.

 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.

 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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