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Air Plan Approval; Delaware; Motor Vehicle Inspection and Maintenance Program Publication: Federal Register Agency: Environmental Protection Agency Byline: Adam Ortiz Date: 15 August 2024 Subjects: American Government  , The Environment
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[Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Proposed Rules]
[Pages 66295-66305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18173]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2024-0016; FRL-12094-01-R3]
Air Plan Approval; Delaware; Motor Vehicle Inspection and
Maintenance Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve three State implementation plan (SIP) revisions submitted by
the State of Delaware to amend Delaware's motor vehicle emissions
inspection and maintenance (I/M) programs, Statewide. Delaware has made
several State regulatory amendments to its prior SIP-approved I/M
program regulations, to both improve the program and to harmonize its
two State I/M program regulations so that the entire State is subject
to similar I/M requirements. These SIP revisions apply to both the
federally mandated enhanced I/M program applicable to Kent and New
Castle Counties that comprise Delaware's portion of the Philadelphia-
Wilmington-Atlantic City, PA-NJ-MD-DE ozone nonattainment area, and
also to the Sussex County program, where I/M is not federally required
but where Delaware has a prior approved, SIP strengthening I/M program
(similar in design to a basic I/M program). The amendments to
Delaware's I/M programs include: a change in program coverage to expand
exemptions for new vehicles to seven years; addition of vehicle on-
board diagnostic (OBD) testing requirements in the Sussex County
program; expanded vehicle coverage to include vehicles weighing between
8,501 to 14,000 pounds gross vehicle weight rating (GVWR), for those
vehicles model year 2008-and-newer; harmonization of I/M test
requirements applicable to older vehicles to include curb idle exhaust
and gas cap pressure tests for vehicles 1995-and-older (replacing
existing two-speed idle tests on those vehicles previously performed in
Kent and New Castle Counties); phase-in of increased minimum repair
cost thresholds for obtaining a repair waiver in Sussex County; and the
[[Page 66296]]
addition of a Statewide prohibition on tampering-related repairs in
qualifying for an emissions repair waiver. EPA's proposed action is in
compliance with the Clean Air Act (CAA) because these SIP revisions
comply with applicable requirements of the CAA and EPA regulations, and
because this proposed revision of the SIP will not interfere with
attainment or maintenance of any national ambient air quality standards
(NAAQS). The intended effect of this action is to update the approved
Delaware SIP to maintain consistency between the State-adopted I/M
program rules and the federally approved SIP.
DATES: Written comments must be received on or before September 16,
2024.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2024-0016 at www.regulations.gov, or via email to
goold.megan@epa.gov. For comments submitted at Regulations.gov, follow
the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be confidential business information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the FOR FURTHER INFORMATION CONTACT section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Brian Rehn, Planning & Implementation
Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection
Agency, Region III, 1600 John F. Kennedy Boulevard, Philadelphia,
Pennsylvania 19103. The telephone number is (215) 814-2176. Mr. Rehn
can also be reached via electronic mail at rehn.brian@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Clean Air Act Requirements for I/M Programs
B. Background on the History of the Ozone NAAQS and Resulting
Delaware Area Ozone Nonattainment Designations and I/M Program
Requirements
1. Delaware Nonattainment Area Designations and I/M Program
Requirements Under the 1979 1-Hour Ozone NAAQS
2. Delaware Nonattainment Area Designations and I/M Program
Requirements Under the 1997 8-Hour Ozone NAAQS
3. Delaware Nonattainment Area Designations and I/M Program
Requirements Under the 2008 8-Hour Ozone NAAQS
4. Delaware Nonattainment Area Designations and I/M Program
Requirements Under the 2015 8-Hour Ozone NAAQS
II. Summary of Delaware's March 2023 I/M SIP Revisions and EPA's
Analysis
A. Overview of Delaware's March 13, 2023 SIP Submissions
B. Review of Delaware's March 2023 SIP Revisions for Compliance
With EPA Requirements
1. Compliance With EPA's Enhanced I/M Performance Standard
Requirements
2. Demonstrating Noninterference of the Revised SIP Under CAA
Section 110(l) With Attainment, Reasonable Further Progress, or Any
Other CAA Applicable Requirement
C. EPA's Evaluation of Delaware's SIP Revisions
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
SUPPLEMENTARY INFORMATION: On March 13, 2023, the Delaware Department
of Natural Resources and Environmental Control (DNREC) submitted three
SIP revisions to EPA to amend its prior SIP-approved motor vehicle
inspection and maintenance (I/M) programs applicable to all counties in
Delaware.
I. Background
This section provides background for EPA's proposed actions on
Delaware's three March 2023 I/M program-related SIP revisions. To
provide context, herein we also provide background on the ozone
national ambient air quality standard (NAAQS, or ``standard'') and on
Delaware area designations under the ozone NAAQS, which are the pretext
for the Federal mandate for CAA I/M program requirements. Finally, we
discuss herein EPA requirements for I/M programs for affected ozone
nonattainment areas.
A. Clean Air Act Requirements for I/M Programs
As a control measure to reduce air pollutant emissions from in-use
motor vehicles, the CAA requires states with areas designated as
moderate, serious, severe, or extreme ozone nonattainment areas, or
those lying within an ozone transport region (OTR) (and having a
population exceeding designated population thresholds), to establish a
motor vehicle I/M program, to inspect motor vehicles' emissions and, if
necessary, to require maintenance or repairs to reduce in-use emissions
from vehicles that fail such testing.\1\ This emissions testing ensures
that vehicles are well-maintained and operate as designed and that they
do not exceed established vehicle pollutant limits.
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\1\ See CAA sections 182(b)(4), (c)(3).
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Under the CAA, a ``basic'' I/M program is required for any area
classified as a moderate ozone nonattainment area and having a 1990
Census-defined urbanized area with a population exceeding 200,000
persons.\2\ A more stringent, ``enhanced'' I/M program is required in
the Census-defined urbanized area of any ozone nonattainment area
classified as serious or worse, where the 1980 Census-defined urbanized
area population exceeds 200,000.\3\ Additionally, in order to prevent
transport of air pollution, states or areas within a CAA-defined OTR
shall implement ``enhanced'' I/M within any metropolitan statistical
area (MSA) where the 1990 population exceeds 100,000 persons--
regardless of the area's nonattainment designation or
classification.\4\
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\2\ See CAA 182(b)(4) and 40 CFR 51.350(a)(4) and (6).
\3\ See CAA 182(c)(3) and 40 CFR 51.350(a)(2) and (7).
\4\ See CAA 184(b)(1) and 40 CFR 51.350(a)(1).
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B. Background on the History of the Ozone NAAQS and Resulting Delaware
Area Ozone Nonattainment Designations and I/M Program Requirements
In 1970, Congress enacted the CAA and authorized the EPA to
establish NAAQS for criteria pollutants shown to threaten human health,
welfare, and the environment--including ozone. In January 1983,
Delaware implemented its first I/M program under Title 7 Natural
Resources & Environmental Control of the Delaware Administrative Code,
Regulation 26 (7 DE Admin. Code 26) applicable to New Castle County, as
a control measure in its SIP. Delaware later recodified this regulatory
chapter to Regulation 1126.\5\
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\5\ Delaware's Regulation 1126 applies to the Sussex County SIP-
strengthening I/M program, which is not required by the CAA, but is
substantially similar to an EPA-defined basic I/M program--
strengthening the SIP and harmonizing I/M testing across Delaware.
Regulation 1131 (then Regulation 31) is a CAA-required, low-enhanced
I/M program applicable to the New Castle and Kent Counties,
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[[Page 66297]]
1. Delaware Nonattainment Area Designation and I/M Program Requirements
Under the 1979 1-Hour Ozone NAAQS
In 1990, Congress amended the CAA, by adding specific requirements
for areas in nonattainment of a NAAQS. In 1991, EPA classified the
Philadelphia-Wilmington-Trenton, PA-DE-NJ area as severe ozone
nonattainment for the 1979 1-hour ozone NAAQS, triggering a requirement
for Delaware to establish an enhanced I/M program (as discussed in the
section below summarizing I/M requirements) for its portion of that
multi-State nonattainment area--comprised of Kent and New Castle
Counties.\6\ As the Wilmington, Delaware, area also lies in the
Northeast OTR, as defined under CAA section 184, Delaware's portion of
the Census-defined Philadelphia-Wilmington-Trenton metropolitan
statistical area (MSA) having population exceeding 100,000 persons is
also subject to enhanced I/M (i.e., Kent and New Castle Counties).
Sussex County, Delaware, was not part of the Philadelphia-Wilmington-
Trenton nonattainment area (and thus not subject to enhanced I/M), and
neither did it meet the MSA/population threshold criteria to subject
the area to enhanced I/M under CAA section 184 requirements applicable
to ozone transport areas.
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\6\ On November 6, 1991 (56 FR 56994), EPA designated and
classified the Philadelphia-Wilmington-Atlantic City consolidated
metropolitan area (CMSA) as Severe-15 ozone nonattainment. This
includes Kent and New Castle Counties in the Wilmington, Delaware,
portion of that CMSA. CAA section 107(d)(1)(C) provides that each
area designated nonattainment, attainment, or unclassifiable for the
ozone NAAQS immediately before the date of enactment of the CAA ``is
designated, by operation of law,'' as a nonattainment, attainment,
or unclassifiable area, respectively, and CAA section 107(d)(2)(A)
required EPA to publish a Federal Register notification with respect
to this designation, which EPA did with the November 6, 1991
document effective November 15, 1990.
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In 1995 and 1998, Delaware submitted several SIP revisions to EPA,
requesting approval of its enhanced I/M SIP revision to satisfy the
1990 CAA requirements for an enhanced I/M program for the Delaware
portion of the Philadelphia-Wilmington-Trenton severe 1-hour ozone
nonattainment area. Delaware availed itself of flexibility in EPA's I/M
rule at 40 Code of Federal Regulations (CFR) part 51, subpart S, that
allows an enhanced I/M subject area to adopt an enhanced I/M program
that meets an alternate ``low enhanced'' I/M performance standard if
the area: (1) has an approved SIP pursuant to CAA requirements for
Reasonable Further Progress (for the period from 1990-1996); (2) does
not have a disapproved plan for Reasonable Further Progress for the
period after 1996; and (3) does not have a disapproved plan for
attainment of the air quality standards for ozone.\7\ EPA refers to
this program hereafter as the ``low enhanced'' I/M program. Delaware's
low enhanced I/M program (applicable to the Kent and New Castle
Counties of the Wilmington area) was codified at Delaware Code Title 7,
Regulation 31.
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\7\ See 40 CFR 51.351(g).
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I/M was not required by the 1990 CAA amendments in Sussex County,
as it was designated marginal nonattainment and the Seaford area was
not large enough to trigger the MSA-based CAA population threshold for
OTR areas or ozone nonattainment-related CAA I/M applicability
requirements.\8\ However, Delaware opted to enact I/M in the Sussex
County area and submitted to EPA a SIP-strengthening I/M program for
Sussex County as part of its 1995 and 1998 I/M SIP submissions to EPA.
This SIP-strengthening program, similar in design to a basic I/M
program, was codified under Title 7, Regulation 26 of the Delaware
Code. The purpose of this Sussex County program was to maintain a
Statewide I/M program and to provide additional emission benefits for
the neighboring Philadelphia-Wilmington-Trenton 1-hour ozone
nonattainment area.
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\8\ Section 107(d)(1)(C) provides that each ozone and CO area
designated nonattainment, attainment, or unclassifiable immediately
before the date of enactment of the CAAA was ``designated, by
operation of law,'' as a nonattainment, attainment, or
unclassifiable area, respectively. Section 107(d)(2)(A) requires EPA
to publish a Federal Register notification with respect to this
designation, as well as the area's classification and boundary. EPA
published these designations for the 1979 1-hr ozone NAAQS in the
November 6, 1991 (56 FR 56694) Federal Register--listing Sussex
County, Delaware as a marginal nonattainment area.
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Through a series of actions culminating in a final approval on
September 30, 1999, EPA approved several 1995 and 1998 Delaware SIP
revisions submitted to satisfy applicable 1990 CAA I/M requirements.\9\
EPA's September 1999 final rule approved Delaware's new Regulation 31
``low enhanced'' I/M program applicable to Kent and New Castle
Counties, while retaining Regulation 26 to apply a ``SIP
strengthening'' I/M program (akin to ``basic'' I/M) in Sussex County.
Additional information on EPA's prior approval of Delaware's enhanced
I/M program in the Delaware portion of the Philadelphia-Wilmington-
Trenton ozone nonattainment area (as well as the SIP-strengthening I/M
program for Sussex County) can be found in EPA's final approval actions
taken upon those SIP revisions, as referenced in footnote 7 of this
action.
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\9\ On May 19, 1997 (62 FR 27195), EPA conditionally approved
Delaware's ``low enhanced'' inspection and maintenance program,
submitted by DNREC on February 17, 1995 and supplemented on November
30, 1995. On September 30, 1999 (64 FR 52657), EPA converted its
conditional approval of 1995 and 1998 Delaware's I/M SIP to full
approval, on the basis of supplemental SIP revisions submitted by
DNREC on June 16, 1998 and May 24, 1999. In an August 10, 2010 final
rule (75 FR 48566), EPA approved administrative, non-substantive
edits made by Delaware to some of rules codified under title 7,
resulting in recodification of the Sussex County I/M Regulation 26
and its retitling to Regulation 1126.
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2. Delaware Nonattainment Area Designations and I/M Program
Requirements Under the 1997 8-Hour Ozone NAAQS
In July 1997, EPA revised the ozone NAAQS, replacing the 1979 1-
hour primary standard with a more stringent, 8-hour standard.\10\ EPA
designated the entirety of Delaware as Moderate nonattainment under the
1997 8-hour ozone NAAQS as part of the Philadelphia-Wilmington-Atlantic
City, PA-NJ-MD-DE area.\11\ This 1997 Moderate ozone NAAQS
classification subjected the area to basic I/M, for those areas also
meeting the CAA urbanized area population threshold. The inclusion of
Sussex County in the expanded nonattainment area boundary did not
result in the expansion of the I/M program for the Philadelphia-
Wilmington-Atlantic City nonattainment area, as Sussex County was not
part of the census defined urbanized area in 1990 and thus did not
trigger the requirement for a basic I/M program in Sussex County under
the applicability thresholds under EPA's I/M rule.\12\ Rather than be
subject to basic I/M, the remainder of the Philadelphia-
[[Page 66298]]
Wilmington-Atlantic City 1997 ozone NAAQS nonattainment area (including
Kent and New Castle Counties in Delaware) remained subject to more
stringent enhanced I/M requirements (under the CAA section 184 OTR I/M
provision and the area's continued Severe nonattainment classification
under the 1979 1-hour ozone NAAQS).
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\10\ On July 18, 1997 (62 FR 38856), EPA revised the ozone
NAAQS, replacing the 1979 primary 1-hour primary standard with an 8-
hour standard, based on an ambient air monitoring site's 3-year
average of the annual third-highest daily maximum 8-hour average
ozone concentration is less than or equal to 0.08 ppm.
\11\ Original 8-Hour Ozone (1997) areas were designated July 15,
2004. On June 8, 2007, the United States Court of Appeals vacated
the subpart 1 portion of the Phase 1 Rule. The Former subpart 1
nonattainment areas were classified under subpart 2 on May 14, 2012
(77 FR 28424), effective June 13, 2012.
\12\ See 40 CFR 51.350(a)(4) and (6). Any area classified as
moderate ozone nonattainment, and not required to implement enhanced
I/M under paragraph (a)(1) of the section, shall implement basic I/M
in any 1990 Census-defined urbanized area with a population of
200,000 or more. Sussex County's population did not exceed the
urbanized area population threshold for a basic I/M program, the
county continued not to be subject to I/M and instead remained an
optional, SIP-strengthening program, not bound by CAA I/M
requirements.
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The Philadelphia-Wilmington-Atlantic City 1997 ozone nonattainment
area was eventually granted an attainment date extension and later
determined to have attained the 1997 standard by its statutory
attainment date.\13\ However, the Philadelphia-Wilmington-Atlantic City
area was never redesignated to attainment of the 1997 NAAQS, and as
such remained subject to I/M requirements under that NAAQS. In March
2015, EPA revoked the 1997 ozone NAAQS in favor of a more stringent
ozone NAAQS issued in March 2008. However, due to anti-backsliding
requirements, the enhanced I/M program requirement in Kent and New
Castle Counties remained in place for the revoked NAAQS.\14\
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\13\ On January 21, 2011 (76 FR 3840), EPA granted the
Philadelphia-Wilmington-Atlantic City area a 1-year extension of its
1997 ozone attainment date (to June 2011). On March 26, 2012 (77 FR
17341), EPA determined that the Philadelphia-Wilmington-Atlantic
City area attained the 1997 ozone NAAQS by the applicable attainment
date.
\14\ EPA revoked the 1997 ozone NAAQS (March 6, 2015; 80
FR12264), following promulgation of a more stringent 2008 ozone
NAAQS on March 12, 2008.
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3. Delaware Nonattainment Area Designations and I/M Program
Requirements Under the 2008 8-Hour Ozone NAAQS
On March 12, 2008, EPA revised the 8-hour ozone NAAQS.\15\ EPA
designated the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE (with
Delaware's portion of the nonattainment area limited to New Castle
County) and Seaford, Delaware as two, separate marginal ozone
nonattainment areas for the 2008 8-hour ozone NAAQS on April 30, 2012
(effective July 20, 2012).\16\ This marginal designation did not add
new I/M applicability requirements, allowing the existing SIP-approved
I/M program to remain in place unchanged. The Delaware portion of the
Philadelphia-Wilmington-Atlantic City area (New Castle and Kent
Counties) continued to be subject to enhanced I/M requirements under
anti-backsliding provisions applicable to the prior 1979 ozone NAAQS
and under the OTR requirements of CAA section 184.
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\15\ 73 FR 16436 (March 27, 2008).
\16\ 77 FR 30088 (May 21, 2021). Note that Kent County, Delaware
was not included in either the Philadelphia-Wilmington-Atlantic City
or the Seaford ozone nonattainment areas for the 2008 ozone NAAQS,
but Kent County was instead designated by EPA as unclassifiable/
attainment. Under EPA's anti-backsliding rules, Kent and New Castle
County continued to remain subject to enhanced I/M under prior NAAQS
and under CAA section 184 OTR I/M program requirements.
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On May 4, 2016, EPA issued the Philadelphia-Wilmington-Atlantic
City area a 1-year attainment date extension to July 20, 2016, and
determined that the Seaford nonattainment area attained the 2008 ozone
NAAQS by the attainment date.\17\ On November 2, 2017, EPA determined
that the Philadelphia-Wilmington-Atlantic City area attained the 2008
NAAQS by the July 2016 attainment date.\18\ Neither area has been
subsequently redesignated to attainment for the 2008 ozone NAAQS under
section 107(d)(3) of the CAA. While the Seaford area did not exceed the
classification/population thresholds to be subject to I/M, the area
continued to operate the prior SIP-approved program for anti-
backsliding purposes.
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\17\ 81 FR 26697.
\18\ 82 FR 50814.
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4. Delaware Nonattainment Area Designations and I/M Program
Requirements Under the 2015 8-Hour Ozone NAAQS
On October 1, 2015, EPA again revised the 8-hour ozone NAAQS.\19\
EPA designated the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE
area (with Delaware's portion of the nonattainment area limited to New
Castle County) as a marginal ozone nonattainment area for the 2015 8-
hour ozone NAAQS on April 30, 2018 (effective August 3, 2018).\20\ As a
result, under EPA's initial designations for the 2015 NAAQS, Delaware
faced no new I/M obligation, but Kent and New Castle Counties continued
to be subject to enhanced I/M requirements under the anti-backsliding
requirements of the prior 1979 ozone NAAQS and under the OTR
requirements of CAA section 184.
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\19\ See 80 FR 65292 (October 26, 2015).
\20\ See 83 FR 25776 (June 4, 2018). For the 2015 ozone NAAQS,
the Delaware portion of the Philadelphia-Wilmington-Atlantic City
2015 ozone nonattainment area includes Kent and New Castle Counties
in Delaware. In the same action, EPA designated the Seaford area
(Sussex County) as attainment for the 2015 ozone NAAQS.
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In October 2022, EPA determined that the Philadelphia-Wilmington-
Atlantic City 2015 ozone nonattainment area failed to attain by its
attainment date (August 3, 2021) and reclassified the area from
marginal to moderate nonattainment.\21\ EPA established in that failure
to attain/reclassification determination, that a basic vehicle I/M SIP
is required (due by January 1, 2023) for urbanized Moderate areas under
the 2015 ozone NAAQS. Existing I/M program areas classified as moderate
or worse nonattainment (including areas with a basic or enhanced I/M
program implemented under a prior NAAQS) were required to submit a
certification SIP demonstrating that the existing program continues to
meet applicable CAA requirements for the new ozone NAAQS
classification.\22\ Delaware submitted a SIP revision on March 4, 2024,
for the purpose of demonstrating that the existing enhanced I/M SIP for
the Delaware portion of the Philadelphia-Wilmington-Atlantic City area
meets all applicable requirements for a basic I/M program required by
the 2015 ozone NAAQS. However, that SIP revision relies upon updates to
the enhanced I/M SIP submitted to EPA as SIP revisions in March 2023
(that we propose to approve as part of this action). So, EPA intends to
defer action on the March 4, 2024 I/M certification SIP submission
until after we finalize the pre-requisite action on Delaware's March
2023 enhanced I/M update SIP submissions.
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\21\ See 87 FR 60897 (October 7, 2022).
\22\ Id. See Section II.E of the October 7, 2022 final rule (87
FR 60897, 60906) and the April 13, 2022 proposal (87 FR 21842).
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II. Summary of Delaware's March 2023 I/M SIP Revisions and EPA's
Analysis
A. Overview of Delaware's March 13, 2023 SIP Submissions
Delaware submitted three SIP revisions on March 13, 2023, serving
to update the State's existing, SIP-approved I/M programs. These March
2023 SIP revisions pertain to both of Delaware's two I/M programs--the
enhanced I/M program applicable to Kent and New Castle Counties and the
SIP-strengthening (akin to basic) I/M program in Sussex County. The
first of these SIP revisions is an amendment to 7 DE Admin. Code 1131,
pertaining to the low enhanced I/M program operated in Kent and New
Castle Counties (referred to hereafter as the ``Wilmington I/M
program,'' the ``low enhanced I/M program,'' or the ``Regulation 1131''
I/M program).
The second of the March 2023 SIP submittals amends 7 DE Admin. Code
1126 pertaining to the SIP-strengthening I/M program applicable to
Sussex County (referred to as the ``Sussex County'' or ``Regulation
1126'' program). DNREC revised Regulations 1126 and 1131 to optimize
the I/M program and to harmonize the requirements of the two programs,
as well as to align Delaware's regulations with a change in State law
(i.e., House Bill 246 of the
[[Page 66299]]
2017 Delaware General Assembly legislative session), which altered
subject vehicle applicability of the program by changing the exemption
for new vehicles from five to seven years.\23\
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\23\ See 21 Delaware Code 2143.
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Delaware's third SIP submittal of March 2023 serves to correct an
error made by the State in a 2012 State regulatory action, which
inadvertently incorporated Delaware's Plan for Implementation (PFI) for
7 DE Admin Code 1126 and 7 DE Admin. Code 1131 into Regulation 31.
Delaware never requested that EPA incorporate the 2012 version of
Regulation 1131 into the SIP, so that error did not translate to the
SIP. However, Delaware's March 2023 SIP revision requests that EPA
incorporate the now non-regulatory Plan for Implementation as
additional supporting materials for inclusion into the SIP, for the
purpose of meeting Federal I/M requirements at 40 CFR part 51, subpart
S, not addressed by the revised Regulations 1126 and 1131.
These regulatory updates to Regulation 1131 serve to update the
rules to reflect changes made by Delaware to revise its low-enhanced I/
M program as described (i.e., to increase new vehicle I/M program
exemptions to seven years, to expand vehicle coverage to include
medium-duty vehicles; to change idle testing requirements to curb idle
testing, etc.). Additionally, the version of Regulation 1131 being
incorporated by reference updates the prior SIP-approved Regulation 31
program to reflect a State regulatory format change made since EPA last
approved the SIP, essentially recodifying that program. The proposed
revised Regulation 1131 being incorporated by reference includes the
State-adopted January 1, 2023 revised Regulation 1131 (State effective
January 11, 2023). The January 1, 2023 sections of Regulation 1131
being adopted include sections 1.0, 2.0 (including 2.1 through 2.6),
3.0 (including revised definitions), 4.0 (including 4.1 through 4.5),
5.0 (including 5.1 through 5.4), 6.0 (including 6.1), 7.0 (including
7.1 and 7.2), 8.0 (including 8.1 through 8.4), and 9.0 (including 9.1
through 9.3). Sections 10 through 13 of Regulation 31 are being removed
from the SIP, as are Appendices 1(d), 3(a)(7), 3(c)(2), 4(a), 5(a),
5(f), 6(a), 6(a)(5), 6(a)(8), 6(a)(9), 7(a), 8(a), and 9(a)--as revised
by the State on May 15, 2012 (with the State effective date of June 11,
2012).
In accordance with requirements of 1 CFR 51.5, EPA is proposing to
incorporate by reference Delaware's revised Title 7, Regulation 1126
entitled ``Motor Vehicle Emissions Inspection Program--Sussex County,''
as published as a final rule in the Delaware Register on January 1,
2023 (effective January 11, 2023). The amended sections of Regulation
1126 being incorporated by reference include Sections 1.0 (including
1.1 through 1.6), 2.0 (including revised definitions), 4.0 (including
4.1 through 4.5), 5.0 (including 5.1 through 5.4), 6.0 (including 6.1),
7.0 (including 7.1 and 7.2), 8.0 (including 8.1 through 8.4), and 9.0
(including 9.1 through 9.3). Section 3.0 of Regulation 1126 and
Technical Memorandum 1 and 2 to Regulation 1126 are removed and
reserved, based on the January 1, 2023 State rule revisions.
In an August 11, 2010 action, EPA approved into the SIP Delaware's
administrative recodification of 7 DE Code 1126.\24\ Delaware
subsequently finalized a State administrative recodification of 7 DE
Admin Code 1131 but did not then submit that administrative change as a
SIP revision to EPA. As a result, EPA did not at that time approve into
the SIP the State's recodification of Regulation 1131. Delaware's March
2023 SIP revision contains a January 2023 State regulation amendment to
Regulation 1131, which is based on a prior 2012 revision of that rule
that Delaware had not previously requested be approved as part of the
SIP. The relevant regulation in the SIP was most recently approved by
EPA in October 2001, when it was still Regulation 31 in the Delaware
Code. The 2023 SIP revision serves to incorporate by reference the 2023
version of the State rule revision into the Delaware SIP. The effect of
doing so will be to incorporate the latest 2023 State rule amendments,
as well as the 2012 State amendments. The effect of approving the PFI
SIP would be to remove from Regulations 1126 and 1131 some oversight
and administrative provisions formerly contained in regulatory
addendums and appendices to Regulation 1126 and 1131 and instead to
include them in the SIP as additional State supporting materials.
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\24\ See 75 FR 48566.
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B. Review of Delaware's March 2023 SIP Revisions for Compliance With
EPA Requirements
1. Compliance With EPA's Enhanced I/M Performance Standard Requirements
[[Page 66300]]
As part of its rule specifying I/M requirements, codified at 40 CFR
part 51, subpart S, EPA established a ``model'' program for areas
required to implement either basic or enhanced I/M programs.\25\ A
state compares its own I/M program design choice with EPA's applicable
model program design. The EPA model program serves as a benchmark, or
``performance standard,'' the emissions results of which serve as means
to compare the resultant emission benefits. The performance standard
provides a gauge by which the state and EPA can evaluate the
effectiveness of each state's basic or enhanced I/M program, from the
perspective of ozone precursor emissions reductions. As such, states
are required to demonstrate that their enhanced or basic I/M programs
achieve applicable areawide emission levels that are equal to, or lower
than, those which would be realized by the implementation of EPA's
respective model I/M program.
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\25\ See 40 CFR 51.351 and 51.352.
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With respect to the enhanced I/M performance standard, EPA
originally designed a single enhanced performance standard option under
the 1992 version of its I/M requirements rule.\26\ However, on
September 18, 1995, EPA promulgated the ``low enhanced'' performance
standard described in the Background portion of this action.\27\ The
low enhanced performance standard is a less stringent enhanced I/M
performance standard established to avail areas having an approved SIP
for Reasonable Further Progress (RFP) for 1996, and that do not have a
disapproved post-1996 RFP plan, or a disapproved plan for attainment of
the ozone NAAQS. Delaware has demonstrated compliance with CAA
requirements for RFP and attainment planning for the Delaware portion
of the Philadelphia-Wilmington-Atlantic City area--and thus has used
the ``low enhanced'' performance standard in its prior approved I/M SIP
and can continue to do so for updates to its currently approved I/M
SIP. The revised performance standard modeling included as part of
Delaware's 2023 SIP submittal is designed to demonstrate compliance
with this ``low enhanced'' performance standard.
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\26\ See original version of EPA's I/M Requirements Rule (note
this version has since been superseded by multiple rule updates), at
57 FR 52950 (November 5, 1992). The enhanced performance standard is
specified at 40 CFR 51.351 (57 FR 52950, 52988).
\27\ See ``EPA's Inspection and Maintenance Flexibility
Amendments'' Final Rule, at 60 FR 48029 (September 18, 1995).
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States seeking to amend an I/M program for an area with an existing
CAA-mandated, SIP-approved I/M program (e.g., exemption of additional
model years of vehicles from their program) must demonstrate that that
the program continues to meet the applicable performance standard. This
might entail upgrading the program in some other way (e.g., by
increasing vehicle type or weight class coverage subject to the
program) in order to demonstrate the applicable performance standard is
still being met. In addition to the performance standard, per CAA
section 110(l) the revised program must be shown not to interfere with
an area's ability to attain the NAAQS in a timely manner.\28\
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\28\ See EPA's Performance Standard Modeling for New and
Existing Vehicle Inspection and Maintenance (I/M) Programs Using the
MOVES Mobile Source Emissions Model [EPA-420-B-22-034 October 2022],
p. 4.
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Table 1, in this document, compares EPA's low enhanced I/M
performance standard with Delaware's latest program for the March 2023
SIP revisions amending the Wilmington area low enhanced I/M program
SIP.
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\29\ See 40 CFR 51.351(g) for the Alternate Low Enhanced
Performance Standard.
\30\ Delaware is newly extending applicability to include 1996
MDVs (up to 14,000 lbs GVWR), subject to OBD testing, with 1970 and
newer MDVs subject to curb idle tailpipe testing. Delaware exempts
all pre-1996 model year, diesel-powered vehicles from the I/M
program.
\31\ Except for OBDII equipped vehicles, which instead receive
an OBDII check in lieu of idle testing. EPA's position on the use of
OBD testing, in lieu of idle tailpipe testing, is detailed in EPA's
Amendments to I/M Program Requirements Incorporating OBD Checks
final rule (66 FR 18156; April 5, 2001).
\32\ See appendix B to 40 CFR part 51, subpart S.
\33\ EPA's MOVES model no longer models the impacts of all
enhanced I/M performance standard parameters listed under EPA's I/M
requirements rule, at 40 CFR 51.351, including certain emission
control device inspections and pre-1981 test stringency rate.
\34\ Delaware is newly extending applicability to include MDVs
(up to 14,000 lbs GVWR), subject to OBD testing.
\35\ Excluding exempted new vehicles, up to 7 model years old.
\36\ EPA's enhanced performance standard requirements at 40 CFR
51.351(g) require that the state's program be shown to obtain the
same or lower emission levels (relevant to the subject NAAQS) as the
model program by January 1, 2002, to within 0.02 gpm,
through their attainment deadline for the applicable NAAQS.
\37\ For revisions to a SIP-approved I/M program, the
performance standard modeling analysis year is the evaluation date
is the date of implementation of the revised I/M program. See EPA's
Performance Standard Modeling for New and Existing Vehicle
Inspection and Maintenance (I/M) Programs Using the MOVES Mobile
Source Emissions Model [EPA-420-B-22-034 October 2022], p. 10. For
revisions to an I/M program currently approved into the SIP, the PSM
analysis year would be the evaluation date used in the approved SIP
or the date of implementation of the revised I/M program, whichever
is later.
Table 1--Low Enhanced Performance Standard Comparison for the Delaware portion of the Philadelphia-Wilmington-
Atlantic City Ozone Nonattainment Area (Kent and New Castle Counties) \29\
----------------------------------------------------------------------------------------------------------------
I/M program element EPA low enhanced performance standard Delaware's low enhanced I/M program
----------------------------------------------------------------------------------------------------------------
Network Type................ Centralized............................. Centralized.
Program Start Date.......... Existing programs--1983; Newly subject New Castle County--1995; Kent County--
areas--1995. 1991.
Test Frequency.............. Annual.................................. Biennial.
Model Year Coverage......... 1968 and newer.......................... 1968 and newer (7 newest model years
exempt).
Vehicle Type Coverage....... Light-duty gasoline vehicles (LDGVs) and 1968 and newer LDGVs and LDGTs, up to
light-duty gasoline trucks (LDGTs), up 8,500 lbs GVWR; and 1970 and newer
to 8,500 lbs gross vehicle weight Medium Duty Gasoline Vehicles (MDVs),
rating (GVWR). up to 14,000 lbs GVWR. \30\
Exhaust Emission Test \31\.. Idle Test, (1968-1995 model years) \32\. Curb Idle test (1968-1995 LDVs and LDTs;
and 1970-1995).
Emission Standards.......... 1981 and newer--1.2% CO. 1981 and newer-- 1981 and newer--1.2% CO. 1981 and newer--
220 ppm HC. 220 ppm HC.
Emission Control Device 1968-71 PCV valve; 1972 and newer EGR 1981 and newer Catalytic converter.
Visual Inspection\33\. valve.
On-board Diagnostics II 1996 and newer LDGVs and LDGTs.......... 1996 and newer LDGVs and LDGTs, up to
(OBDII) Inspection. 8,500 lbs GVWR; and 1997 and later
LDDVs (light-duty diesel vehicles), up
to 8,500 lbs GVWR; and 2008 and newer
MDVs (gasoline or diesel), up to 14,000
lbs GVWR.\34\ \35\
[[Page 66301]]
Evaporative system function None.................................... Gas Cap Pressure Test, for 1975-1995
check. vehicles.
Waiver Rate (for cost- 3%...................................... 3%.
limited I/M repair
expenditures).
Motorist Compliance Rate.... 96%..................................... See Delaware SIP Appendix A of the
Delaware Plan for Implementation for
program compliance rate.
Evaluation Date \36\ \37\... January 2002............................ January 2023.
----------------------------------------------------------------------------------------------------------------
Though Delaware is not required to demonstrate compliance with a
performance standard in the Sussex County area, as I/M there was
adopted as a SIP strengthening program (as described in section I. of
this action), the State elected to demonstrate that the Sussex County
program meets EPA's basic I/M performance standard in order to rely
upon the benefits from this program to meet CAA noninterference
requirements under section 110(l). Additionally, the Sussex County
program provides additional reductions to offset impacts to the
Wilmington area program from the changes to that program. Table 2, in
this document, shows the I/M program parameters of the Sussex County
program compared to those of EPA's basic I/M performance standard, to
show the assumptions used to model the benefits of the Sussex County
program and to demonstrate that the revised program does not backslide
from that in the approved SIP.
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\38\ See 40 CFR 51.352 Basic I/M Performance Standard.
\39\ Delaware exempts all pre-1996 model year, diesel-powered
vehicles from the I/M program.
\40\ Except for OBDII equipped vehicles, which instead receive
an OBDII check in lieu of idle testing. EPA's position on the use of
OBD testing, in lieu of idle tailpipe testing, is detailed in EPA's
Amendments to I/M Program Requirements Incorporating OBD Checks
final rule (66 FR 18156; April 5, 2001).
\41\ See appendix B to 40 CFR part 51, subpart S.
\42\ EPA's MOVES model no longer models the impacts of all
enhanced I/M performance standard parameters listed under EPA's I/M
requirements rule, at 40 CFR 51.351, including certain emission
control device inspections and pre-1981 test stringency rate.
\43\ Delaware is newly extending applicability to include MDVs
(up to 14,000 lbs GVWR), subject to OBD testing.
\44\ Excludes exempted new vehicles, up to 7 model years old.
\45\ EPA's basic I/M performance standard at 40 CFR 51.352
requires that the state's program be shown to obtain the same or
lower emission levels as the model program by 1997 for the ozone
NAAQS.
\46\ For revisions to a SIP-approved I/M program, the
performance standard modeling analysis year is the evaluation date
is the date of implementation of the revised I/M program. See EPA's
``Performance Standard Modeling for New and Existing Vehicle
Inspection and Maintenance (I/M) Programs Using the MOVES Mobile
Source Emissions Model'' [EPA-420-B-22-034 October 2022], p. 10. For
revisions to an I/M program currently approved into the SIP, the PSM
analysis year would be the evaluation date used in the approved SIP
or the date of implementation of the revised I/M program, whichever
is later.
Table 2--Basic I/M Performance Standard Comparison for Sussex County SIP Strengthening Program \38\
----------------------------------------------------------------------------------------------------------------
I/M program element EPA basic performance standard Delaware's SIP-strengthening I/M program
----------------------------------------------------------------------------------------------------------------
Network Type................ Centralized............................. Centralized.
Program Start Date.......... Existing programs--1983; Newly subject Sussex County--1983.
areas--1994.
Test Frequency.............. Annual.................................. Biennial.
Model Year Coverage......... 1968 and newer.......................... 1968 and newer (7 newest model years
exempt).
Vehicle Type Coverage....... LDGVs................................... LDVs and LDTs (up to 8,500 lbs GVWR);
MDVs, up to 14,000 lbs GVWR. \39\
Exhaust Emission Test \40\.. Idle Test (1968-1995 model years) \41\.. Curb Idle test (1968-1995 model years).
Emission Standards.......... 1981 and newer--1.2% CO; 1981 and newer-- 1981 and newer--1.2% CO; 1981 and newer--
220 ppm HC. 220 ppm HC.
Emission Control Device None.................................... 1981 and newer Catalytic converter.
Visual Inspection \42\.
On-board Diagnostics II 1996 and newer vehicles................. 1996 and newer LDGVs and LDGTs (up to
(OBDII) Inspection. 8,500 lbs GVWR); and 1997 and later
LDDVs (light-duty diesel vehicles), up
to 8,500 lbs GVWR; and 2008 and newer
MDVs (gasoline or diesel), up to 14,000
lbs GVWR. 43 44
Evaporative system function None.................................... Gas Cap Pressure Test, for 1975-1995
check. vehicles.
Waiver Rate (for repair 0%...................................... 3%.
expenditure limits for I/M
repairs).
Motorist Compliance Rate.... 100%.................................... See Appendix A of the Delaware SIP Plan
for Implementation for compliance rate.
Evaluation Date \45\ \46\... January 2002............................ January 2023.
----------------------------------------------------------------------------------------------------------------
To demonstrate the applicable performance standard has been met,
the state must model the emissions benefits of its program against that
of EPA's model program, comparing the results to show that their
program is at least as beneficial as the applicable performance
standard. For an area subject to I/M under the ozone NAAQS, this
analysis (performed using the latest available version of EPA's Motor
Vehicle Emissions Simulator Model (MOVES)
[[Page 66302]]
entails the comparison of the resultant levels, expressed as a
comparison of average grams per mile (gpm), of the ozone precursors
nitrogen oxides (NOX) and volatile organic compounds (VOCs),
from highway mobile sources in the I/M area, as derived from MOVES. For
purposes of this comparison, the state uses the latest available
meteorological and vehicle composition and usage data, keeping constant
all other mobile source emission control program assumptions between
the model program and state program scenarios.\47\ For comparison
purposes, Delaware also modeled a hypothetical ``no I/M'' scenario to
show the emissions for the same area with no benefits from an I/M
program. Delaware used MOVES2014b as the emissions model to generate
2023 evaluation year emissions scenarios. Though EPA has since released
newer versions of the MOVES model (i.e., MOVES3 and MOVES4), Delaware
commenced development of their MOVES SIP analyses prior to the release
of MOVES 3 in 2020.\48\
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\47\ Requirements for conducting a performance standard analysis
are established by 40 CFR part 51, subpart S, with guidance provided
by EPA's guidance document ``Performance Standard Modeling for New
and Existing Vehicle Inspection and Maintenance (I/M) Programs Using
the MOVES Mobile Source Emissions Model,'' dated October 2022 [EPA-
420-B-22-034].
\48\ See ``EPA Policy Guidance on the Use of MOVES 2014 for SIP
Development, Transportation Conformity, and Other Purposes'' (EPA-
420-B-14-008, July 2014), p. 6. Delaware's SIP modeling was
completed in 2019, to support regulatory adoption of Regulations
1126 and 1131. However, those rules were delayed during State
adoption and not finalized until January 2023, delaying submission
of the SIP until March 2023. This MOVES modeling analysis in support
of these SIP revisions commenced prior to the subsequent release by
EPA of MOVES3.
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Table 3, in this document, shows the results of Delaware's low
enhanced I/M performance standard analysis for the Delaware portion of
the Philadelphia-Wilmington-Atlantic City area. As the modeling
depicted in Table 3 demonstrates, the NOX and VOC emission
levels meet EPA's relevant I/M performance standard, as MOVES modeling
for both Kent and New Castle Counties demonstrate that both county's
programs are within the regulatory allowance (40 CFR 51.351(g)(13)) of
0.02 gpm as compared to emission levels resulting from EPA's Low
Enhanced Performance Standard of 40 CFR 51.351.
Table 3--Low Enhanced Performance Standard Modeling Results for the Delaware Portion of the Philadelphia-
Wilmington-Atlantic City I/M Program for a 2023 Evaluation Year (Kent and New Castle Counties) \49\
----------------------------------------------------------------------------------------------------------------
NOX (in grams per VOC (in grams per
County I/M program design mile) mile)
----------------------------------------------------------------------------------------------------------------
Kent................................. No I/M Program............... 0.5139 0.3171
Low Enhanced Performance 0.4871 0.2869
Standard.
Delaware 2023 Program........ 0.4794 0.2831
Performance Standard Margin.. 0.0077 0.0038
New Castle........................... No I/M Program............... 0.4236 0.2557
Low Enhanced Performance 0.3988 0.2289
Standard.
Delaware 2023 Program........ 0.3950 0.2300
Performance Standard Margin.. 0.0038 \50\ -0.0011
----------------------------------------------------------------------------------------------------------------
As described in the Background section of this action, an I/M
program is not CAA-required in Sussex County, Delaware--as the Seaford
area meets neither the minimum MSA population threshold specified under
CAA section 184, nor the minimum urbanized area population threshold
for a nonattainment area under CAA section 182. However, Delaware
elected to voluntarily implement an I/M program in Sussex County as a
SIP strengthening measure and to provide additional ozone precursor
emission reductions to benefit the Delaware portion of the
Philadelphia-Wilmington-Atlantic City ozone nonattainment area. In
order to quantify the benefits of this program, for the purpose of
claiming benefits from the program to contribute to attainment of the
Philadelphia-Wilmington-Atlantic City nonattainment area, Delaware
elected to institute a program design similar to EPA's basic I/M
performance standard.\51\ EPA's review of Delaware's updates to the
Sussex County SIP-strengthening program finds that the revised program
is substantially similar to CAA requirements for a basic I/M program.
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\49\ Delaware's 2023 I/M program amendments expand OBD II
testing Statewide, including expanding existing OBDII testing
requirements in Kent and New Castle Counties on MDV's to include
MDVs up to 14,000 lbs GVWR.
\50\ Kent County, Delaware's VOC emission factor for the State's
2023 I/M Program falls within the 0.02 gpm margin of EPA's enhanced
model enhanced performance standard program, as granted under EPA's
enhanced I/M performance standard requirements at 40 CFR
51.351(g)(13).
\51\ See CAA section 182(b)(4) and 40 CFR 51.352.
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2. Demonstrating Noninterference of the Revised SIP Under CAA Section
110(l) With Attainment, Reasonable Further Progress, or Any Other CAA
Applicable Requirement
In the case where a state elects to revise its SIP-approved I/M
program, in addition to meeting the applicable CAA section 182 program
requirements and applicable performance standard compliance, the state
must also demonstrate that the revisions to the prior, SIP-approved I/M
program will not interfere with the area's ability to attain or
maintain any NAAQS, or with any other applicable CAA requirement. This
type of demonstration is known as a CAA section 110(l) noninterference
demonstration.
In order to offset any potential increase in emissions due to
expansion of new car I/M exemptions to seven model years (as a result
of a State law change (HB 246)), DNREC elected to harmonize inspection
requirements more closely between the low enhanced Regulation 1131
program in the Wilmington area and the Regulation 1126 SIP
strengthening I/M program in Sussex County. This includes: (1) the
addition of OBD II checks to Sussex County; (2) expansion of OBD
testing in all counties, to include OBD II testing for model year 2008
and newer medium duty vehicles between 8500-14,000 lbs GVWR; (3)
elimination of 2-speed idle tailpipe testing in the Wilmington area,
while retaining curb idle tailpipe testing for pre-1996 LDGVs in all
areas (including Sussex County); (4) extension of gas cap pressure
check testing to pre-1996 I/M-subject vehicles; and (5) retention of
visual inspection for catalytic converters in all counties.
See Table 4, in this document, for a comparison in the difference
between emissions under the March 2023 SIP
[[Page 66303]]
revision I/M programs and the prior SIP-approved Delaware I/M program.
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\52\ The Baseline SIP program is the I/M program, as of 2017,
including exemption of vehicles up to 5 years old from testing. The
2023 Revised I/M program includes the disbenefit of expanding the
new car exemption from 5 to 7 model years old, but offsets that
emissions increase through the expansion of OBD testing to the
Sussex County SIP strengthening program, the expansion of OBD checks
in all counties to cover MDVs up to 14,000 lbs GVWR, the expansion
of idle testing to LDVs and LDTs up to 8,500 lbs Statewide (i.e.,
including Sussex County), and a gas cap pressure check for all pre-
1995 I/M-subject vehicles.
Table 4--CAA 110(l) Noninterference Demonstration--Difference Between Delaware's Baseline (Prior, Approved SIP
Program) and the 2023 Revised I/M Program (All Program Areas) \52\
----------------------------------------------------------------------------------------------------------------
Difference from
baseline SIP in Difference from Difference from
County Program description carbon monoxide baseline SIP in baseline SIP in
(CO) (tons per VOC (tons per NOX (tons per
year) year) year)
----------------------------------------------------------------------------------------------------------------
Kent........................... Baseline SIP Program.. ................. ................. .................
2023 Revised I/M +17.1 +0.3 +0.7
Program.
New Castle..................... Baseline SIP Program.. ................. ................. .................
2023 Revised I/M +184.0 +10.1 +7.8
Program.
Sussex......................... Baseline SIP Program.. ................. ................. .................
2023 Revised I/M -594.2 -112.0 -54.1
Program.
--------------------------------------------------------
Net Change (Statewide)..... 2023 Revised I/M -393.1 -101.6 -45.6
Program.
----------------------------------------------------------------------------------------------------------------
Table 4, in this document, shows that there is a slight increase in
annual emissions attributed with Delaware's 2023 SIP revision (due
primarily to expansion of new car exemptions) in the Wilmington area
counties, as compared to the prior SIP program. However, the small
increase in emissions (due to revision of Regulation 1131) within the
Philadelphia-Wilmington-Atlantic City nonattainment area is offset by
an overall net decrease in emissions from the I/M program Statewide,
due to program improvements made Statewide and in particular benefits
(due to upgrade of the Regulation 1126 I/M program) in upwind Sussex
County.
The Sussex County, SIP-strengthening program was never a CAA-
required emission control measure, nor were the emissions benefits
attributed to the Sussex County I/M program part of any reasonable
further progress demonstration or attainment demonstration for any
NAAQS, nor any redesignation/maintenance plan for any NAAQS. Therefore,
the reductions attributed to the Sussex program are ``surplus.'' The
Regulation 1126 SIP-strengthening program is considered ``permanent''
and ``enforceable,'' in that it is required by State regulation
(without sunset) and has been approved as part of Delaware's SIP for
several decades. While Delaware could elect to discontinue I/M in
Sussex County in the future, its removal from the SIP would warrant a
110(l) demonstration showing that the removal of the program would not
impact the ability of any area to attain the NAAQS or demonstrate RFP,
nor interfere with any other applicable CAA requirement. The emissions
reductions from the Sussex County I/M program occur in a county
adjacent to the Philadelphia-Wilmington-Atlantic City ozone
nonattainment area, providing nearby and surplus emission reductions
directly upwind from the Philadelphia-Wilmington-Atlantic City
nonattainment area.
In showing that all ozone and fine particulate matter precursor
pollutants (NOX and VOC), as well as the pollutant CO, are
decreased from the 2023 SIP revised program relative to the prior, SIP-
approved program, Delaware has demonstrated that the 2023 SIP revision
to amend the approved SIP will not interfere with attainment of any
NAAQS, reasonable further progress, or any other applicable
requirement.
C. EPA's Evaluation of Delaware's SIP Revisions
EPA has reviewed Delaware's changes to its enhanced I/M program
that differ from the previous federally approved program and has
determined that these changes meet the requirements of CAA sections 182
and 184, EPA's I/M Requirements Rule at 40 CFR part 51, subpart S, as
well as all other EPA guidance relevant to I/M programs that are cited
in this action. EPA finds that Delaware's revised program meets
applicable I/M performance standards of 40 CFR part 51.351 and has been
shown to comply with the NAAQS noninterference provisions of CAA
section 110(l). Delaware's revisions to its SIP-strengthening 1126
program in Sussex County and the incorporation of the Plan for
Implementation as additional supporting materials for inclusion into
the SIP are similarly approvable. EPA therefore proposes to find that
that Delaware's SIP revisions are approvable into the SIP.
EPA will continue to evaluate the effectiveness of Delaware's
enhanced I/M program for the Delaware portion of the Philadelphia-
Wilmington-Atlantic City I/M program through the annual and biennial
reports submitted by Delaware in accordance with 40 CFR 51.366, ``Data
analysis and reporting,'' and with the ongoing program evaluation
requirements set forth at 40 CFR 51.353(c).
EPA's review of this material indicates that Delaware's requested
SIP revisions submitted on March 13, 2023, to amend the SIP-approved I/
M program for the Delaware portion of the Philadelphia-Wilmington-
Atlantic City area meets all applicable requirements for an enhanced I/
M program under CAA section 182 and 184. The SIP strengthening program
in Sussex County meets applicable requirements for a basic I/M program.
The program enhancements made to both programs have been shown to meet
the applicable EPA performance standards, as required by 40 CFR part
51. The improvements made have been shown to offset emission increases
brought about by expansion of the new vehicle test exemption to seven
years.
III. Proposed Action
Pursuant to the analysis above, EPA is proposing to approve the
relevant revisions to the Delaware I/M rules at 7 DE Admin Code 1126
(for Sussex
[[Page 66304]]
County) and 7 DE Admin. Code 1131 (for Kent and New Castle County), as
submitted on March 13, 2023. For Regulation 1126, this involves
incorporating by reference amendments to sections 1.0 through 9.0 and
the removal of Technical Memorandum #1 and Technical Memorandum #2. For
Regulation 1131, this entails incorporation of a State recodification
of the regulation to reflect a State format change made in 2012, as
well as incorporation of regulatory amendments made in 2012 and 2023.
This results in a reformat of the prior SIP-approved Regulation 31,
replacing sections 1 through 13 with the new format Regulation 1131,
reflecting sections 1.0 to 9.0 as amended in January 2023, as well as
removal of prior codified portions of Appendices 1, 3, 4, 5, 6, 7, 8,
and 9.
EPA is also proposing to approve a SIP revision dated March 13,
2023, submitting for inclusion to the SIP Delaware's ``Motor Vehicle
Emissions Inspection Program; Plan for Implementation for 7 DE Admin
Code 1126 and 7 DE Admin. Code 1131''. This PFI details the means by
which the Delaware SIP provides for the implementation, maintenance,
and enforcement of the ozone NAAQS. Delaware inadvertently added this
PFI language to their regulation in a State action dated May 15, 2021.
Delaware mistakenly included what were intended as non-regulatory
planning provisions to support the I/M regulation as part of a State
amendment to Regulation 1131--Low Enhanced Inspection and Maintenance
Program; Plan for Implementation (PFI). In January 2023, Delaware acted
to remove the PFI from Regulation 1131,\53\ instead making it a
standalone, non-regulatory document for inclusion in the SIP to support
both Regulation 1131 and Regulation 1126. Delaware has requested that
EPA add this PFI document for Regulations 1126 and 1131 as additional
materials for inclusion in the Delaware SIP, rather than incorporating
these materials into State regulation for incorporation by reference by
EPA as part of the SIP.
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\53\ Regulation 1131--Low Enhanced Inspection and Maintenance
Program; Plan for Implementation (PFI) was repealed effective
January 11, 2023.
---------------------------------------------------------------------------
EPA proposes to grant Delaware's request to approve the now non-
regulatory PFI documents as additional supporting, non-regulatory State
materials to the SIP.
Approval of these three March 13, 2023 proposed SIP revisions will
enable the Department to formally address EPA's applicable CAA 182 and
184 I/M requirements, as well as other SIP requirements under CAA
section 110, and incorporate the same into Delaware's SIP document.
EPA is proposing to approve three Delaware SIP revisions for their
I/M programs in the Delaware portion of the Philadelphia-Wilmington-
Atlantic City area and the Sussex Area, as well as their accompanying
PFI SIP revision, all of which were submitted on March 13, 2023. EPA is
soliciting public comments on the proposed SIP revisions discussed in
this document. These comments will be considered before taking final
action.
IV. Incorporation by Reference
In this document, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference Delaware's revised Title 7, Regulation 1131 entitled ``Motor
Vehicle Emissions Inspection Program--Kent and New Castle Counties'',
as State-adopted on January 1, 2023--including updates to revisions
made by the State on June 12, 2012, as described in section II.A. of
the preamble. In accordance with requirements of 1 CFR 51.5, EPA is
also proposing to incorporate by reference Delaware's revised Title 7,
Regulation 1126, entitled ``Motor Vehicle Emissions Inspection
Program--Sussex County'', as published as a final rule in the Delaware
Register on January 1, 2023 (effective January 11, 2023).
EPA has made, and will continue to make, these materials generally
available through www.regulations.gov and at the EPA Region III Office
(please contact the person identified in the FOR FURTHER INFORMATION
CONTACT section of this preamble for more information).
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 approves 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 Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
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); and
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 Clean Air Act;
In addition, this proposed rule, to approve three March 13, 2023
Delaware SIP revisions related to the vehicle I/M program, 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.
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
[[Page 66305]]
commercial operations or programs and policies.''
The Delaware Department of Natural Resources and Environmental
Control did not evaluate environmental justice considerations as part
of its revised enhanced I/M program SIP submittal; the CAA and
applicable implementing regulations neither prohibit nor require such
an evaluation. EPA did not perform an EJ analysis and did not consider
EJ in this action. Due to the nature of the action being taken here,
this action is expected to have a neutral to positive impact on the air
quality of the affected area.
Consideration of EJ is not required as part of this action
proposing approval of Delaware's revision of its enhanced I/M program
SIP revision, and there is no information in the record inconsistent
with the stated goal of E.O. 12898 of achieving environmental justice
for people of color, low-income populations, and Indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Volatile organic compounds.
Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2024-18173 Filed 8-14-24; 8:45 am]
BILLING CODE 6560-50-P