Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Proposed Rules 57573 

listed under FOR FURTHER INFORMATION

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Program Authority: 20 U.S.C. 1098a. 

Dated: September 13, 2013. 

Lynn B. Mahaffie, 

Acting Deputy Assistant Secretary for Policy, 

Planning, and Innovation, delegated the 

authority to perform the functions and duties 

of the Assistant Secretary for Postsecondary 

Education. 

[FR Doc. 2013–22868 Filed 9–18–13; 8:45 am] 

BILLING CODE 4000–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2012–0475; FRL–9901–05– 

Region 8] 

Approval and Promulgation of Air 

Quality Implementation Plans; State of 

Colorado Second Ten-Year PM10

Maintenance Plan for Aspen 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing approval of 

the State Implementation Plan (SIP) 

revisions submitted by the State of 

Colorado. On May 25, 2011, the 

Governor of Colorado’s designee 

submitted to EPA a revised maintenance 

plan for the Aspen area for the National 

Ambient Air Quality Standards 

(NAAQS) for particulate matter with an 

aerodynamic diameter less than or equal 

to 10 microns (PM10), which was 

adopted by the State on December 16, 

2010. As required by Clean Air Act 

(CAA) section 175A(b), this revised 

maintenance plan addresses 

maintenance of the PM10 standard for a 

second 10-year period beyond the area’s 

original redesignation to attainment for 

the PM10 NAAQS. In addition, EPA is 

proposing approval of the revised 

maintenance plan’s 2023 transportation 

conformity motor vehicle emissions 

budget for PM10. This action is being 

taken under sections 110 and 175A of 

the CAA. 

DATES: Written comments must be 

received on or before October 21, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket number EPA–R08– 

OAR–2012–0475, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

• Email: ostigaard.crystal@epa.gov. 

• Fax: (303) 312–6064 (please alert 

the individual listed in the FOR FURTHER

INFORMATION CONTACT if you are faxing 

comments). 

• Mail: Carl Daly, Director, Air 

Program, U.S. Environmental Protection 

Agency (EPA), Region 8, Mailcode 8P– 

AR, 1595 Wynkoop Street, Denver, 

Colorado 80202–1129. 

• Hand Delivery: Carl Daly, Director, 

Air Program, U.S. Environmental 

Protection Agency (EPA), Region 8, 

Mailcode 8P–AR, 1595 Wynkoop Street, 

Denver, Colorado 80202–1129. Such 

deliveries are only accepted Monday 

through Friday, 8:00 a.m. to 4:30 p.m., 

excluding Federal holidays. Special 

arrangements should be made for 

deliveries of boxed information. 

Please see the direct final rule, which is 

located in the Rules section of this 

Federal Register for detailed instruction 

on how to submit comments. 

FOR FURTHER INFORMATION CONTACT: 

Crystal Ostigaard, Air Program, U.S. 

Environmental Protection Agency, 

Region 8, Mailcode 8P–AR, 1595 

Wynkoop Street, Denver, Colorado 

80202–1129, (303) 312–6602, 

ostigaard.crystal@epa.gov. 

SUPPLEMENTARY INFORMATION: In the 

Rules section of this Federal Register, 

EPA is approving the State’s SIP 

revision through a direct final rule 

without prior proposal because the 

Agency views this as a noncontroversial 

SIP revision and anticipates no adverse 

comments. A detailed rationale for the 

approval is set forth in the preamble to 

the direct final rule. If EPA receives no 

adverse comments, EPA will not take 

further action on this proposed rule. If 

EPA receives adverse comments, EPA 

will withdraw the direct final rule and 

it will not take effect. Then, EPA will 

address all public comments in a 

subsequent final rule based on this 

proposed rule. EPA will not institute a 

second comment period on this action. 

Any parties interested in commenting 

must do so at this time. Please note that 

if EPA receives adverse comment on an 

amendment, paragraph, or section of 

this rule and if that provision may be 

severed from the remainder of the rule, 

EPA may adopt as final those provisions 

of the rule that are not the subject of an 

adverse comment. See the information 

provided in the Direct Final action of 

the same title which is located in the 

Rules section of this Federal Register. 

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

Dated: August 28, 2013. 

Shaun L. McGrath, 

Regional Administrator, Region 8. 

[FR Doc. 2013–22735 Filed 9–18–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2010–0141; FRL–9901–16– 

Region 3] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Delaware; Attainment Plan for the 

Philadelphia-Wilmington, 

Pennsylvania-New Jersey-Delaware 

Nonattainment Area for the 1997 

Annual Fine Particulate Matter 

Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed Rule; Supplemental. 

SUMMARY: EPA is issuing a supplement 

to its proposed approval of Delaware’s 

state implementation plan (SIP) 

published in the Federal Register on 

November 19, 2012. The SIP revision 

demonstrates Delaware’s attainment of 

the 1997 annual fine particulate matter 

(PM2.5) national ambient air quality 

standard (NAAQS) for the PhiladelphiaWilmington, Pennsylvania-New JerseyDelaware (PA–NJ–DE) PM2.5

nonattainment area. This supplemental 

proposal addresses the potential effects 

of a January 4, 2013 decision of the 

United States Court of Appeals for the 

District of Columbia Circuit (DC Circuit 

Court) remanding to EPA two final rules 

implementing the 1997 PM2.5 NAAQS 

on EPA’s proposed action. In addition, 

EPA is revising its proposed approval of 

Delaware’s attainment plan for the 1997 

annual PM2.5 NAAQS to not rely upon 

regulations which were part of the plan 

submitted by Delaware because they are 

not necessary to demonstrate 

attainment. Finally, EPA is proposing to 

approve the 2009 and 2012 motor 


tkelley on DSK3SPTVN1PROD with PROPOSALS
57574 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Proposed Rules 

1EPA approved Delaware’s SIP submission for 

the NSR program requirements for the 1997 PM2.5

NAAQS on October 2, 2012 (77 FR 60053). 

2See 77 FR 69399. EPA notes that the November 

19, 2012 NPR also addressed the MVEBs for 

transportation conformity purposes for New Castle 

County, Delaware. EPA is supplementing its 

proposed action on the MVEBs and is taking 

additional comment on that portion of the prior 

proposed action based on EPA’s further evaluation 

of Delaware’s proposed MVEBs even though MVEBs 

are unaffected by the intervening court decision in 

NRDC v. EPA. 

3EPA notes that although the CAA imposes no 

statutory duty upon EPA to issue implementation 

rules or guidance for the PM2.5 NAAQS, 

historically, EPA has elected to issue 

implementation rules or guidance in order to assist 

states with the development of SIPs so that both 

states and EPA can better meet their respective 

statutory obligations. 

4See 72 FR 20586, April 25, 2007. 

5See 73 FR 28321, May 16, 2008. 

6The D.C. District Court’s opinion in NRDC v. 

EPA did not expressly consider that 

implementation under subpart 4 requirements also 

includes continued application of relevant subpart 

1 requirements, to the extent that subpart 4 does not 

override subpart 1. 

vehicle emissions budgets (MVEBs) 

used for transportation conformity 

purposes for New Castle County in 

Delaware. EPA is seeking comment only 

on the issues raised in this 

supplemental proposal and is not 

reopening for comment other issues 

addressed in its prior proposal. 

DATES: Written comments must be 

received on or before October 21, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2010–0141 by one of the 

following methods: 

A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. Email: fernandez.cristina@epa.gov. 

C. Mail: EPA–R03–OAR–2010–0141, 

Cristina Fernandez, Associate Director, 

Office of Air Planning Program, 

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–2010– 

0141. 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 email. 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 email 

comment directly to EPA without going 

through www.regulations.gov, your 

email 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 and Environmental 

Control, 89 Kings Highway, P.O. Box 

1401, Dover, Delaware 19903. 

FOR FURTHER INFORMATION CONTACT: Rose 

Quinto, (215) 814–2182, or by email at 

quinto.rose@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

EPA previously proposed to approve 

a SIP revision submitted by the State of 

Delaware to meet the attainment plan 

requirements for the 1997 annual PM2.5

NAAQS for the PhiladelphiaWilmington, Pennsylvania-New JerseyDelaware (PA–NJ–DE) nonattainment 

area (the ‘‘Philadelphia Area’’) on 

November 19, 2012 (77 FR 69399). 

Delaware initially submitted the 

attainment plan on April 3, 2008, and 

amended it on April 25, 2012, in order 

to address issues related to MVEBs. This 

SIP submission did not include the New 

Source Review (NSR) program 

requirements for the 1997 PM2.5

NAAQS, which the State and EPA have 

addressed separately.1

EPA’s November 19, 2012 notice of 

proposed rulemaking (NPR), proposed 

to approve Delaware’s SIP submission 

as meeting all relevant statutory and 

regulatory requirements for attainment 

plans for the 1997 annual PM2.5

NAAQS.2 EPA stated in the NPR that it 

had ‘‘determined that Delaware’s 

attainment demonstration meets the 

applicable requirements of the Clean Air 

Act (CAA), as described in the PM2.5

Implementation Rule published on 

April 25, 2007.’’ Thus, Delaware 

submitted the attainment plan, and EPA 

proposed action on that submission, 

premised upon the belief that 

attainment plan requirements for the 

1997 annual PM2.5 NAAQS should be 

designed to meet, and measured against, 

the statutory requirements of CAA as 

interpreted in EPA’s existing 

implementation rules.3

Subsequent to Delaware’s submission 

of the attainment plan and EPA’s 

proposed action upon it, however, the 

D.C. Circuit Court issued a decision 

with potential impacts on EPA’s 

proposed action. On January 4, 2013, in 

NRDC v. EPA, the D.C. Circuit Court 

remanded to EPA both the ‘‘Final Clean 

Air Fine Particle Implementation Rule’’ 

(the ‘‘2007 PM2.5 Implementation 

Rule’’) 4 and the ‘‘Implementation of the 

New Source Review (NSR) Program for 

Particulate Matter Less than 2.5 

Micrometers (PM2.5)’’ final rule (the 

‘‘2008 PM2.5 NSR/Prevention of 

Significant Deterioration (PSD) 

Implementation Rule’’).5 The D.C. 

Circuit Court found that EPA erred in 

both rules in implementing the 1997 

PM2.5 NAAQS solely pursuant to the 

general implementation provisions of 

subpart 1 of Part D of Title I of the CAA 

(subpart 1), rather than also pursuant to 

the implementation provisions specific 

to particulate matter in subpart 4 of Part 

D of Title I (subpart 4).6 As a result, the 

D.C. Circuit Court remanded both rules 

and instructed EPA ‘‘to repromulgate 

these rules pursuant to subpart 4 

consistent with this opinion.’’ 

Significantly, the D.C. Circuit Court’s 

decision remanded the rules to EPA and 

did not vacate them. In a future 

rulemaking action, EPA intends to 

respond to the D.C. Circuit Court’s 

remand and to promulgate new 

implementation regulations for the 

PM2.5 NAAQS in accordance with the 

requirements of subpart 4. In the 


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Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Proposed Rules 57575 

7As discussed in more detail later in this notice, 

EPA is also proposing herein to approve the 2009 

and 2012 MVEBs for New Castle County in 

Delaware. 

8EPA issued both a determination of attainment 

and a clean data determination for the Philadelphia 

Area on May 16, 2012 (77 FR 28782). 

9PM10 refers to particulates nominally 10 

micrometers in diameter or smaller. CAA section 

302(t). 

interim, one limited purpose of this 

supplemental rulemaking action on the 

Delaware attainment plan for the 

Philadelphia Area is to reevaluate EPA’s 

proposed approval in light of the 

potential effects of the D.C. Circuit 

Court’s decision on implementation of 

the 1997 PM2.5 NAAQS. 

In addition, EPA notes that in a 

separate rulemaking action, published 

on February 22, 2013, EPA identified 

deficiencies associated with several 

regulations within the approved 

Delaware SIP including a specific 

provision within 7–1100–1142 Del. 

Code Regs § 2 (Regulation 1142, Section 

2.0, Control of Nitrogen Oxide (NOx) 

Emissions from Industrial Boilers and 

Process Heaters at Petroleum 

Refineries). See 78 FR 12460, February 

22, 2013. In that proposed rulemaking 

action, EPA identified specific Delaware 

regulations in which state officials are 

provided unbounded discretion to set 

alternative emission limits during 

periods of start-up and shutdown of 

equipment through a permitting process 

that does not entail subsequent approval 

of the alternative emission limits 

through a SIP submission. EPA has 

proposed to find that this process 

constitutes an impermissible director’s 

discretion provision with the potential 

to allow impermissible discretionary 

exemptions from SIP emission limits. 

See 78 FR at 12495–12496. Today’s 

rulemaking action providing 

supplemental analysis and a revised 

proposal on Delaware’s 1997 annual 

PM2.5 attainment plan is separate from 

the February 22, 2013 action. EPA’s 

action in this supplemental proposal 

does not reopen the public comment 

period associated with the separate 

February 22, 2013 action; nor does 

today’s rulemaking action purport to 

revise or amend that separate proposed 

action. EPA will be taking a separate 

final action on the February 22, 2013 

proposed rulemaking action. Today’s 

rulemaking action proposes to revise 

EPA’s original proposal in the 

November 19, 2012 NPR to propose 

approval of Delaware’s 1997 PM2.5

attainment plan as meeting the 

requirements for attainment plans for 

the 1997 PM2.5 NAAQS, without 

reliance on certain measures identified 

in the attainment plan: (1) Regulation 

1142 Section 2.0 for NOX emissions at 

petroleum refineries; (2) certain control 

measures for volatile organic compound 

(VOC) emissions; and (3) the Clean Air 

Interstate Rule (CAIR). These measures 

are not necessary for the purposes of 

Reasonably Available Control Measures 

(RACM), Reasonably Available Control 

Technology (RACT), section 189(e), or 

the attainment demonstration. EPA is 

not relying on Regulation 1142 Section 

2.0, the VOC control measures, and 

CAIR as these measures are not 

necessary for expeditious attainment of 

the 1997 PM2.5 NAAQS in the 

Philadelphia Area for the reasons 

described in detail in this rulemaking 

action.7

Like many of the areas which EPA 

initially designated nonattainment for 

the 1997 PM2.5 NAAQS, the 

Philadelphia Area has already attained 

these NAAQS. EPA has issued both a 

clean data determination and a 

determination of attainment for the 

Philadelphia Area.8 However, because 

Delaware has already submitted the 

attainment plan for the Philadelphia 

Area, and has not withdrawn it, EPA 

needs to evaluate the SIP submission for 

compliance with the CAA. In the 

context of taking action under section 

110(k) to approve or disapprove a 

previously submitted attainment plan 

for the 1997 PM2.5 NAAQS for an area 

that has attained the NAAQS, EPA 

believes that it would be helpful after 

the D.C. Circuit Court’s decision to 

consider such pending attainment plans 

in light of the provisions of subpart 4. 

Accordingly, EPA has considered 

possible approaches to evaluating 

pending attainment plans for the 1997 

PM2.5 NAAQS that states have already 

developed and submitted to EPA in 

reliance on the remanded 2007 PM2.5

Implementation Rule. One potential 

approach would be for EPA to request 

that the state in question simply 

withdraw its pending SIP submission in 

toto, engage in a new state rulemaking 

process to revise and restructure the 

contents of the submission in order to 

address subpart 4 requirements 

explicitly, and then to resubmit the 

revised submission to EPA. Such an 

approach could, however, require 

substantial investment of additional 

rulemaking resources by both the state 

and EPA and could inject substantial 

unwarranted delay into the process. 

Although such an approach might be 

appropriate in the case of some 

nonattainment areas, e.g., those with 

continuing nonattainment problems for 

the 1997 PM2.5 NAAQS, EPA questions 

whether this approach would be 

constructive in all areas. In particular, 

EPA questions the necessity for such a 

resource and time intensive approach 

for areas that are already factually 

attaining the 1997 PM2.5 NAAQS 

through the attainment plan already 

adopted and submitted by the state. 

An alternative approach would be for 

EPA to proceed to evaluate the State’s 

existing attainment plan submission for 

the 1997 PM2.5 NAAQS in order to 

determine whether it would meet not 

only the applicable requirements of 

subpart 1, but also meet the applicable 

requirements of subpart 4. This 

approach would be consistent with the 

D.C. Circuit Court’s decision that EPA 

must implement the PM2.5 NAAQS 

consistent with the requirements of 

subpart 4. As set forth in this 

rulemaking action, although Delaware’s 

plan was originally submitted to address 

subpart requirements in light of the 

important fact that the Area has attained 

the 1997 PM2.5 NAAQS, EPA believes 

that the submission adequately 

addresses the requirements of both 

subparts 1 and 4. In these 

circumstances, where the existing 

attainment plan submission is adequate, 

Delaware and EPA can preserve limited 

resources for efforts that may be needed 

to address any ongoing nonattainment 

problems under the 2006 PM2.5 NAAQS 

and the 2012 PM2.5 NAAQS. 

EPA intends to provide a 

comprehensive response to the DC 

Circuit Court’s remand in NRDC v. EPA 

in a future rulemaking action. In the 

interim, EPA will proceed to review 

attainment plans that have already been 

submitted but are not yet approved 

where appropriate. In this supplemental 

notice, EPA examines the substance of 

Delaware’s SIP submission with regard 

to consistency with subpart 4 as well as 

subpart 1. With respect to the relevant 

substantive requirements for attainment 

plans, EPA notes that subpart 1 contains 

general air quality planning 

requirements for areas designated 

nonattainment. By contrast, subpart 4 

contains air quality planning 

requirements specifically applicable to 

PM10 nonattainment areas.9 Under the 

D.C. Circuit Court’s January 4, 2013 

decision in NRDC v. EPA, these same 

statutory requirements also apply for 

PM2.5 nonattainment areas. EPA has 

longstanding general guidance 

documents that interpret the 1990 

amendments to the CAA, commonly 

known as the ‘‘General Preamble’’ and 

the ‘‘Addendum,’’ that make 

recommendations to states for meeting 

the statutory requirements for SIPs for 

nonattainment areas including those of 


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57576 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Proposed Rules 

10See ‘‘State Implementation Plans; General 

Preamble for the Implementation of Title I of the 

Clean Air Act Amendments of 1990,’’ (57 FR 13498, 

April 16, 1992) (hereafter, General Preamble). EPA 

notes that it has issued additional guidance for 

attainment plans for PM10 in particular, including 

extra requirements for areas classified as ‘‘serious’’ 

nonattainment areas under subpart 4. See ‘‘State 

Implementation Plans for Serious PM10

Nonattainment Areas, and Attainment Date Waivers 

for PM10 Nonattainment Areas Generally; 

Addendum to the General Preamble for the 

Implementation of Title I of the Clean Air Act 

Amendments of 1990,’’ (59 FR 41998, August 

16,1994) (hereafter, Addendum). 

11See 57 FR 13538. 

12EPA notes that in 2005, it was proceeding 

under the assumption that it was appropriate to 

implement the 1997 PM2.5 NAAQS under subpart 

1 and accordingly did not classify areas at the time 

of the designations. 

13EPA has already addressed the requirements of 

section 188 concerning classifications under 

subpart 4, including the issue of discretionary and 

mandatory reclassification from moderate to 

serious, in the General Preamble. See 57 FR 13498, 

at 13537–8. There is no basis to conclude that the 

Philadelphia Area should be reclassified from 

moderate to serious. Under section 188(b), EPA has 

authority to reclassify a moderate area to serious 

before the attainment date if the Administrator 

determines that the area cannot attain the NAAQS 

by the applicable attainment date under section 

188(c)(1) for moderate areas, i.e., by the end of the 

sixth calendar year after designation. Under section 

188(b)(2), EPA has a duty to reclassify such a 

moderate area to serious if the area fails to attain 

by the applicable attainment date. Because the 

Philadelphia Area began attaining the 1997 annual 

PM2.5 NAAQS in 2010, and continued to attain in 

the sixth calendar year following the designation of 

the area effective in April of 2005, there would 

therefore be no basis for reclassification of the area 

to serious and thus no need to require the state to 

address the statutory requirements for an 

attainment plan for a serious nonattainment area 

under subpart 4. 

14EPA notes that this action does not address the 

NSR permit program requirements for the 1997 

PM2.5 NAAQS. Delaware has addressed those 

requirements in a separate SIP submission which 

EPA approved on October 2, 2012 (77 FR 60053). 

subpart 4.10 In the General Preamble, 

EPA discussed the relationship of 

subpart 1 and subpart 4 SIP 

requirements, and pointed out that 

subpart 1 requirements were to an 

extent ‘‘subsumed by, or integrally 

related to, the more specific PM10

requirements.’’ 11

The requirements of subpart 1 for 

attainment plans include, among other 

things: (1) Section 172(c)(1) (RACM, 

RACT, and attainment demonstrations); 

(2) section 172(c)(2) (reasonable further 

progress (‘‘RFP’’)); (3) section 172(c)(3) 

(emissions inventories); (4) section 

172(c)(5) (NSR permit program); and (5) 

section 172(c)(9) (contingency 

measures). The subpart 4 requirements 

for attainment plans are generally 

comparable, but also impose distinct 

requirements for nonattainment areas 

based upon the area’s classification as 

either ‘‘moderate’’ or ‘‘serious’’ and set 

some specific timing requirements, such 

as for imposition of control measures. In 

general, the specific requirements for 

attainment plans required initially of all 

areas under subpart 4 include: (1) 

Section 189(a)(1)(A) (NSR permit 

program); (2) section 189(a)(1)(B), 

(attainment demonstration); (3) section 

189(a)(1)(C) (RACM and RACT); (4) 

section 189(c) (RFP and quantitative 

milestones); and (5) section 189(e) 

(precursor requirements for major 

stationary sources). Subpart 4 also 

includes additional statutory SIP 

planning requirements in the event that 

EPA reclassifies a moderate 

nonattainment area to a serious 

nonattainment area and in the event the 

area needs additional extensions of time 

to attain the NAAQS. The General 

Preamble and Addendum provide 

useful additional guidance on the 

specific subpart 4 statutory 

requirements. 

For the purposes of evaluating the 

Delaware attainment plan for the 

Philadelphia Area for the 1997 annual 

PM2.5 NAAQS, EPA believes that the 

State’s submission satisfies the relevant 

provisions of subpart 4. The analysis 

supporting this conclusion is described 

in more detail in this rulemaking action. 

After addressing the classification of the 

Area under subpart 4, EPA discusses the 

pending SIP submission from the 

perspective of subpart 4 requirements, 

following the same topic order as the 

November 19, 2012 NPR: (1) Pollutants 

addressed; (2) emissions inventory 

requirements; (3) modeling; (4) RACM 

and RACT; (5) RFP; (6) contingency 

measures; and (7) attainment date. For 

each of these topics, EPA considers the 

potential impact of the D.C. Circuit 

Court’s decision in NRDC v. EPA on 

EPA’s proposed approval of the 

Delaware attainment plan for the 1997 

annual PM2.5 NAAQS for the 

Philadelphia Area. 

II. EPA’s Analysis 

A. Classification 

A preliminary step in evaluating the 

State’s attainment plan submission for 

compliance with subpart 4 requirements 

is ascertaining the correct classification 

of the Philadelphia Area as either a 

‘‘moderate’’ or a ‘‘serious’’ 

nonattainment area. EPA’s designations 

for the 1997 annual PM2.5 NAAQS did 

not include any classifications for 

nonattainment areas, but this Area 

would automatically have been 

classified as a ‘‘moderate’’ 

nonattainment area.12 Under section 

188, the CAA provides that all areas 

designated nonattainment under subpart 

4 should initially be classified ‘‘by 

operation of law’’ as moderate 

nonattainment areas, and that they 

remain classified as moderate 

nonattainment areas unless and until 

EPA later reclassifies the area as a 

serious nonattainment area.13

Thus, for purposes of evaluating the 

attainment plan submitted by Delaware 

for the Philadelphia Area, EPA believes 

that it is appropriate to consider the 

Area as a moderate nonattainment area 

with regard to the requirements of 

subpart 4. Sections 189(a) and (c) apply 

to moderate nonattainment areas and 

include the following requirements: (1) 

An approved permit program for 

construction of new and modified major 

stationary sources (section 189(a)(1)(A)); 

(2) an attainment demonstration (section 

189(a)(1)(B)); (3) provisions for RACM 

and RACT (section 189(a)(1)(C)); (4) RFP 

and quantitative milestones (section 

189(c)); and (5) regulation of PM2.5

precursors (in general to meet RACM 

and RACT requirements and as 

specifically required for major 

stationary sources by section 189(e)).14

Other subpart 1 requirements for 

attainment plans continue to apply to 

PM2.5 nonattainment areas under 

subpart 4 and include the following: (1) 

Emissions inventories (section 172(c)(3)) 

and (2) contingency measures (section 

172(c)(9)). 

B. Pollutants Addressed 

Another consideration in evaluating 

the State’s attainment plan from the 

perspective of the D.C. Circuit Court’s 

decision and subpart 4 is the approach 

to control of PM2.5 precursors in the 

Philadelphia Area. EPA’s 2007 PM2.5

Implementation Rule included 

regulatory presumptions concerning 

certain PM2.5 precursors applicable to 

attainment plans and control measures 

related to those plans. Specifically, in 

40 CFR 51.1002, EPA provided that a 

state should address sources of PM2.5,

sulfur dioxide (SO2), and NOX

emissions in its attainment plan, but 

that a state was ‘‘not required to address 

VOC [and ammonia] as . . . PM2.5

attainment plan precursor[s] and to 

evaluate sources of VOC [and ammonia] 

emissions in the State for control 

measures.’’ 

EPA established these presumptions 

concerning VOCs and ammonia in the 

2007 PM2.5 Implementation Rule 

because of uncertainties regarding the 

emission inventories for these 

pollutants and the effectiveness of 

specific control measures in various 

regions of the country in reducing PM2.5

concentrations. EPA also left open the 

possibility, however, for such regulation 

of VOC and ammonia emissions as 

PM2.5 precursors in any nonattainment 

area where that was necessary for 


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15See 2007 PM2.5 Implementation Rule (72 FR 

20586 at 20589–97, April 25, 2007). 

16NRDC v. EPA, 706 F.3d 428, 437, n.10. 

17NRDC v. EPA, 706 F.3d 428, 437, n.7. 

18 Id. 

19EPA notes that it has already addressed the 

requirements of subpart 4 for precursors, 

specifically within the context of the requirements 

of section 189(e), in the General Preamble. See 57 

FR at 13539 and 13541–2. 

20See, e.g., EPA’s 2007 PM2.5 Implementation 

Rule at issue in the NRDC v. EPA case in which 

EPA discussed the fact that emissions of SO2, NOX, 

VOCs and ammonia are factual and scientific 

precursors to PM2.5, even if that does not 

necessarily mean that control of all of these 

precursors would be required for attainment plans, 

or needed for expeditious attainment of the NAAQS 

in all areas. See 72 FR 20586, at 20589–97. 

21Thus, for example, states have developed and 

EPA has approved as meeting requirements of 

subpart 4, attainment plans that regulated NOX

emissions from major stationary, mobile, and area 

sources in an area in order to provide for 

expeditious attainment of the applicable NAAQS. 

See, e.g., ‘‘Approval and Promulgation of 

Implementation Plans for California—San Joaquin 

Valley PM10 Nonattainment Area; Serious Area Plan 

for Nonattainment of the 24-Hour and Annual PM10

Standards,’’ (69 FR 30006, May 26, 2004) 

(approving a PM10 attainment plan that imposes 

controls on direct PM10 and NOX emissions and did 

not impose controls on SO2, VOC, or ammonia 

emissions). 

22 Id. 

23See, e.g., Assoc. of Irritated Residents v. EPA, 

et al., 423 F.3d 989 (9th Cir. 2005). 

24See, e.g., ‘‘Approval and Promulgation of 

Implementation Plans; California; 2008 San Joaquin 

Valley PM2.5 Plan and 2007 State Strategy,’’ (76 FR 

69896, November 9, 2011). 

purposes of attaining the 1997 PM2.5

NAAQS. EPA intended these to be 

rebuttable presumptions that either the 

state or EPA might reverse through 

notice and comment rulemaking, if that 

were necessary to provide for 

attainment in a given nonattainment 

area. These presumptions were not 

limited to emissions only from major 

stationary sources, but rather were 

presumptions applicable to precursor 

emissions from any sources of emissions 

within the area.15

EPA’s approach to the consideration 

of PM2.5 precursors was called into 

question in the D.C. Circuit Court’s 

decision in NRDC v. EPA. The D.C. 

Circuit Court’s decision made specific 

reference to both section 189(e) and 40 

CFR 51. 1002, and stated that: 

In light of our disposition, we need not 

address the petitioners’ challenge to the 

presumptions in [40 CFR 51.1002] that 

volatile organic compounds and ammonia are 

not PM2.5 precursors, as subpart 4 expressly 

governs precursor presumptions.16

Elsewhere in the D.C. Circuit Court’s 

opinion, however, the D.C. Circuit Court 

explicitly observed that: 

Ammonia is a precursor to fine particulate 

matter, making it a precursor to both PM2.5

and PM10. For a PM10 nonattainment area 

governed by subpart 4, a precursor is 

presumptively regulated. See 42 U.S.C. 

§ 7513a(e) [section 189(e)].17

The D.C. Circuit Court reasoned that 

EPA’s approach to precursors in the 

2007 PM2.5 Implementation Rule had 

the effect of reversing the presumption 

embodied within subpart 4 that a state 

should address PM10 precursors unless 

the state made a specific showing why 

regulation of a particular precursor is 

not necessary.18

Although the D.C. Circuit Court did 

not vacate the 2007 PM2.5

Implementation Rule, in this interim 

period while EPA seeks to respond to 

the D.C. Circuit Court’s directive to 

apply subpart 4, EPA believes it is 

prudent to evaluate whether an 

attainment plan adequately addresses 

precursors under subpart 4 without 

reliance on the precursor presumptions 

in 40 CFR 51.1002. The provisions of 

subpart 4 do not define the term 

‘‘precursor’’ for purposes of PM10, nor 

do they explicitly require the control of 

any specifically identified particulate 

matter precursor. However, section 

189(e) indicates that consideration of 

precursors generally is necessary for 

attainment plans, and explicitly requires 

the control of the appropriate precursors 

from major stationary sources, unless 

there is a demonstration that such major 

stationary sources do not contribute 

significantly to nonattainment in the 

area.19 EPA has long recognized the 

scientific basis for concluding that there 

are multiple precursors to PM10, and in 

particular to PM2.5.20 PM2.5 chemical 

precursors include SO2, NOX, VOCs, 

and ammonia, although in a given 

nonattainment area, there may be 

technical or analytical limitations to the 

effective evaluation or control of one or 

more of these precursors for regulatory 

purposes. In the case of PM2.5, 

appropriate control of precursors is 

important because secondarily formed 

particles comprise the largest portion of 

ambient PM2.5 concentrations in many 

nonattainment areas. 

While subpart 4 expressly requires 

control of precursors from major 

stationary sources where direct PM from 

major sources is controlled unless 

certain conditions are met, other sources 

of precursors may also need to be 

controlled for the purposes of 

demonstrating attainment as 

expeditiously as practicable in a given 

area.21 Thus, assuming no presumptions 

under 40 CFR 51.1002, a state should 

evaluate all economically and 

technologically feasible control 

measures for direct PM2.5 emissions and 

PM2.5 precursor emissions, and should 

adopt those measures that are deemed 

reasonably available, i.e., those 

constituting RACM and RACT level 

emissions control for sources located in 

the area. EPA interprets subpart 4 to 

require analysis for control of precursors 

from all source categories in a given 

nonattainment area, unless there is a 

demonstration that controlling a 

precursor or precursors is not necessary 

for expeditious attainment of the 

NAAQS in the Area at issue. 

In the event that the State’s plan 

includes controls on major stationary 

sources for PM10 in order to achieve 

timely attainment in the area, section 

189(e) requires controls on major 

stationary sources of all PM10 precursors 

located within the area for all 

precursors, unless there is a showing 

that such sources do not contribute 

significantly to violations in the area. 

Thus, subject to section 189(e), EPA’s 

existing interpretation of subpart 4 

requirements with respect to precursors 

in attainment plans for PM10 as set out 

in the General Preamble contemplates 

that states may develop attainment 

plans that regulate only those precursors 

that are necessary for purposes of 

attainment in the area in question, i.e., 

states may determine that only certain 

precursors need be regulated for 

attainment purposes.22 Courts have 

upheld this approach to the 

requirements of subpart 4 for PM10.23

EPA believes that application of this 

same approach to PM2.5 precursors 

under subpart 4 is appropriate and 

reasonable. Indeed, EPA has already 

taken action upon attainment plans for 

the 1997 PM2.5 NAAQS in other areas 

after carefully evaluating the state’s 

conclusions regarding which PM2.5

precursors should be regulated in the 

area at issue.24

For the reasons discussed in this 

section, EPA believes that Delaware’s 

April 2008 attainment plan submission 

has adequately addressed PM2.5

precursors, both for purposes of RACM 

and RACT controls on appropriate 

sources for attainment of the NAAQS, 

and for purposes of section 189(e) with 

respect to precursors from major 

stationary sources. In the November 

2012 proposed approval of Delaware’s 

attainment plan for the Philadelphia 

Area, EPA already proposed to concur 

with the State’s approach to regulation 

of PM2.5 precursors. As discussed in that 

NPR, the State, in accordance with 

EPA’s existing 2007 PM2.5

Implementation Rule, addressed 

regulation of direct PM2.5, SO2, and NOX

emissions and elected not to address 

VOC and ammonia emissions. Although 

in its SIP submission the State 

acknowledged that it was relying, in 

part, on the presumptions established 


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25See Section 1.4 of the ‘‘Delaware State 

Implementation Plan for Nonattainment of the 

PM2.5 National Ambient Air Quality Standard,’’ 

dated March 20, 2008, submitted to EPA and 

included in the docket for this action (hereafter, 

Delaware SIP Submission). 

26EPA notes that with inclusion of the most 

recent quality assured and certified data for 2011, 

the design value for the Philadelphia Area is now, 

based upon the years 2009–2011 is 13.7 micrograms 

per cubic meter (mg/m3). See http://www.epa.gov/

airtrends/values.html. 

27See Delaware SIP Submission, Section 1.4.2. 

28See General Preamble, 57 FR 13358 and 13359– 

40. 

29See Delaware SIP Submission, page 34 Table 3– 

1 and page 35 Table 3–2. 

30EPA has highlighted this point specifically 

within the context of the requirements of section 

189(e) in the General Preamble. See 57 FR 13541– 

2. 31See General Preamble, 57 FR 13539. 32See General Preamble, 57 FR 13542. 

by EPA’s implementation rule, the State 

provided additional substantive 

justification for its decisions not to 

regulate VOCs or ammonia as PM2.5

precursors in the Delaware attainment 

plan for the Philadelphia Area.25

In light of the D.C. Circuit Court’s 

decision in NRDC v. EPA, EPA has again 

reviewed Delaware’s attainment plan, 

and EPA finds that Delaware’s approach 

to PM2.5 precursors is appropriate for 

this Area and is consistent with the 

requirements of subpart 4 concerning 

regulation of precursors without 

reliance on the presumptions of 40 CFR 

51.1002. EPA’s proposal to continue to 

approve the Delaware’s attainment plan 

submission in this supplemental 

proposal is based on a number of 

considerations. 

First, quality-assured monitoring data 

establish that the Philadelphia Area has 

attained and continues to attain the 

1997 annual PM2.5 NAAQS, through the 

approach to precursor pollutants 

adopted by the State in the submitted 

attainment plan.26 The State’s SIP thus 

adequately addressed the attainment 

problem for this NAAQS through 

controls of direct PM2.5, SO2, and NOX. 

Given the Area’s attainment of the 1997 

annual PM2.5 NAAQS, it logically 

follows that no additional controls of 

other PM2.5 precursors are necessary for 

the Philadelphia Area to timely attain 

that NAAQS. Because EPA’s 

longstanding approach to precursors 

under subpart 4, as explained in the 

General Preamble, authorizes a state to 

establish that it can attain the NAAQS 

expeditiously by focusing on some but 

not all precursors, EPA believes that 

Delaware’s submitted attainment plan 

for the Philadelphia Area is consistent 

with this aspect of subpart 4. 

Second, EPA believes that the facts 

and circumstances support the State’s 

decision not to treat VOC and ammonia 

as PM2.5 precursors for purposes of 

RACM and RACT for attainment of the 

1997 annual PM2.5 NAAQS in the 

Philadelphia Area. With respect to VOC, 

the State already regulates VOC 

emissions from a broad spectrum of 

sources in order to meet the ozone 

NAAQS. This includes control of VOC 

emissions from sources within the 

Philadelphia Area, i.e., New Castle 

County in Delaware.27 EPA’s General 

Preamble guidance on precursors under 

subpart 4 advised that a state, in 

determining whether to address VOCs 

for purposes of PM10, could take into 

consideration the existing regulation of 

VOC emissions for purposes of 

controlling other pollutants.28 With 

respect to ammonia, Delaware’s SIP 

submission indicates that the emissions 

of ammonia within New Castle County 

are relatively low from all source 

categories. The 2002 base year inventory 

reflects that ammonia emissions in New 

Castle County were estimated at only 

1,384 tons per year (tpy), and this 

amount is relatively small compared to 

other precursor emissions such as SO2

at 50,237 tpy and NOX at 30,784 tpy. 

Moreover, those emissions of ammonia 

are distributed across various types of 

sources and thus are not the result of 

emissions from a common source or 

source category.29

Third, EPA believes that the wide 

margin by which the area is attaining 

the 1997 annual PM2.5 NAAQS supports 

the conclusion that it was not necessary 

to treat VOCs and ammonia as PM2.5

precursors in this area differently for 

purposes of these NAAQS. The current 

air quality design value for New Castle 

County is 10.7 mg/m3 (based on 2009– 

2011 air quality data), which is well 

below the 1997 annual PM2.5 NAAQS of 

15 mg/m3. More importantly, the current 

design value for the entire Philadelphia 

Area is 13.7 mg/m3 (based on 2009–2011 

air quality data) which is also well 

below the 1997 annual PM2.5 NAAQS of 

15 mg/m3. 

In addition to the general approach to 

precursors, EPA’s evaluation of 

Delaware’s attainment plan for the 

Philadelphia Area also indicates that it 

is consistent with the specific precursor 

requirements of section 189(e) for major 

stationary sources. In prior PM10

attainment plans under subpart 4, states 

have considered controls of PM10

precursors from various types of 

sources, including major stationary, 

mobile, and area sources in the area at 

issue, as necessary to attain the standard 

as expeditiously as practicable. Such 

consideration of potential precursor 

controls from all sources is relevant to 

the RACM and RACT and attainment 

demonstration components of an 

attainment plan under subpart 4. With 

respect specifically to controls of those 

precursors from major stationary 

sources, CAA section 189(e) explicitly 

provides that all control requirements 

for major stationary sources of direct 

PM10 shall also apply to all PM10

precursors from those sources, except 

where EPA determines that emissions of 

the relevant precursors from the major 

stationary sources ‘‘do not contribute 

significantly to PM10 levels which 

exceed the standard in the area.’’ 

As the State has already attained the 

1997 annual PM2.5 NAAQS without 

additional controls of precursors from 

major stationary sources, EPA believes 

that the current control measures within 

the attainment plan are sufficient for 

purposes of satisfying section 189(e). In 

EPA’s General Preamble guidance for 

meeting subpart 4 requirements, EPA 

advised that evaluation of a state’s 

compliance with section 189(e) be based 

upon the specific facts and 

circumstances of the particular area at 

issue.30 EPA indicated that this 

determination should take into account 

any relevant information, including ‘‘the 

significance of precursors to overall 

attainment.’’31

With respect to the State’s decision 

not to address VOCs from major 

stationary sources for purposes of 

attaining the 1997 PM2.5 NAAQS, EPA 

proposes to find that conclusion 

sufficient for purposes of satisfying 

section 189(e). The State’s SIP 

submission indicated that it has already 

adequately regulated VOCs for other 

NAAQS and this is a valid 

consideration. Concerning precursor 

regulation under section 189(e), EPA 

explicitly recommended in the General 

Preamble that existing controls of VOCs 

under other CAA statutory requirements 

may suffice to relieve a state from the 

need to adopt VOC controls as 

precursors to PM10 from major 

stationary sources under section 

189(e).32 With respect to ammonia, the 

State’s evaluation of the Philadelphia 

Area indicates that there are no major 

stationary sources of ammonia in New 

Castle County. Given that no such major 

sources exist, section 189(e) would not 

require any additional controls for 

ammonia. Thus, based upon these facts, 

EPA believes that the evaluation 

submitted by the State adequately 

demonstrates that ammonia controls for 

major stationary sources are not needed 

in the Philadelphia Area for purposes of 

section 189(e) for the 1997 annual PM2.5

NAAQS. In the alternative, in light of 

these facts and circumstances, and 

because the Area is currently attaining 


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33See General Preamble, 57 FR 13539. EPA notes, 

however, that under subpart 4 requirements states 

may need to submit updated emissions inventories 

to support later SIP submissions, such as SIP 

submissions to address the requirements for serious 

areas under section 189(b)(1), or the requirements 

for an extension of the serious area attainment date 

under section 188(e). 

the 1997 annual PM2.5 NAAQS, EPA 

proposes to find that emissions of VOC 

and ammonia from major stationary 

sources in Delaware do not contribute 

significantly to levels exceeding the 

1997 annual PM2.5 NAAQS at this time 

in the Philadelphia Area for purposes of 

section 189(e). 

As to complying with section 189(e) 

for SO2 and NOX, EPA likewise 

proposes to find that Delaware has 

already imposed the requisite level of 

emissions controls on the relevant 

categories of major stationary sources 

located within the Philadelphia Area. 

EPA notes that it is not relying on one 

regulation previously approved into the 

Delaware SIP (Regulation 1142 Section 

2.0) as part of the attainment 

demonstration for the 1997 PM2.5

NAAQS because it is not necessary to 

demonstrate attainment in this area. 

Through numerous existing regulations 

or other state actions, which are 

incorporated into Delaware’s SIP, 

Delaware has regulated and is 

continuing to regulate major stationary 

sources of SO2 and NOX in the 

Philadelphia Area. Taking into 

consideration the existing regulation of 

major stationary sources, including 

those listed below (with the exception 

of Regulation 1142 Section 2.0), and the 

fact that the Area has already attained 

the 1997 PM2.5 NAAQS with its current 

approach to regulation of PM2.5

precursors from major stationary 

sources, EPA believes that it is 

reasonable to conclude in the context of 

this action that there is no need to 

revisit the attainment control strategy 

with respect to emissions of SO2 and 

NOX from major stationary sources in 

Delaware for the 1997 annual PM2.5

NAAQS for purposes of satisfying 

section 189(e). The SIP currently 

includes the following precursor 

controls on major stationary sources: 

• Regulation 1146, Electric 

Generating Unit (EGU) Multi-Pollutant 

Regulation, SO2 and NOX emission 

control (effective December 2007). SIP 

approved on August 28, 2008 (73 FR 

50723). 

• Regulation 1148, Control of 

Stationary Combustion Turbine Electric 

Generating Unit Emissions, NOX

emission control (effective January 

2007). SIP approved on December 10, 

2008 (73 FR 66554). 

• Regulation 1144, Control of 

Stationary Generator Emissions, SO2, 

PM, VOC, and NOX emission control 

(effective January 2006). SIP approved 

on May 29, 2008 (73 FR 23101). 

• Regulation 1142, Section 1.0, 

Control of NOX Emissions from 

Industrial Boilers, NOX emission control 

(effective December 2010). SIP approved 

on June 4, 2010 (75 FR 31711). 

• Regulation 1142, Section 2.0, 

Control of NOX Emissions from 

Industrial Boilers and Process Heaters at 

Petroleum Refineries, NOX emission 

control, New Castle County (effective 

June 2012). SIP approved May 5, 2012 

(77 FR 28489). 

• Facility and Unit shutdowns (see 

Table 4–3 in the Delaware submittal— 

NOX, SO2, PM2.5 emission reductions). 

• Controls on Residential 

Woodstoves, 40 CFR Part 60 Subpart 

AAA—New Source Performance 

Standards (‘‘NSPS’’) for PM, VOC, and 

NOX emission control. 

• Regulation 1113, Open Burning 

Controls, PM, VOC, and NOX emission 

control (effective October 2007). SIP 

approved on September 9, 2007 (72 FR 

53686). 

EPA is not relying on Regulation 1142 

Section 2.0 in this evaluation because it 

is not necessary for the purposes of 

attainment in this Area. As previously 

discussed, the Philadelphia Area is 

attaining the 1997 PM2.5 NAAQS. The 

current design value for the 

Philadelphia Area is 13.7 mg/m3 and the 

1997 PM2.5 NAAQS is 15.0 mg/m3 based 

on a 3-year average of annual mean 

PM2.5 concentrations. Regulation 1142 

Section 2.0 applies to NOX emissions at 

petroleum refineries, but there is only 

one such petroleum refinery in 

Delaware. The source is separately 

subject to a Federally-enforceable 

Consent Decree and several Consent 

Decree addendums between the source 

and EPA which limit NOX emissions 

and require NOX control measures at 

several units at the refinery. In addition, 

the source has a Federally-enforceable 

permit which limits NOX emissions at 

the source to 2,525 tpy of NOX. Further, 

as previously mentioned, the 2002 base 

year inventory reflects that NOX

emissions were 30,784 tpy in New 

Castle County such that the source’s 

2,525 tpy of NOX are relatively small in 

comparison and are already subject to 

Federally-enforceable controls. 

After EPA’s analysis of the source’s 

permit limitations on NOX emissions, 

Federally-enforceable Consent Decree 

requirements, and present NOX

emissions which are relatively small in 

comparison to NOX emissions in New 

Castle County, EPA concludes that 

additional control of NOX emissions at 

the source is not necessary to attainment 

or maintenance of the 1997 PM2.5

NAAQS in the Philadelphia Area. 

Therefore, Regulation 1142 Section 2.0 

is not needed for Delaware’s attainment 

demonstration to enable the 

Philadelphia Area to expeditiously 

attain as Philadelphia Area has already 

attained the 1997 annual PM2.5 NAAQS 

nor to show the Philadelphia Area can 

continue to attain the 1997 annual PM2.5

NAAQS. 

In summary, the determination 

whether the regulation of one or more 

PM2.5 precursors is necessary for 

attainment of the 1997 PM2.5 NAAQS 

must ultimately be evaluated based on 

the particular facts and circumstances of 

each area, and upon the emissions 

reductions needed for that specific 

NAAQS. Delaware has already 

addressed emissions of direct PM2.5, 

SO2, and NOX in the Philadelphia Area 

and shown that the entire area has 

attained 1997 annual PM2.5 NAAQS 

without additional regulation of VOCs 

or ammonia in Delaware for that 

purpose. Moreover, Delaware has 

already identified those controls of 

PM2.5, SO2, and NOX that it relied upon 

for attainment of the 1997 annual PM2.5

NAAQS, and the fact that the Area is 

now attaining the NAAQS indicates that 

these controls were sufficient for this 

purpose. Under these circumstances, 

EPA believes that no further evaluation 

of this issue is necessary at this time for 

purposes of both attainment and section 

189(e) and thus is continuing to propose 

approval of Delaware’s approach to 

precursors, even taking into account the 

provisions of subpart 4 with the 

exception of Regulation 1142 Section 

2.0 which EPA is not relying upon 

because it is not necessary for 

attainment of the 1997 annual PM2.5

NAAQS in this Area. 

C. Emissions Inventory Requirement 

Section 172(c)(3) of the CAA requires 

that states submit a comprehensive, 

accurate, current inventory of actual 

emissions from all sources in the 

nonattainment area. Subpart 4 adds no 

additional emissions inventory 

requirements. In the General Preamble, 

EPA stated that section 172(c)(3) applies 

for purposes of subpart 4, which itself 

contains no additional emissions 

inventory requirements for purposes of 

PM10.33

EPA’s remanded 2007 PM2.5

Implementation Rule required states to 

meet emissions inventory requirements, 

including a statewide emissions 

inventory of direct PM2.5 and of all 

PM2.5 precursors, any additional 

emissions inventory information needed 

to support an attainment demonstration 


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34See 40 CFR 51.1008. 

35See 2007 PM2.5 Implementation Rule, 72 FR 

20648. EPA noted that the obligation to address all 

of the scientific precursors of PM2.5 was a separate 

requirement needed to support various regulatory 

purposes, including the evaluation of whether 

relying on the rebuttable presumptions for 

precursors was correct in a given area. 

36See 77 FR 69399, at 69403. 

37For further details, see the TSD document 

entitled ‘‘Technical Support Document (TSD) for 

Emissions Inventories for the Delaware 

Nonattainment Area Particulate Matter (PM2.5) State 

Implementation Plan (SIP) Base Year Inventory,’’ 

dated June 16, 2012, The TSD is available in the 

docket online at www.regulations.gov, Docket 

Number EPA–R03–OAR–2010–0141. 

38See (78 FR 10420, March 4, 2013). 

39For further details, see the TSD document 

entitled ‘‘Technical Support Document for the 

Modeling and Weight of Evidence Portions of the 

Delaware SIP for Attainment of the PM2.5 NAAQS,’’ 

dated June 15, 2012 (Modeling TSD). The Modeling 

TSD is available in the docket online at 

www.regulations.gov, Docket Number EPA–R03– 

OAR–2010–0141. 

40See 77 FR 69399, at 69404. 

41For this reason, EPA issued both a 

determination of attainment and a clean data 

determination for the Philadelphia Area on May 16, 

2012 (77 FR 28782). 

42As discussed in section II.H. of this notice, EPA 

is proposing to find that the State’s plan provided 

for attainment by a date appropriate for a moderate 

nonattainment area under subpart 4 requirements, 

given the facts and circumstances of this area. 

43See Modeling TSD at page 4. 

and RFP requirements, and a baseline 

(i.e., base year) emissions inventory 

suitable for the SIP planning 

requirements for the area at issue.34 As 

EPA explained in the preamble to the 

final 2007 PM2.5 Implementation Rule, 

the emissions inventory requirement 

includes providing emissions 

information for direct PM2.5, SO2, NOX, 

VOCs, and ammonia in order to provide 

the information necessary for SIP 

planning, including the need to evaluate 

which PM2.5 precursors a state should 

regulate in a given nonattainment 

area.35

EPA’s November 19, 2012 NPR 

already proposed approval of 

Delaware’s submission with respect to 

emissions inventory requirements.36

EPA explained in that NPR Delaware’s 

emissions inventory information was 

consistent with EPA’s guidance and 

correctly included the emissions of 

direct PM2.5, SO2, NOX, VOCs, and 

ammonia.37 EPA further explained 

Delaware’s sources of information for 

emissions for stationary sources, area 

sources, and mobile sources and 

indicated that the State’s approach was 

appropriate. Moreover, EPA has already 

taken separate final action to approve 

the base year emissions inventory 

submitted by Delaware as part of its 

attainment plan for the 1997 PM2.5

NAAQS for the Philadelphia Area.38

EPA believes that the DC Circuit 

Court’s decision in NRDC v. EPA does 

not affect the emissions inventory 

requirements for the 1997 PM2.5

NAAQS. The DC Circuit Court’s remand 

of the 2007 PM2.5 Implementation Rule 

to EPA with instructions to 

repromulgate implementation 

regulations consistent with subpart 4 

would not result in additional emissions 

inventory requirements under subpart 4 

because none exist. The DC Circuit 

Court’s comments on addressing PM2.5

precursors consistent with subpart 4 

requirements also would not compel a 

different approach with respect to 

emissions inventories from that which 

EPA required under subpart 1. EPA’s 

prior approach under subpart 1 already 

obligated states to include emissions of 

direct PM2.5, SO2, NOX, VOCs, and 

ammonia in such inventories, and 

provided no presumptions to exclude 

precursors from inventories. To the 

contrary, the emissions inventory 

requirement includes these precursors 

to assure adequate information to 

inform decisions about what pollutants 

to regulate for purposes of attaining the 

NAAQS in a given area. 

Because the emissions inventories 

submitted by Delaware for the 

attainment plan for the 1997 PM2.5

NAAQS already included emissions of 

direct PM2.5, SO2, NOX, VOCs, and 

ammonia, EPA concludes that there is 

no need to reexamine the emissions 

inventories for the Philadelphia Area. 

D. Modeling 

As required, Delaware submitted 

modeling as part of the attainment plan 

for the Philadelphia Area. Delaware 

relied upon regional modeling that 

indicated the entire Philadelphia Area, 

including New Castle County, would 

attain the 1997 annual PM2.5 NAAQS by 

2010. EPA carefully evaluated the 

State’s modeling demonstration and 

concluded that it adequately supported 

the State’s conclusion that the area 

would attain the 1997annual PM2.5

NAAQS by the projected attainment 

date.39

Accordingly, EPA proposed approval 

of the State’s modeling demonstration in 

the November 19, 2012 NPR.40 EPA 

explained that the State’s modeling was 

consistent with EPA’s guidance for such 

a demonstration, that the State had 

adequately articulated the bases for its 

modeling, and that the model supported 

the conclusion that the area would 

attain the 1997 annual PM2.5 NAAQS by 

the attainment date. Moreover, EPA 

noted that the model predicted that the 

Philadelphia Area would attain the 

NAAQS comfortably, with a 2009 

annual average design value predicted 

to be 13.3 ug/m3, and thus well below 

the level of the 1997 PM2.5 NAAQS by 

the attainment date of April 5, 2010. 

The model’s predictions have proved 

accurate, and monitoring data showed 

the Philadelphia Area attained the 1997 

annual PM2.5 NAAQS by 2010, and 

continues to do so.41

EPA believes that the decision in 

NRDC v. EPA does not affect EPA’s 

proposed approval of the attainment 

demonstration modeling submitted as 

part of Delaware’s attainment plan for 

the Philadelphia Area. First, section 

189(a)(1)(B) provides that for a moderate 

nonattainment area, a state must submit 

either ‘‘a demonstration (including air 

quality modeling) that the plan will 

provide for attainment by the applicable 

attainment date’’ or ‘‘a demonstration 

that attainment by such date is 

impracticable.’’ Though not specifically 

intended to meet section 189(a)(1)(B), 

the State’s modeling demonstrated 

attainment by a date consistent with 

that applicable to a moderate 

nonattainment area.42 The state 

supported its demonstration with 

modeling consistent with EPA’s 

guidance recommendations for this 

purpose. 

Second, the modeling relied upon by 

the State addressed direct PM2.5 and 

PM2.5 precursors. As explained in more 

detail in the November 19, 2012 NPR, 

the state relied upon the Community 

Multi-scale Air Quality Model (CMAQ) 

modeling conducted by the MidAtlantic/Northeast Visibility Union 

(MANE–VU), using simulations of 

chemical reactions, emissions of PM2.5

and PM2.5 precursors, and a 

sophisticated meteorological model to 

evaluate PM2.5 concentrations over the 

eastern United States.43 The MANE–VU 

modeling included emissions of PM2.5, 

SO2, NOX, VOCs, and ammonia. The 

State also used EPA’s recommended 

speciated modeled attainment test 

(‘‘SMAT’’) to evaluate ambient PM2.5

particles, including eight types of major 

components of ambient particles 

including sulfates, nitrates, ammonium, 

and organic carbon. Thus, the State 

likewise included evaluation of 

particles that result from emissions of 

SO2, NOX, VOCs, and ammonia through 

this means. Through this modeling, the 

State demonstrated attainment through 

analyses that did not omit consideration 

of either VOC or ammonia emissions as 

part of that process. 

Because the modeling submitted by 

Delaware addressed direct PM2.5, SO2, 

NOX, VOCs, and ammonia, and correctly 

predicted that the area would attain the 

1997 PM2.5 NAAQS by 2010, EPA 

concludes that there is no need to 

reexamine the attainment plan modeling 


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44States with areas later classified as ‘‘serious’’ 

nonattainment areas under subpart 4 must also 

develop and submit later plans to meet additional 

requirements for serious areas, but those are not 

germane to this action for the reasons discussed in 

section II.A. of this notice. 

45See General Preamble, 57 FR 13540–41. 

46See General Preamble, 57 FR 13541. 

for the Philadelphia Area. Thus, EPA 

does not believe that the DC Circuit 

Court’s decision in NRDC v. EPA should 

have any bearing on EPA’s prior 

proposed approval of the modeling as 

meeting CAA requirements in this case. 

E. Reasonably Available Control 

Measures/Reasonably Available Control 

Technology 

Another aspect of Delaware’s 

submitted attainment plan potentially 

impacted by the NRDC v. EPA decision 

is whether Delaware has adequately 

addressed the requirement for RACM 

and RACT for the Philadelphia Area. 

EPA in this supplemental notice 

considers this requirement under 

subpart 4 as well as under subpart 1, 

and evaluates whether the subpart 4 

requirement for RACM and RACT 

would affect the control measures 

identified as part of the Delaware 

attainment plan for the Philadelphia 

Area. For the following reasons, EPA 

believes that Delaware’s already 

submitted attainment plan for the 

Philadelphia Area adequately meets 

these requirements under subpart 4 for 

purposes of the 1997 PM2.5 NAAQS 

with the exception of CAIR as 

previously proposed in the November 

19, 2012 NPR, Regulation 1142 Section 

2.0 for NOX emissions at petroleum 

refineries, and certain control measures 

for VOC emissions as discussed in more 

detail in this section. 

The general SIP planning 

requirements for nonattainment areas 

under subpart 1 include section 

172(c)(1), which imposes on states an 

obligation to provide for the 

implementation of all RACM. Section 

172(c)(1) provides, parenthetically, that 

RACM also includes reductions from 

RACT. The terms RACM and RACT are 

not defined within subpart 1 or section 

302. However, section 172(c) indicates 

that what constitutes RACM or RACT is 

related to what is necessary for 

attainment in a given area, as the 

provision explicitly requires that such 

measures must provide for attainment of 

the NAAQS in the area covered by the 

attainment plan. 

EPA based its remanded 2007 PM2.5

Implementation Rule on the general 

attainment plan requirement for RACM 

and RACT in section 172(c). EPA 

included requirements for the process 

by which states should determine and 

establish what control measures would 

constitute RACM and RACT level 

controls for appropriate sources in a 

given nonattainment area for the 1997 

PM2.5 NAAQS. Specifically, in 40 CFR 

51.1010(a), EPA provided that a state 

should submit a demonstration that it 

had adopted all RACM and RACT 

‘‘necessary to demonstrate attainment as 

expeditiously as practicable and to meet 

RFP requirements.’’ EPA also required 

states to include a ‘‘list of the potential 

measures considered by the state, and 

information and analysis sufficient to 

support the state’s judgment that it has 

adopted all RACM, including RACT.’’ 

Moreover, in 40 CFR 51.1010(b), EPA 

provided that a state could determine 

that certain otherwise available control 

measures are not RACM or RACT for 

sources in the area if, considered 

cumulatively, the measures not adopted 

would not advance the attainment date 

in the area by at least one year. 

The SIP planning requirements 

specific to PM10 under subpart 4 

likewise impose upon states an 

obligation to develop attainment plans 

that impose RACM and RACT on 

sources within a nonattainment area. 

Section 188(a)(1)(C) requires that states 

with areas classified as moderate 

nonattainment areas must have SIP 

provisions to assure that RACM and 

RACT level controls for PM10 are 

implemented by no later than four years 

after designation of the area.44 As with 

subpart 1, the terms RACM and RACT 

are not defined within subpart 4. Nor do 

the provisions of subpart 4 specify how 

states are to meet the RACM and RACT 

requirements. However, EPA’s 

longstanding guidance in the General 

Preamble provides recommendations for 

appropriate considerations for 

determining what control measures 

constitute RACM and RACT for 

purposes of meeting the statutory 

requirements of subpart 4. 

EPA’s existing guidance for RACM 

and RACT under subpart 4 is 

comparable to the approach that EPA set 

forth in the 2007 PM2.5 Implementation 

Rule. EPA’s guidance for RACM under 

subpart 4 in the General Preamble 

includes: (1) A list of some potential 

measures for states to consider; (2) a 

statement of EPA’s expectation that the 

state will provide a reasoned 

explanation for a decision not to adopt 

a particular control measure; (3) 

recognition that some control measures 

might be unreasonable because the 

emissions from the affected sources in 

the area are de minimis; (4) an emphasis 

on state evaluation of potential control 

measures for reasonableness, 

considering factors such as 

technological feasibility and the cost of 

control; and (5) encouragement that 

states evaluating potential control 

measures imposed upon municipal or 

other governmental entities also include 

consideration of the impacts on such 

entities, and the possibility of partial 

implementation when full 

implementation would be infeasible 

(e.g., phased implementation of 

measures such as road paving).45

With respect to RACT requirements, 

EPA’s existing guidance in the General 

Preamble: (1) Noted that RACT has 

historically been defined as ‘‘the lowest 

emission limit that a source is capable 

of meeting by the application of control 

technology that is reasonably available 

considering technological and economic 

feasibility;’’ (2) noted that RACT 

generally applies to stationary sources, 

both stack and fugitive emissions; (3) 

suggested that major stationary sources 

be the minimum starting point for a 

state’s RACT analysis; and (4) 

recommended that states evaluate RACT 

not only for major stationary sources, 

but for other source categories as needed 

for attainment and considering the 

feasibility of controls.46

For both RACM and RACT, EPA notes 

that an overarching principle is that if 

a given control measure is not needed 

to attain the relevant NAAQS in a given 

area, then by definition that control 

measure would not be required as 

RACM or RACT because it would not be 

reasonable to impose controls that are 

not in fact needed for attainment 

purposes. In both the 2007 PM2.5

Implementation Rule interpreting the 

subpart 1 RACM and RACT 

requirements and the General Preamble 

making recommendations for the 

subpart 4 RACM and RACT 

requirements, the focus is upon the 

process to identify emissions sources, to 

evaluate potential emissions controls, 

and to impose those control measures 

that are reasonable and that are 

necessary to bring the area into 

attainment as expeditiously as 

practicable, but by no later than the 

applicable attainment date for the area. 

In its submitted attainment plan for 

the Philadelphia Area, Delaware 

addressed the RACM and RACT 

requirements of subpart 1 as interpreted 

in EPA’s remanded 2007 PM2.5

Implementation Rule. As discussed in 

more detail in EPA’s November 19, 2012 

NPR, Delaware followed EPA’s 

recommended process for evaluating 

which measures would constitute 

RACM and RACT in the Philadelphia 

Area. First, Delaware ascertained that 

emission controls of PM2.5, SO2, and 

NOX are necessary for attainment in this 

Area and that controls for ammonia or 


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47As discussed in section II.B. of this notice, EPA 

is proposing to find that the State’s determination 

of which precursors to address was adequately 

supported, given the facts and circumstances of this 

Area. 

48EPA notes that because the State did not need 

to adopt additional control measures in order to 

provide for timely attainment in the area, reliance 

on existing federally enforceable measures already 

in the SIP was appropriate. Thus, the State’s 

attainment plan submission identified those control 

measures for PM2.5, SO2, and NOX that achieved the 

local emissions reductions that helped the area to 

attain the 1997 PM2.5 NAAQS and thus were 

sufficient to constitute RACM and RACT for sources 

in the area, with the exception of certain VOC 

control measures, Regulation 1142 Section 2.0 for 

petroleum refineries, and CAIR for EGUs. 49See Delaware SIP submission at page 15. 

additional emissions controls for VOCs 

are not.47 Second, Delaware evaluated 

the relevant emissions sources in the 

area, including ‘‘point sources’’ (i.e., 

major stationary sources), ‘‘non-point 

sources’’ (i.e., area sources), non-road 

mobile sources, and on-road mobile 

sources. Third, Delaware identified the 

control measures that it considered to be 

RACM and RACT for these types of 

sources in the Philadelphia Area 

because they were the measures that 

helped to provide for attainment by the 

2010 attainment date. Fourth, Delaware 

identified and evaluated additional 

potential control measures and 

explained why adoption of those 

measures would not advance the 

attainment date by at least one year. 

Through this analytical approach, 

Delaware’s attainment plan identified a 

suite of control measures already in the 

State’s SIP that helped to bring the 

Philadelphia Area into attainment for 

the 1997 PM2.5 NAAQS by the 

applicable attainment date and thus 

constituted RACM and RACT for the 

1997 PM2.5 NAAQS for this Area.48

EPA has already proposed to find that 

the Delaware attainment plan for the 

Philadelphia Area meets the RACM and 

RACT requirements for the 1997 PM2.5

NAAQS, with the exception of one 

measure that the state identified as a 

RACM and RACT measure, i.e., CAIR. 

EPA proposed this approval based upon 

the State’s compliance with the 

requirements of the now remanded 2007 

PM2.5 Implementation Rule, but EPA 

believes that the submitted attainment 

plan also meets the statutory RACM and 

RACT requirements of subpart 4 for 

several reasons. 

EPA’s longstanding guidance for the 

determination of RACM and RACT 

under the statutory requirements of 

subpart 4 is analogous to that of subpart 

1. EPA’s General Preamble patterns the 

process for ascertaining RACM and 

RACT under subpart 4 after subpart 1, 

including comparable analytical steps 

and means for identifying relevant 

sources and potential control measures 

for those sources, and for evaluating 

whether potential control measures are 

reasonable based upon factors such as 

technological and economic feasibility. 

Most importantly, under either subpart, 

the state is required to determine RACM 

and RACT measures in light of the 

emissions reductions needed to bring 

the area in question into attainment. In 

other words, the emissions controls 

necessary to bring the area into 

attainment are by definition RACM or 

RACT for such area, and additional 

controls or other potential combinations 

of controls that would not be necessary 

for attainment or to advance attainment 

are not required for purposes of meeting 

this component of an attainment plan 

under either subpart 1 or subpart 4. 

As a result of the DC Circuit Court’s 

decision in NRDC v. EPA, EPA has 

considered whether the control 

measures identified by the state as 

RACM and RACT measures (with the 

exception of certain VOC control 

measures, Regulation 1142 Section 2.0, 

and CAIR for EGUs) would meet the 

requirements of section 189(a)(1)(C). 

Given that the Philadelphia Area has 

attained the 1997 PM2.5 NAAQS through 

the measures already identified in the 

SIP submission, EPA believes that no 

further evaluation is necessary. A core 

principle of the RACM and RACT 

requirement is that, in addition to other 

considerations such as the technological 

feasibility, economic feasibility, and 

scheduling feasibility of potential 

control measures, states and EPA should 

evaluate the need for those control 

measures in order to provide for timely 

attainment of the NAAQS in question. 

In these circumstances, EPA believes 

that the attainment of the NAAQS by 

the projected date in 2010, and the 

continued attainment of the NAAQS in 

the area, establishes that the attainment 

plan contains adequate RACM and 

RACT measures for purposes of the 

1997 PM2.5 NAAQS. There is thus no 

need to consider control of any 

additional sources, or additional 

controls on already controlled sources, 

at this time. Accordingly, the DC Circuit 

Court’s decision in NRDC v. EPA does 

not alter the EPA’s view of the 

approvability of the attainment plan 

with respect to this requirement. 

However, EPA’s review of the 

November 19, 2012 NPR concerning the 

RACM and RACT requirement does 

indicate the need to revise the proposal 

with respect to certain control measures 

included in the list of measures that 

Delaware identified as RACM and RACT 

measures for the 1997 PM2.5 NAAQS in 

the Philadelphia Area. Delaware’s 

attainment plan submission identified a 

number of control measures that are 

specifically intended to reduce only 

VOC emissions. The State noted that 

these measures intended for reduction 

of ozone ‘‘could provide a PM2.5

benefit.’’ 49 Because the State also 

concluded that ‘‘Delaware is not 

regulating VOC emissions as PM2.5

precursors under this SIP,’’ however, 

EPA should not have proposed to 

approve those control measures that 

address only VOC emissions as RACM 

or RACT for the Philadelphia Area 

specifically for purposes of the 1997 

PM2.5 NAAQS. Accordingly, EPA is 

revising the list of measures that it is 

proposing to approve as RACM and 

RACT for the 1997 PM2.5 NAAQS for the 

Philadelphia Area to remove the 

following measures listed in the 

November 19, 2012 NPR: 

• Regulation 1124, Section 11.0, 

Mobile Equipment Repair and 

Refinishing, VOC emission control. 

• Regulation 1124, Section 33.0, 

Solvent Cleaning and Drying, VOC 

emission control. 

• Regulation 1124, Section 36.0, Stage 

II Vapor Recovery, VOC emission 

control. 

• Regulation 1124, Section 46.0, 

Crude Oil Lightering Operations, VOC 

emission control. 

• Regulation 1141, Section 1.0, 

Architectural and Industrial 

Maintenance Coatings, VOC emission 

control. 

• Regulation 1141, Section 2.0, 

Consumer Products, VOC emission 

control. 

• Regulation 1141, Section 3.0, 

Portable Fuel Containers, VOC emission 

control. 

EPA is also proposing not to rely on 

Regulation 1142 Section 2.0 or CAIR for 

EGUs as RACM and RACT in Delaware 

for the 1997 PM2.5 NAAQS but proposes 

to approve as RACM and RACT the 

other control measures, including State 

controls on EGUs, identified in 

Delaware’s SIP Submittal, which were 

previously approved by EPA as part of 

the Delaware SIP (see 40 CFR 52.420(c)) 

or are otherwise Federally enforceable, 

because the Philadelphia Area has 

attained the 1997 PM2.5 NAAQS by the 

attainment date. 

Regulation 1142 Section 2.0 is not 

needed in the Philadelphia Area as 

RACM and RACT and therefore EPA is 

proposing to exclude Regulation 1142 

Section 2.0 from this revised proposed 

approval. Regulation 1142 Section 2.0 

applies only to petroleum refineries. 

There is only one petroleum refinery 

source in Delaware subject to this 

regulation. This source’s NOX emissions 

are restricted by a Federally-enforceable 


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50See 77 FR 69399 at 69406—07. 

51See General Preamble, 57 FR 13539; 

Addendum, 59 FR 42015–17. 

52Merely as examples, EPA noted some potential 

approaches, such as percent implementation of 

control strategies, percent compliance with 

implemented control measures, and adherence to a 

compliance schedule. This list was clearly not 

exclusive and reflected that the purpose of such 

milestones is merely to provide an objective way to 

assess that the area is making progress towards 

attainment by the applicable attainment date. See 

Addendum, 59 FR 42016. 

53EPA notes that at the time of the designations 

and at the time states were developing their 

attainment plans for the 1997 PM2.5 NAAQS, EPA 

and states believed that the implementation of the 

PM2.5 NAAQS should proceed under subpart 1. At 

this juncture, EPA believes that it would be 

inappropriate to consider the statutory SIP 

submission date of subpart 4 to be the operative 

date retroactively. In this instance, it would make 

no difference with respect to the approvability of 

the attainment plan in any event. 

54See Delaware SIP submission, page 93, Table 

7–1. Comparing the 2002 (base year) and 2009 

(attainment year) emissions estimates for New 

Castle County, the information provided by 

Delaware indicated reductions of PM2.5 (415 tpy or 

12.1%,), SO2 (36,102 tpy or 71.9%), and NOX (8,941 

tpy or 29.1%). 

permit condition to 2,525 tons per year. 

The source is separately subject to a 

Federally-enforceable Consent Decree 

with several addendums as discussed 

above which independently limit NOX

emissions and require NOX controls at 

the source, including units which 

would be subject to Regulation 1142 

Section 2.0. Further, as previously 

mentioned, the 2002 base year inventory 

reflects that NOX emissions were 30,784 

tpy in New Castle County such that the 

source’s 2,525 tpy of NOX are relatively 

small in comparison and are already 

subject to Federally-enforceable 

controls. EPA has concluded that the 

source’s NOX emissions are insignificant 

to emissions within Delaware for 

attaining and maintaining the 1997 

PM2.5 NAAQS. Therefore, Regulation 

1142 Section 2.0 is neither required nor 

necessary for expeditious attainment of 

1997 PM2.5 NAAQS, is not reasonably 

needed as a control measure, and is not 

required for RACM and RACT for the 

Philadelphia Area. EPA previously 

discussed in the November 19, 2012 

NPR that it is not relying on CAIR for 

purposes of meeting RACM and RACT 

in Delaware for the 1997 PM2.5 NAAQS 

and is not taking additional comment on 

that issue in this supplemental 

proposal. The RACM and RACT 

measures in Delaware for the 1997 PM2.5

NAAQS will be the remaining measures 

listed in the November 19, 2012 NPR 

with the exception of the control 

measures for VOC emissions identified 

above, Regulation 1142 Section 2.0, and 

CAIR for EGUs.50

F. Reasonable Further Progress 

Another consideration in evaluating 

the State’s attainment plan from the 

perspective of the D.C. Circuit Court’s 

decision and subpart 4 is the approach 

to meeting the reasonable further 

progress (RFP) requirements of the CAA. 

EPA’s remanded 2007 PM2.5

Implementation Rule included 

regulatory provisions for RFP based 

upon the subpart 1 statutory 

requirements of section 172(c)(2) in 40 

CFR 51.1009. The regulations provide 

that if a state’s attainment plan 

demonstrated attainment within five 

years after designation, then no separate 

RFP demonstration is required. In the 

event that a state developed a plan with 

an attainment date projected beyond 

five years from designation, however, 

then the regulations require a specific 

RFP demonstration showing how the 

control measures in the plan will 

achieve reductions at specific milestone 

years of 2009 and 2012, as applicable. 

If a specific RFP plan were required, it 

must show generally linear progress in 

reducing emissions from the base year 

of the plan until the projected 

attainment year. 

Delaware’s April 2008 SIP submission 

for the Philadelphia Area met the 

requirements of the 2007 PM2.5

Implementation Rule, and EPA has 

already proposed to approve it for this 

purpose. In particular, EPA noted that 

the attainment plan was designed to 

provide for attainment of the 1997 PM2.5

NAAQS within five years of designation 

and that attainment had in fact 

occurred. Accordingly, because the 

Philadelphia Area attained the 1997 

PM2.5 NAAQS, EPA proposed to 

determine that the submission met the 

RFP requirement with the control 

measures in the plan and that there was 

no need for additional reductions for 

purposes of meeting any RFP 

requirement beyond that date. 

As a result of the DC Circuit Court’s 

decision in NRDC v. EPA, EPA has 

considered whether Delaware’s SIP 

submission would also meet the RFP 

requirements of subpart 4 in section 

189(c). That section is comparable to the 

requirements of section 172(c)(1), in that 

it requires attainment plans under 

subpart 4 to meet a RFP requirement. 

However, section 189(c) also provides 

that an attainment plan should have 

‘‘quantitative milestones which are to be 

achieved every 3 years until the area is 

redesignated to attainment.’’ EPA’s 

General Preamble and Addendum 

provide guidance interpreting this 

statutory provision and are useful to 

evaluate this requirement of subpart 4.51

In particular, EPA’s guidance 

recommendations with respect to 

section 189(c) include several salient 

features: (1) That the control measures 

comprising the RFP should be 

implemented and in place to meet the 

milestone requirement; (2) that it is 

reasonable for the three year periods for 

milestones to run from the date that the 

attainment plan submission is due; and 

(3) that the precise form quantitative 

milestones should take is not specified 

and they may take whatever form would 

allow progress to be quantified or 

measured adequately.52

EPA believes that Delaware’s SIP 

submission adequately meets these 

requirements for this Area for the 1997 

PM2.5 NAAQS. First, although not 

presented as control measures that 

would achieve reductions by a specified 

three year milestone, the State’s SIP 

submission contained control measures 

that were already implemented and in 

place and thus actually were achieving 

necessary emission reductions to meet 

RFP and milestone requirements at the 

appropriate point in time. 

Second, regardless of whether the 

statutory submission date for the 

attainment plan were that of subpart 1 

or subpart 4, Delaware’s attainment plan 

was achieving emission reductions by 

the date that would have been three 

years from such submission date. In 

other words, regardless of whether the 

SIP submission date could have been 18 

months from the April 2005 date of the 

designation (i.e., October 2006), or 36 

months from such date (i.e., April 2008), 

the attainment plan submitted by 

Delaware in April 2008 included control 

measures that demonstrated attainment 

by 2009 and that were achieving 

emission reductions at that point in 

time (i.e., by a date three years from 

when the attainment plan was due 

under either subpart 1 or subpart 4, or 

in advance of that date).53 Because EPA 

has already determined that the 

Philadelphia Area has attained the 1997 

PM2.5 NAAQS based on ambient data 

from 2007, 2008, and 2009, there would 

have been no requirement for a second 

RFP milestone at a six year point. 

Third, Delaware’s SIP submission 

provided information sufficient to 

quantify the amount of emission 

reductions being achieved. Although 

not presented for purposes of showing 

the amount of reductions for a specific 

three year milestone requirement, the 

State’s SIP submission nonetheless 

quantified the amount of emission 

reduction to be achieved through the 

attainment plan, by pollutant, by 

2009.54 Thus, the attainment plan did 

quantify the emission reductions that 

would occur at a point in time that was 

appropriate for a three year milestone, 


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55The most recent design value for the 

Philadelphia Area, based upon the years 2009– 

2011, is 13.7 mg/m3. See http://www.epa.gov/

airtrends/values.html. 

regardless of what the statutory SIP 

submission date was under either 

subpart 1 or subpart 4. 

Finally, EPA notes that statutory RFP 

and milestone requirements of section 

189(c) are intended to assure reasonable 

progress towards attainment. Once an 

area has already attained the NAAQS, as 

is the case with the Philadelphia Area 

for the 1997 PM2.5 NAAQS, the intended 

purpose for emissions reductions to 

meet an RFP or milestone requirement 

is no longer relevant. EPA thus believes 

that the RFP and milestone 

requirements are functionally moot once 

the area has attained the NAAQS. 

Accordingly, the DC Circuit Court’s 

decision in NRDC v. EPA does not alter 

the EPA’s view of the approvability of 

the attainment plan with respect to the 

RFP and milestone requirements of 

subpart 4. 

G. Contingency Measures 

In its SIP submission, Delaware 

addressed the contingency measure 

requirements for the Philadelphia Area 

and EPA has proposed to approve the 

State’s attainment plan with respect to 

these requirements. The DC Circuit 

Court’s decision in NRDC v. EPA should 

have no impacts on the contingency 

measure requirements for purposes of 

the PM2.5 NAAQS. Section 172(c)(9) 

imposes the contingency measure 

requirement for attainment plans and it 

applies to both subpart 1 and subpart 4. 

The contingency measure requirement 

is not superseded or subsumed by 

subpart 4, and thus there would be no 

change in this requirement as a result of 

the NRDC v. EPA decision. In addition, 

EPA notes that it has already 

determined that the Philadelphia Area 

has attained the 1997 PM2.5 NAAQS and 

thus the continued need for contingency 

measures for failure to meet RFP or to 

attain by the attainment date is moot at 

this juncture. 

H. Attainment Date 

In its SIP submission, Delaware 

provided a demonstration of attainment 

of the 1997 PM2.5 NAAQS in the 

Philadelphia Area by 2010. Based upon 

current ambient air quality monitoring 

data, the Philadelphia Area in fact 

attained the 1997 PM2.5 NAAQS by 2010 

and continues to be in attainment of 

those NAAQS.55

Under either subpart 1 or subpart 4 

requirements, a state is required to 

develop an attainment plan that 

provides for attainment ‘‘as 

expeditiously as practicable.’’ Under 

section 172(a)(2)(A), however, subpart 1 

requirements impose somewhat 

different requirements, providing that 

the area must attain as expeditiously as 

practicable, but not later than 5 years 

from the date of designation, with the 

possibility of extensions of up to 10 

years from the date of designation under 

specified conditions. Under subpart 4, 

however, Congress created different 

attainment date requirements for areas 

classified as ‘‘moderate’’ or ‘‘serious’’ 

nonattainment areas. Most relevant for 

this proposal, however, under Section 

188(c)(1), a state with a moderate 

nonattainment area must provide for 

attainment as expeditiously as 

practicable, but not later than the end of 

the sixth calendar year after the date of 

designation. 

In the case of Delaware’s attainment 

plan for the Philadelphia Area, EPA 

believes that the State has met not only 

the generally applicable attainment date 

requirements of subpart 1, but also met 

the requirements specific to particulate 

matter in subpart 4. EPA’s designations 

for the 1997 PM2.5 NAAQS were 

effective on April 5, 2005. In the 

remanded 2007 PM2.5 Implementation 

Rule, EPA indicated that states should 

develop attainment plans that provided 

for attainment as expeditiously as 

practicable, but not later than 5 years 

after designation, unless an extension of 

the attainment date was warranted. The 

State developed an attainment plan that 

demonstrated attainment of the NAAQS 

by 2010 and the Area in fact attained by 

the targeted date. Under section 

188(c)(1), a state with a moderate area 

could, so long as it showed expeditious 

attainment of the NAAQS, demonstrate 

attainment up until the end of the sixth 

calendar year following the designation 

of the area, i.e., until the end of 2011. 

Thus, the demonstration that Delaware 

made here that the Area would attain 

the 1997 PM2.5 NAAQS by the end of 

2010 would constitute a demonstration 

that the Area attained as expeditiously 

as practicable, but not later than the end 

of 2011 as required by subpart 4. 

Based upon the foregoing reasoning, 

EPA proposes to find that Delaware’s 

attainment plan SIP submission for the 

Philadelphia Area factually and 

functionally meets the attainment date 

requirements for nonattainment areas 

under subpart 4, in addition to the 

requirements under subpart 1. EPA does 

not believe that the D.C. Circuit Court’s 

decision in NRDC v. EPA should have 

any bearing on EPA’s prior proposed 

approval of the attainment date 

supported by the attainment plan 

submission as meeting CAA 

requirements. 

III. Motor Vehicle Emissions Budgets 

EPA’s November 19, 2012 NPR also 

proposed approval of Delaware’s 

MVEBs for the Philadelphia Area (i.e., 

New Castle County in Delaware). 

However, in the TSD associated with 

the November 19, 2012 NPR, MVEBs for 

2012 were inadvertently used instead of 

2009. The correct MVEBs for 2009 are 

shown in Table 1. Delaware’s April 25, 

2012 SIP submittal also included 

Delaware’s 2012 MVEBs which were the 

numbers used in the TSD associated 

with the November 19, 2012 NPR for 

2009. The corrected MVEBs for 2012 are 

shown in Table 2. 

TABLE 1—DELAWARE’S 2009 MOTOR VEHICLE EMISSIONS BUDGET FOR THE 1997 PM2.5 NAAQS ATTAINMENT PLAN IN

TONS PER YEAR

Plan Submittal Milestone Year PM2.5 NOX

Attainment Plan ........................................................................................................................... 2009 257 8,448 

TABLE 2. DELAWARE’S 2012 MOTOR VEHICLE EMISSIONS BUDGET FOR THE 1997 PM2.5 NAAQS ATTAINMENT PLAN IN

TONS PER YEAR

Plan Submittal Out Year PM2.5 NOX

Attainment Plan ........................................................................................................................... 2012 199 6,273 


tkelley on DSK3SPTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Proposed Rules 57585 

In this supplemental proposal, EPA 

proposes to approve Delaware’s MVEBs 

for 2009 (Table 1) and also proposes to 

approve Delaware’s MVEBs for 2012 

(Table 2) which Delaware had requested 

EPA to approve in its April 25, 2012 SIP 

submission. A supplemental TSD, dated 

August 26, 2013, discusses EPA’s 

analysis and support for this proposal 

approving Delaware’s MVEBs for 2009 

and 2012 and is available on line at 

www.regulations.gov, Docket No. EPA– 

R03–OAR–2010–0141. 

Accordingly, EPA continues to 

believe that the MVEBs for 2009 meet 

applicable requirements for such 

budgets for purposes of the 1997 annual 

PM2.5 NAAQS and asserts the MVEBs 

for 2012 likewise meet applicable 

requirements for budgets for 

transportation conformity purposes for 

New Castle County in Delaware. As a 

result of EPA’s finding, New Castle 

County must use the MVEBs from the 

April 25, 2012 SIP submittal for future 

conformity determinations for the 1997 

annual PM2.5 NAAQS. 

IV. Summary of Reproposal 

Based on the foregoing reasons, EPA 

proposes to approve the Delaware 

attainment plan submitted for the 

Philadelphia Area. EPA believes that the 

attainment plan submitted by Delaware 

for the Philadelphia Area, though not 

expressed in terms of subpart 4 

requirements, substantively meets the 

requirements of that subpart for 

purposes of approval under section 

110(k). EPA is also updating 

information related to EPA’s proposed 

approval of the MVEBs for New Castle 

County, Delaware, solely for purposes of 

transportation conformity for this Area. 

EPA solicits comments on this 

supplemental proposal, but only with 

respect to the specific issues raised in 

this rulemaking action. EPA is not 

seeking comment on any other aspect of 

the November 19, 2012 NPR as those 

issues have already been adequately 

addressed. The purpose of this 

supplemental proposal is limited to 

review of the attainment plan submitted 

by Delaware for the Philadelphia Area 

in light of the D.C. Circuit Court’s 

decision in NRDC v. EPA, EPA’s further 

evaluation of Delaware’s submitted 

attainment plan, and EPA’s desire for 

public input into how it should proceed 

in light of the NRDC v. EPA decision 

when acting on the pending attainment 

plan for this Area for the 1997 PM2.5

NAAQS. 

V. 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 

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 supplemental 

proposed rule pertaining to the 

Delaware 1997 annual PM2.5 attainment 

plan for the Philadelphia Area, 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, Nitrogen dioxide, 

Ozone, Particulate matter, Reporting 

and recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

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

Dated: September 12, 2013. 

W.C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2013–22829 Filed 9–18–13; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Parts 380, 383, and 384 

[FMCSA–2007–27748] 

RIN 2126–AB06 

Minimum Training Requirements for 

Entry-Level Commercial Motor Vehicle 

Operators 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice of withdrawal. 

SUMMARY: FMCSA withdraws its 

December 26, 2007, notice of proposed 

rulemaking (NPRM) that proposed new 

entry-level driver training standards for 

individuals applying for a commercial 

driver’s license (CDL) to operate 

commercial motor vehicles (CMVs) in 

interstate commerce. The Agency 

withdraws the 2007 proposal because 

commenters to the NPRM, and 

participants in the Agency’s public 

listening sessions in 2013, raised 

substantive issues which have led the 

Agency to conclude that it would be 

inappropriate to move forward with a 

final rule based on the proposal. In 

addition, since the NPRM was 

published, FMCSA received statutory 

direction on the issue of entry level 

driver training (ELDT) from Congress 

via the Moving Ahead for Progress in 

the 21st Century Act (MAP–21) 

reauthorization legislation. Finally, the 

Agency tasked its Motor Carrier Safety 

Advisory Committee (MCSAC) to 

provide ideas the Agency should 

consider in implementing the MAP–21 

requirements. In consideration of the 

above, the Agency has concluded that a 

new rulemaking should be initiated in 

lieu of completing the 2007 rulemaking. 

DATES: The NPRM ‘‘Minimum Training 

Requirements for Entry-Level 

Commercial Motor Vehicle Operators,’’ 

RIN 2126–AB06, published on 


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