2452 Federal Register / Vol. 75, No. 10 / Friday, January 15, 2010 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2009–0712; FRL–9103–9] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Delaware; Reasonable Further 

Progress Plan, 2002 Base Year 

Inventory, Reasonably Available 

Control Measures, Contingency 

Measures, and Transportation 

Conformity Budgets for the Delaware 

Portion of the Philadelphia 1997 8-Hour 

Ozone Moderate Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

a revision to the Delaware State 

Implementation Plan (SIP) to meet the 

reasonable further progress (RFP) 

requirements of the Clean Air Act (CAA) 

for the Delaware portion of the 

Philadelphia 1997 8-hour ozone 

moderate nonattainment area. EPA is 

also proposing to approve the RFP 

motor vehicle emissions budgets 

(MVEBs), the 2002 base year emissions 

inventory, contingency measures, and 

the reasonably available control 

measure (RACM) analysis associated 

with this revision. EPA is proposing to 

approve the SIP revision because it 

satisfies RFP, emissions inventory, 

contingency measures, RFP 

transportation conformity, and RACM 

requirements for the 1997 8-hour ozone 

national ambient air quality standard 

(NAAQS) nonattainment areas classified 

as moderate and demonstrates further 

progress in reducing ozone precursors. 

EPA is proposing to approve the SIP 

revision pursuant to section 110 and 

part D of the CAA and EPA’s 

regulations. 

DATES: Written comments must be 

received on or before February 16, 2010. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2009–0712 by one of the 

following methods: 

A. http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

B. E-mail: 

fernandez.cristina@epa.gov. 

C. Mail: EPA–R03–OAR–2009–0712, 

Cristina Fernandez, Associate Director, 

Office of Air Program Planning, 

Mailcode 3AP30, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. 

D. Hand Delivery: At the previouslylisted 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–2009– 

0712. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at http:// 

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 http:// 

www.regulations.gov or e-mail. The 

http://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 http:// 

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 http:// 

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 http:// 

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 19901. 

FOR FURTHER INFORMATION CONTACT: Rose 

Quinto, (215) 814–2182, or by e-mail at 

quinto.rose@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

The following is provided to aid in 

locating information in this document. 

I. What Action Is EPA Taking? 

II. What Is the Background of This Action? 

III. What Is EPA’s Evaluation of the Revision? 

IV. What Are EPA’s Conclusions? 

V. What Are Statutory and Executive Order 

Reviews? 

I. What Action Is EPA Taking? 

EPA is proposing to approve a 

revision to the Delaware SIP submitted 

by the Delaware Department of Natural 

Resources and Environmental Control 

(DNREC) on June 13, 2007, to meet the 

emissions inventory and RFP 

requirements of the CAA for the 

Delaware portion of the Philadelphia 

1997 8-hour ozone moderate 

nonattainment area. EPA is proposing to 

approve the 2002 base year emissions 

inventory, the 15 percent RFP plan, the 

RFP 2008 MVEBs, contingency 

measures, and RACM analysis. The RFP 

plan demonstrates that emissions will 

be reduced 15 percent for the period of 

2002 through 2008. The volatile organic 

compound (VOC) MVEBs is 21.84 tons 

per day (tpd) and the nitrogen oxides 

(NOx) MVEBs is 43.89 tpd. EPA is 

proposing to approve the SIP revision 

pursuant to section 110 and part D of 

the CAA and EPA regulations. 

II. What Is the Background for This 

Action? 

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. 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 preexisting 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. Among those 

nonattainment areas is the PhiladelphiaWilmington-Atlantic City (PA–NJ–MD– 

DE) moderate nonattainment area 


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(NAA). This NAA includes the three 

counties in Delaware, five counties in 

eastern Pennsylvania, one county in 

Maryland and eight counties in 

southern New Jersey. 

These designations triggered the 

CAA’s section 110(a)(1) requirement 

that States must submit attainment 

demonstrations for their nonattainment 

areas to EPA by no later than three years 

after the promulgation of a NAAQS. 

Accordingly, EPA’s Phase 1 8-hour 

ozone implementation rule (Phase 1 

rule), published on April 30, 2004 (69 

FR 23951) specifies that States must 

submit attainment demonstrations for 

their nonattainment areas to EPA by no 

later than three years from the effective 

date of designation, that is, by June 15, 

2007. 

Pursuant to the Phase 1 rule, an area 

was classified under subpart 2 of the 

CAA based on its 8-hour design value if 

that area had a 1-hour design value at 

or above 0.121 ppm (the lowest 1-hour 

design value in Table 1 of subpart 2). 

Based on this criterion, Delaware, as 

part of the Philadelphia nonattainment 

area was classified under subpart 2 as a 

moderate nonattainment area. On 

November 29, 2005 (70 FR 71612), as 

revised on June 7, 2007 (72 FR 31727), 

EPA published the Phase 2 final rule for 

implementation of the 8-hour standard 

(Phase 2 rule) that addressed the RFP 

control and planning obligations as they 

apply to areas designated nonattainment 

for the 1997 8-hour ozone NAAQS. The 

Phase 1 and 2 rules outline the SIP 

requirements and deadlines for various 

requirements in areas designated as 

moderate nonattainment. For such 

areas, reasonably available control 

technology (RACT) plans were due by 

September 2006 (40 CFR 51.912(a)(2)). 

The rules further require that modeling 

and attainment demonstrations, RFP 

plans, RACM, projection year emission 

inventories, motor vehicle emissions 

budgets, and contingency measures 

were all due by June 15, 2007 (40 CFR 

51.908(a), (c)). 

Section 182(b)(1) of the CAA and 

EPA’s 1997 8-hour ozone 

implementation rule (40 CFR 51.910) 

require each 8-hour ozone 

nonattainment area designated moderate 

and above to submit an emissions 

inventory and RFP Plan, for review and 

approval into its SIP, that describes how 

the area will achieve actual emissions 

reductions of VOC and NOx from a 

baseline emissions inventory. 

III. What Is EPA’s Evaluation of the 

Revision? 

EPA’s analysis and findings are 

discussed in this proposed rulemaking 

and a more detailed discussion is 

contained in the Technical Support 

Document for this Proposal which is 

available on line at http:// 

www.regulations.gov, Docket number 

EPA–R03–OAR–2009–0712. 

After completing the appropriate 

public notice and comment procedures, 

Delaware made several submittals in 

order to address the CAA’s 8-hour ozone 

attainment requirements. On October 2, 

2006, Delaware submitted a RACT SIP 

revision which certifies that all relevant 

RACT controls have been implemented 

in Delaware for attaining the 8-hour 

ozone standard. EPA approved 

Delaware’s 8-hour RACT SIP revision on 

July 23, 2008 (73 FR 42681). On May 2, 

2007, Delaware submitted a new VOC 

control from crude oil lightering 

operations. EPA approved this rule on 

September 13, 2007 (72 FR 52285). On 

June 13, 2007, Delaware submitted a 

comprehensive 8-hour ozone SIP. The 

SIP submittal included an attainment 

demonstration plan, RFP plans for 2008 

and 2009, RACM 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 and the State 

addressed the comments received on the 

proposed SIPs. All sections of this SIP 

submittal with the exception of the 

attainment demonstration plan will be 

discussed in this rulemaking. The 

attainment demonstration plan sections 

of this SIP submittal will be discussed 

in a separate rulemaking. 

A. Base Year Emissions Inventory 

An emissions inventory is a 

comprehensive, accurate, current 

inventory of actual emissions from all 

sources and is required by section 

172(c)(3) of the CAA. For ozone 

nonattainment areas, the emissions 

inventory needs to contain VOC and 

NOX emissions because these pollutants 

are precursors to ozone formation. EPA 

recommended 2002 as the base year 

emissions inventory, and is therefore 

the starting point for calculating RFP. 

Delaware submitted its 2002 base year 

emissions inventory on June 13, 2007. A 

summary of the 2002 base year VOC and 

NOX emissions inventory, in tons per 

day (tpd), are included in Tables 1 and 

2 of this document. 

TABLE 1—DELAWARE 2002 BASE YEAR VOC EMISSIONS

Source sector Kent New Castle Sussex State total 

Point ................................................................................................................. 0.49 9.42 13.35 23.26 

Stationary Area ................................................................................................ 5.75 20.02 7.31 33.08 

Non-Road Mobile ............................................................................................. 5.17 12.24 9.36 26.77 

On-Road Mobile ............................................................................................... 5.45 16.98 9.95 32.38 

Total Emissions ........................................................................................ 16.86 58.66 39.97 115.49

TABLE 2—DELAWARE 2002 BASE YEAR NOX EMISSIONS

Source sector Kent New Castle Sussex State total 

Point ................................................................................................................. 5.06 44.09 24.95 74.10 

Stationary Area ................................................................................................ 0.45 1.95 0.77 3.17 

Non-Road Mobile ............................................................................................. 15.02 24.62 13.15 52.79 

On-Road Mobile ............................................................................................... 13.97 36.56 18.50 69.03 

Total Emissions ........................................................................................ 34.50 107.22 57.37 199.09 


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B. Adjusted Base Year Inventory and 

2008 RFP Target Levels 

The process for determining the 

emissions baseline from which the RFP 

reductions are calculated, is described 

in section 182(b)(1) of the CAA and 40 

CFR 51.910. This baseline value has 

been determined to be the 2002 adjusted 

base year inventory. Sections 

182(b)(1)(B) and (D) require the 

exclusion from the base year inventory 

of emissions benefits resulting from the 

Federal Motor Vehicle Control Program 

(FMVCP) regulations promulgated by 

January 1, 1990, and the Reid Vapor 

Pressure (RVP) regulations promulgated 

June 11, 1990 (55 FR 23666). The 

FMVCP and RVP emissions reductions 

are determined by the State using EPA’s 

on-road mobile source emissions 

modeling software, MOBILE6. The 

FMVCP and RVP emission reductions 

are then removed from the base year 

inventory by the State, resulting in an 

adjusted base year inventory. The 

emission reductions needed to satisfy 

the RFP requirement are then calculated 

from the adjusted base year inventory. 

These reductions are then subtracted 

from the adjusted base year inventory to 

establish the emissions target for the 

RFP milestone year (2008). 

For moderate areas like the 

Philadelphia nonattainment area, the 

CAA specifies a 15 percent reduction in 

ozone precursor emissions over an 

initial six year period. In the Phase 2 

rule, EPA interpreted this requirement 

for areas that were also designated 

nonattainment and classified as 

moderate or higher for the 1-hour ozone 

standard. Also in the Phase 2 rule, EPA 

provided that an area classified as 

moderate or higher that has the same 

boundaries as an area, or is entirely 

composed of several areas or portions of 

areas, for which EPA fully approved a 

15 percent plan for the 1-hour NAAQS, 

is considered to have met the 

requirements of section 182(b)(1) of the 

CAA for the 8-hour NAAQS. In this 

situation, a moderate nonattainment 

area is subject to RFP under section 

172(c)(2) of the CAA and shall submit, 

no later than 3 years after designation 

for the 8-hour NAAQS, a SIP revision 

that meets the requirements of 40 CFR 

51.910(b)(2). The RFP SIP revision must 

provide for a 15 percent emission 

reduction (either NOX and/or VOC) 

accounting for any growth that occurs 

during the six year period following the 

baseline emissions inventory year, that 

is, 2002–2008. The sections 182 and 172 

requirements differ in that section 

182(b)(1) specifies that it must be a 15 

percent VOC reduction, where section 

172(c)(2) provides that the 15 percent 

reduction can be either a VOC and/or 

NOX reduction. 

According to EPA’s Phase 2 rule, 

Delaware must achieve 15 percent VOC 

emission reduction in Sussex County 

from its 2002 baseline level, and 15 

percent VOC and/or NOX emission 

reduction in Kent and New Castle 

Counties from their combined 2002 

baseline level before the end of 2008. 

According to section 182(b)(1)(D) of 

the CAA, emission reductions that 

resulted from the FMVCP and RVP rules 

promulgated prior to 1990 are not 

creditable for achieving RFP emission 

reductions. Therefore, the 2002 base 

year inventory is adjusted by subtracting 

the VOC and NOX emission reductions 

that are expected to occur between 2002 

and the future milestone years due to 

the FMVCP and RVP rules. The FMVCP/ 

RVP VOC and NOX emission reductions 

that are expected to occur between 2002 

and 2008 were determined using EPA’s 

MOBILE6.2 model. The input and 

output files for MOBILE6.2 runs for the 

adjustments, the emission factors 

generated, and the calculations for 

emission projections are found in 

Appendix 4–1 of the Delaware SIP 

submittal. The adjustments, in tpd, are 

presented in Table 3 for Sussex County 

and Table 4 for Kent and New Castle 

Counties. 

TABLE 3—MOBILE SOURCE FMVCP/RVP ADJUSTMENTS FOR SUSSEX COUNTY

VOC NOX Note 

Adjusted On-Road Mobile Source Emissions: 

Adjusted for 2002 .......................................................................................................... 16.66 20.24 A 

Adjusted for 2008 .......................................................................................................... 15.51 18.81 B2008

Mobile Source Adjustments for 2002 Baseline: 

2002–2008 .................................................................................................................... 1.15 1.42 C2008 = A¥B2008

TABLE 4—MOBILE SOURCE FMVCP/RVP ADJUSTMENTS FOR KENT AND NEW CASTLE COUNTIES

VOC NOX Note 

Adjusted On-Road Mobile Source Emissions: 

Adjusted for 2002 .......................................................................................................... 42.16 56.02 a 

Adjusted for 2008 .......................................................................................................... 39.18 51.64 b2008

Mobile Source Adjustments for 2002 Baseline: 

2002–2008 .................................................................................................................... 2.98 4.38 c2008 = a¥b2008

The mobile source adjustments in 

Tables 3 and 4 are the non-creditable 

emission reductions due to the pre-1990 

FMVCP and RVP rules. Subtracting 

these adjustments from the 2002 base 

year emissions inventory (i.e., the State 

total emissions in Tables 1 and 2) will 

give the 2002 adjusted base year 

emissions inventory relative to the 

subject milestone year, as presented in 

Table 5 for Sussex County and Table 6 

for Kent and New Castle Counties. 

TABLE 5—THE 2002 ADJUSTED BASE YEAR EMISSIONS INVENTORY FOR SUSSEX COUNTY

VOC NOX Note 

2002 Base Year Emissions Inventory .................................................................................. 39.97 57.37 E 

Mobile Source Adjustments for 2002–2008 ......................................................................... 1.15 1.42 C2008

2002 Adjusted Baseline Relative to 2008 ............................................................................ 38.82 55.95 F2008 = E¥C2008


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TABLE 6—THE 2002 ADJUSTED BASE YEAR EMISSIONS INVENTORY FOR KENT AND NEW CASTLE COUNTIES

VOC NOX Note 

2002 Base Year Emissions Inventory .................................................................................. 75.52 141.72 e 

Mobile Source Adjustments for 2002–2008 ......................................................................... 2.98 4.38 c2008

2002 Adjusted Baseline Relative to 2008 ............................................................................ 72.54 137.34 f2008 = e¥c2008

By the end of 2008, Delaware is 

required to reduce 15 percent in its 2002 

adjusted base year emissions inventory. 

According to the Phase 2 rule, Sussex 

County must achieve this 15 percent 

reduction in its VOC emission, since it 

did not have a 15 percent VOC rate-ofprogress plan approved by EPA under 

the 1-hour ozone standard. For Kent and 

New Castle Counties, their 15 percent 

emission reductions can be achieved 

form VOC emissions and/or from NOX

emissions. 

The 15 percent VOC emission 

reduction and emission target in 2008 in 

Sussex County are calculated as follows: 

Sussex 2002 adjusted VOC baseline 

relative to 2008 is 38.82 tpd. 

Required 15 percent emission reduction: 

38.82 × 15 percent = 5.82 tpd. 

2008 VOC emission target: 38.83 ¥ 5.82 

= 33.00 tpd. 

The 15 percent VOC emission 

reduction and emission target in 2008 in 

Kent and New Castle Counties are 

calculated as follows: 

Kent/New Castle 2002 adjusted VOC 

baseline relative to 2008 is 72.54 tpd. 

Required 15 percent emission reduction: 

72.54 × 15 percent = 10.88 tpd. 

2008 VOC emission target: 72.54 ¥ 

10.88 = 61.66 tpd. 

C. Control Measures and Emission 

Reductions for RFP 

The only post-2002 point source VOC 

control in Sussex County is Regulation 

No. 24, Section 46, Control of Crude Oil 

Lightering Operations. Since there will 

be no new VOC controls for point 

sources, non-point source sector, and 

non-road mobile source sector for VOC 

emissions between 2008 and 2009, 

Delaware’s 2008 emission reductions 

and projections are estimated by 

interpolating the 2002 base year 

emissions and the 2009 projections. 

Kent and New Castle Counties applied 

for and obtained total VOC and NOX

emission reductions from facility/unit 

shutdown or modification. The 2008 onroad mobile source VOC emissions were 

projected using EPA’s MOBILE6.2 for 

obtaining factors and the Peninsula 

Travel Demand Model (PTDM) for 

predicting future vehicle miles traveled 

(VMT). Tables 7 and 8 summarize the 

total 2008 VOC emission projections, in 

tpd, for the RFP requirements for Sussex 

County and Kent/New Castle Counties, 

respectively. 

TABLE 7—SUSSEX COUNTY TOTAL

VOC EMISSION PROJECTION

[tpd] 

Point Source Sector ......................... 10.71 

Area Source Sector .......................... 6.32 

Non-Road Mobile Sector .................. 8.01 

On-Road Mobile Sector .................... 7.09 

Total 2008 Emission Projection 32.13 

The total VOC emission projection 

meets the 2008 emission target under 

the 15 percent RFP requirements (33.00 

tpd). Therefore, the 2008 RFP in Sussex 

County is demonstrated. 

TABLE 8—KENT AND NEW CASTLE

COUNTIES TOTAL VOC EMISSION

PROJECTION

[tpd] 

Point Source Sector ......................... 10.51 

Area Source Sector .......................... 21.64 

Non-Road Mobile Sector .................. 13.81 

On-Road Mobile Sector .................... 14.75 

Total 2008 Emission Projection 60.71 

The total VOC emission projection 

meets the 2008 emission target under 

the 15 percent RFP requirements (61.66 

tpd). Therefore, the 2008 RFP in Kent 

and New Castle Counties is 

demonstrated. 

D. Contingency Measures 

The CAA requires States with 

nonattainment areas to implement 

specific control measures if the area 

fails to make reasonable further 

progress. This CAA provision is a 

requirement for States with moderate 

and above ozone nonattainment areas to 

include sufficient contingency measures 

in their RFP so that, upon 

implementation of such measures, 

additional emission reductions of at 

least 3 percent of the adjusted 2002 

baseline emissions would be achieved. 

Under the same provision of the CAA, 

EPA also requires that the contingency 

measures must be fully adopted control 

measures or rules, so that upon failure 

to meet milestone requirements, the 

contingency measures can be 

implemented without any further 

rulemaking activities by the States and/ 

or EPA. For more information on 

contingency measures, see the April 16, 

1992 General Preamble (57 FR 13512) 

and the November 29, 2005 Phase 2 8- 

hour ozone implementation rule (70 FR 

71612). 

To meet the requirements for 

contingency emission reductions, EPA 

allows States to use NOX emission 

reductions to substitute for VOC 

emission reductions in their 

contingency plans. The condition set 

forth by EPA for NOX substitution is 

that States must achieve a minimum of 

0.3 VOC reductions of the total 3 

percent contingency reduction, and the 

remaining 2.7 percent reduction can be 

achieved through NOX emission 

controls. Delaware included both VOC 

and NOX emission controls as 

contingency measures in this 8-hour 

ozone RFP. 

Based on the CAA and EPA 

requirements on contingency measures, 

the contingency VOC reduction for 

Delaware for the 2008 milestone year is 

as follows: the 2002 VOC baseline 

(statewide) adjusted to 2008 (see Tables 

6 and 7 in this document) is 111.36 tpd, 

therefore, contingency VOC emission 

reduction in 2008 is 111.36 multiplied 

by 3 percent = 3.34 tpd. 

Analysis in Chapter 5.5, page 29 of 

the Delaware SIP, indicates that the 

three counties in Delaware will have a 

VOC emission reduction surplus of 1.82 

tpd in 2008 [i.e., (33.00 + 61.66) ¥ 

(32.13 + 60.71) = (94.66 ¥ 92.84) = 

1.82]. Therefore there is 3.34 ¥ 1.82 = 

1.52 tpd contingency VOC reduction 

shortfall in 2008. 

Delaware’s 2002 VOC-to-NOX baseline 

(with respect to 2008) ratio is (38.82 + 

72.54): (55.95 + 137.34) = 

111.36:193.29 = 1:1.74 (Section 4, 

Tables 4–3 and 4–4 in the Delaware 

SIP). Therefore, the contingency VOC 

reduction shortfall is equivalent to 1.52 

× 1.74 = 2.64 tpd NOX reduction 

shortfall. 

Delaware has implemented numerous 

controls leading to NOX reductions in 

2008 that are greater than the identified 

2.64 contingency shortfall (see 

subsections 5.4 and 6.4 of the Delaware 

SIP). Therefore, there is no need to 

specify additional contingency 

measures for the 2008 milestone year. 


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E. RACM Analysis 

Pursuant to section 172(c)(1) of the 

CAA, States are required to implement 

all RACM as expeditiously as 

practicable. Specifically, section 

172(c)(1) states the following: ‘‘In 

general—Such plan provisions shall 

provide for the implementation of all 

reasonably available control measures as 

expeditiously as practicable (including 

such reductions in emissions from 

existing sources in the area as may be 

obtained through the adoption, at a 

minimum, of reasonably available 

control technology) and shall provide 

for attainment of the national primary 

ambient air quality standards.’’ 

Furthermore, in EPA’s Phase 2 rule, 

EPA describes how States must include 

with their attainment demonstration a 

RACM analysis (70 FR 71659). The 

purpose of the RACM analysis is to 

determine whether or not reasonably 

available control measures exist that 

would advance the attainment date for 

nonattainment areas. Control measures 

that would advance the attainment date 

are considered RACM and must be 

included in the SIP. RACM are 

necessary to ensure that the attainment 

date is achieved ‘‘as expeditious as 

practicable.’’ 

Control measures under RACT 

constitute a major group of RACM 

control measures for stationary sources. 

To meet the CAA’s RACT requirements 

under the 8-hour ozone standard, 

Delaware submitted a RACT SIP 

revision on October 2, 2006, which 

certifies that all relevant RACT controls 

have been implemented in Delaware for 

attaining the 8-hour ozone standard. 

EPA approved Delaware’s 8-hour RACT 

SIP revision on July 23, 2008 (73 FR 

42681). On May 2, 2007, Delaware 

submitted a new VOC control from 

crude oil lightering operations. EPA 

approved this rule on September 13, 

2007 (72 FR 52285). In addition to those 

RACT control measures, Delaware 

adopted a number of other VOC and 

NOX RACM measures. These measures 

include the tightening of Delaware’s 

Open Burning Regulation, Control of 

Stationary Generator Emissions, 

restrictions on Excessive Idling of Heavy 

Duty Vehicles, Control of Stationary 

Combustion Turbine Emissions, and the 

Brandywine School Districts Clean 

School Bus USA grant, and voluntary 

and mandatory Ozone Action Day 

initiatives. There are no additional 

RACM measures or group of RACM 

measures that Delaware could adopt to 

advance the attainment date from 2009 

to 2008, therefore Delaware has met the 

RACM requirements of the CAA. 

F. Transportation Conformity Budgets 

Section 176 of the CAA requires that 

highway transportation activities in 

ozone nonattainment areas must: (1) 

Establish in their SIP, mobile source 

VOC and NOX emission budgets for 

each of the milestone years up to the 

attainment year and submit the mobile 

budgets to EPA for approval; (2) upon 

adequacy determination or approval of 

EPA, States must conduct transportation 

conformity analysis for their 

Transportation Improvement Programs 

(TIPs) and long range transportation 

plans to ensure highway vehicle 

emissions will not exceed relevant 

mobile budgets; and (3) failure of 

demonstrating such transportation 

conformity lapses resulting in freezing 

of Federal highway funds and all 

Federal highway projects in the lapsed 

area. 

The mobile emission budgets for 2008 

RFP milestone are based on the 

projected 2008 mobile source emissions, 

accounting for all relevant mobile 

source controls including all Federal 

controls and Delaware specific controls. 

The 2008 mobile emissions are 

projected using EPA’s MOBILE6.2 for 

obtaining emission factors and the 

‘‘Peninsula Travel Demand Model’’ for 

predicting future VMT. Table 9 is a 

summary of the 2008 VOC and NOX

motor vehicle emissions budgets for the 

three counties in Delaware. 

TABLE 9—MOTOR VEHICLE EMISSION BUDGETS FOR 2008 

County FIPS 

2008 Emissions (tpd) 

VOC NOX

Kent .............................................................................................................................................. 10001 4.14 9.68 

New Castle .................................................................................................................................. 10003 10.61 21.35 

Sussex ......................................................................................................................................... 10005 7.09 12.86 

State Total ............................................................................................................................ ........................ 21.84 43.89 

On March 21, 2008, EPA posted the 

availability of these budgets for 

Delaware on EPA’s conformity Web site 

for the purpose of soliciting public 

comments. The public comment period 

closed on April 21, 2008 and no 

comments were received. On December 

19, 2008 (73 FR 77682), EPA published 

a notice of adequacy for the Delaware 

2008 RFP MVEBs. In this notice, EPA 

found that Delaware’s RFP MVEBs are 

adequate for transportation conformity 

purposes. As a result of EPA’s finding, 

Delaware shall use the MVEBs from the 

June 13, 2007 RFP plan for future 

conformity determinations for the 8- 

hour standard. 

IV. What Are EPA’s Conclusions? 

EPA is proposing approval of the 

Delaware’s SIP revision to meet the RFP 

requirements of the CAA for the 

Delaware portion of the Philadelphia 

1997 8-hour ozone moderate 

nonattainment area. EPA is also 

proposing approval of the RFP MVEBs, 

the 2002 base year emissions inventory, 

contingency measures, and RACM 

analysis associated with this revision. 

EPA is proposing approval of the SIP 

revision because it satisfies RFP, 

emissions inventory, RFP transportation 

conformity, contingency measures, and 

RACM requirements for the 1997 8-hour 

ozone nonattainment areas classified as 

moderate and demonstrates further 

progress in reducing ozone precursors. 

V. What Are Statutory and Executive 

Order Reviews? 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely proposes to approve state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 


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Federal Register / Vol. 75, No. 10 / Friday, January 15, 2010 / Proposed Rules 2457 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed rule 

pertaining to Delaware’s RFP Plan, 2002 

base year emissions inventory, 

contingency measures, RACM analysis, 

and transportation conformity budgets, 

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, Sulfur 

oxides, Volatile organic compounds. 

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

Dated: January 6, 2010. 

William C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2010–745 Filed 1–14–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 215, 234, 242, 244, and 

252 

RIN 0750–AG58 

Defense Federal Acquisition 

Regulation Supplement; Business 

Systems—Definition and 

Administration (DFARS Case 2009– 

D038) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

improve the effectiveness of DoD 

oversight of contractor business 

systems. 

DATES: Interested parties should submit 

comments in writing to the address 

shown below on or before March 16, 

2010. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2009–D038, 

using any of the following methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

E-mail: dfars@osd.mil. Include 

DFARS Case 2009–D038 in the subject 

line of the message. 

Fax: 703–602–0350. 

Mail: Defense Acquisition Regulations 

System, Attn: Mr. Mark Gomersall, 

OUSD (AT&L) DPAP (DARS), IMD 

3D139, 3062 Defense Pentagon, 

Washington, DC 20301–3062. 

Hand Delivery/Courier: Defense 

Acquisition Regulations System, Crystal 

Square 4, Suite 200A, 241 18th Street, 

Arlington, VA 22202–3402. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Mark Gomersall, 703–602–0302. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Contractor business systems and 

internal controls are the first line of 

defense against waste, fraud, and abuse. 

Weak control systems increase the risk 

of unallowable and unreasonable costs 

on Government contracts. To improve 

the effectiveness of Defense Contract 

Management Agency (DCMA) and 

Defense Contract Audit Agency (DCAA) 

oversight of contractor business 

systems, DoD is considering a rule to 

clarify the definition and administration 

of contractor business systems as 

follows: 

1. DoD is proposing to define 

contractor business systems as 

accounting systems, estimating systems, 

purchasing systems, earned value 

management systems (EVMS), material 

management and accounting systems 

(MMAS), and property management 

systems. 

2. DoD is proposing to implement 

compliance enforcement mechanisms in 

the form of a business systems clause 

which includes payment withholding 

that allows administrative contracting 

officers to withhold a percentage of 

payments, under certain conditions, 

when a contractor’s business system 

contains deficiencies. Under such 

circumstances, payments could be 

withheld on— 

• Interim payments under— 

Æ Cost reimbursement contracts; 

Æ Incentive type contracts; 

Æ Time-and-materials contracts; 

Æ Labor-hour contracts; 

• Progress payments; and 

• Performance-based payments. 

This is not a significant regulatory 

action and therefore was not subject to 

review under Section 6(b) of Executive 

Order 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

B. Regulatory Flexibility Act 

DoD has prepared an initial regulatory 

flexibility analysis consistent with 5 

U.S.C. 603. A copy of the analysis may 

be obtained from the point of contact 

specified herein. The analysis is 

summarized as follows: 

The objective of the rule is to 

establish a definition for contractor 

business systems and implement 

compliance mechanisms to improve 

DoD oversight of those contractor 

business systems. The requirements of 

the rule will apply to entities 

contractually required to maintain one 

or more of the defined contractor 

business systems. 

At this time DoD is unable to estimate 

the number of small entities to which 

this rule will apply. Therefore, DoD 

invites comments from small business 

concerns and other interested parties on 

the expected impact of this rule on 

small entities. 

DoD will also consider comments 

from small entities concerning the 

existing regulations in subparts affected 

by this rule in accordance with 5 U.S.C. 

610. Interested parties must submit such 

comments separately and should cite 5 

U.S.C. 610 (DFARS Case 2009–D038) in 

correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act (44 

U.S.C. chapter 35) applies because the 


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