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Citation: 67 Fed. Reg. 30574 2002

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and claimed at DBMC rates. Machinable parcels for the Buffalo ASF service area prepared and claimed at DBMC rates must be sorted to the Pittsburgh BMC under L601. Nonmachinable parcels for the Buffalo ASF service area claimed at DBMC rates maybe sorted to the Pittsburgh BMC under L601 if bedloaded and presented with machinable parcels.

[An appropriate amendment to 39 CFR part 111.3 will be published to reflect these changes.] Stanley F.Mires, ChiefCounsel,Legislative. [FRDoc. 02-11310 Filed5-6-02; 8:45 am]

BILLING CODE 7710-12-M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52 [GA-57-200224; FRL-7206-2]
Approval and Promulgation of Implementation Plans; Georgia: 1-Hour Ozone Attainment Demonstration, Motor Vehicle Emissions Budgets, Reasonably Available Control Measures, Contingency Measures and Attainment Date Extension

AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule.

SUMMARY: Pursuant to the Clean Air Act,

as amended in 1990, (CAA), EPAis approving the 1-hourozone attainment demonstration State Implementation Plan (SIP) for the Atlanta serious 1-hour

ozone nonattainment area. In conjunction with its approval ofthe attainment demonstration, EPA is: extending the ozone attainment date for the Atlanta 1-hour ozone nonattainment

area to November 15, 2004, while retaining the area's current classification

as a serious ozone nonattainment area; finding thatthe Atlanta 1-hour ozone nonattainment area meets the reasonably available control measures (RACM)requirements ofthe CAA; finding thatthe contingency measures identified by the State ofGeorgia are adequate; approving the Partnership for

a Smog Free Georgia (PSG)program; and approving the 2004 motor vehicle emissions budgets (MVEB). EFFECTIVE DATE: Thisrule will be effective June 6, 2002. ADDRESSES: Copies ofdocuments relevant to this action are available for public inspection during normal business hours at the following addresses: U.S. EPA, Region 4 Air Planning Branch, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960.

Air Protection Branch, Georgia Environmental Protection Division, Georgia Department ofNatural Resources, 4244 International Parkway, Suite 120, Atlanta, Georgia 30354. Telephone (404) 363-7000.
FOR FURTHER INFORMATION CONTACT: Scott M. Martin, EPA Region 4, (404) 562-9036 or email: martin.scott@epa.gov. SUPPLEMENTARY INFORMATION:
Table ofContents I.Background II.Today's Actions

A. Attainment Demonstration Approval

andExtension ofAttainment Date B.Reasonably Available ControlMeasure

Analysis C.2004 Motor Vehicle EmissionsBudget D.Partnership foraSmog Free Georgia E. Contingency Measures I1. Comment and Response IV. Final Action V. Administrative Requirements

I. Background
OnJuly 17, 2001, the Georgia Environmental Protection Division (GAEPD) submitted toEPA a revised 1- hour ozone attainment demonstration for the Atlanta 1-hour ozone nonattainment area (Atlanta area) that replaced the attainment demonstration submittedto EPA on October 28, 1999. The new submittal contained a revised MVEB, a request for an attainment date extension to November 15, 2004, a revised PSG program and the RACM analysis. GAEPD also agreed toperform

an early assessment ofthe Atlanta Ozone Attainment SIP and submitit to EPA byNovember 15, 2003.

EPA proposed to approve the attainment demonstration and to grant

an attainment date extension, pursuant to EPA's "Guidance on Extension ofAir Quality Attainment Dates for Downwind Transport Areas." The extension policy applies where pollution from upwind

areas interferes with the ability ofa downwind area to demonstrate attainment with the 1-hour ozone standard bythe dates prescribed in the CAA. As an alternative to reclassification for areas affected by transport, the extension policyprovides that an area, such asAtlanta, is eligible for an attainment date extension ifitcan make submissions that meet certain conditions. EPA proposed thatthe Atlanta area met all ofthe required conditions.

In the alternative, EPAproposed to find thatthe Atlanta area failed to attain the 1-hour ozone National Ambient Air Quality Standards (NAAQS) by November 15, 1999, the date set forth in the CAA for serious nonattainment

areas. IfEPA had finalizedthis finding, the Atlanta area wouldbe reclassified, by operation oflaw, as a severe nonattainment area. EPA also took
comment on a proposed schedule for submittal ofthe SIP revisions required for severe areas should the area be reclassified.

Please see the Federal Register proposal actions published on December 16, 1999, (64FR 70478) and December 11, 2001, (66FR 63972) for further information.

II. Today'sActions

A. AttainmentDemonstration Approval andExtension ofAttainment Date

In today's action EPAis finalizing its proposed determination thatthe Atlanta SIP has met the criteria for an attainment date extension.Therefore, EPAis extending the attainment date for the Atlanta area to November 15, 2004,
to allow the reductions intransport needed for attainment to occur. Please

see the Federal Register actions published onDecember 16, 1999, (64 FR 70478) and December 11, 2001, (66 FR 63972) for further information.

EPA's policy regarding an extension ofthe ozone attainment date for areas affected by transport was setforth in a July 16, 1998, guidance Memorandum entitled "Extension ofAttainment Dates for Downwind Transport Areas" which

was published in a notice of interpretation on March 25, 1999, (64 FR 12221). Init,EPA set forthits interpretation ofthe CAAregarding the extension ofattainment dates for ozone nonattainment areas thathave been classified as moderate or serious for the 1-hour ozone NAAQS, and which are downwind ofareas thathave interfered with the moderate and serious nonattainment areas's attainment ofthe

ozone NAAQS by dates prescribed in the CAA. EPA statedthat itwill consider extending the attainment date for an area or a state that:

a. Has been identified as a downwind

area affected by transportfrom either an upwind area in the same state with a later attainment date or an upwind area in another state that significantly contributes to downwind ozone nonattainment;

b. Has submitted an approvable attainment demonstration with any necessary, adoptedlocal measures, and with an attainment date that shows it will attainthe 1-hour NAAQS no later thanthe date thatthe emission reductions are expected from upwind

areas in the final nitrogen oxide (NOx) SIP Call and/or the statutory attainment 

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date for upwind nonattainment areas, i.e., assuming the boundary conditions reflecting those upwind emission reductions;

c. Has adopted all applicable local

measures required under the area's
current ozone classification and any additional emission control measures demonstrated tobe necessary to achieve timely attainment, assuming the emission reductions occur as required in the upwind areas; and

d. Has provided thatit will implement all adopted measures as expeditiously as practicable, but no later than the date bywhich theupwind reductions needed for attainment will be achieved.

EPA has determined that the Atlanta

area has satisfied the criteria for an attainment date extension as follows.

(i) The State has cited EPA's NOxSIP Call modeling and analyses documented in EPA's final NOxSIP Call notice published onOctober 27, 1998, (63 FR 57356) to demonstrate thatthe Atlanta

area is affected by an upwind area in another state that significantly contributes to ozone nonattainment in the Atlanta area. In our December 16, 1999, notice (64 FR 70478) proposing approval ofthe initial 1-hour ozone attainment demonstration for the Atlanta area submitted on October 28, 1999, we explained how the Ozone Transport Assessment Group (OTAG) modeling which supported the NOx SIP Call andthe attainment demonstration for the Atlanta area demonstrates the impacts oftransport. The NOx SIP Call notice provides that emissions from

sources in Alabama, Kentucky, North Carolina, South Carolina, and Tennessee significantly contribute to violations of the 1-hour ozone standard in the Atlanta

area.

(ii)As explained elsewhere in this notice, the GAEPD has submitted an attainment demonstration thatEPA believes is approvable and that provides for timely attainment no later than the date emission reductions are expected under the NOx SIP call. All ofthe local control measures relied upon in the attainment demonstration havebeen adopted and submitted to EPA. These

measures include all serious area requirements under section 182(c) and the additional controls discussed in the December 16, 1999, proposal (64 FR 70478) and the July 10, 2001, (66 FR 35906) final rule.

(iii)The GAEPD has adopted all local

measures required by section 182(c) of the CAA for the Atlanta serious nonattainment area and all other

measures necessary for timely attainment. (See 59 FR 46176, 60 FR 12691, 60 FR 66150, 61 FR 3819, 62 FR 42918, 64 FR 20188). Additionally, see discussion ofcontingency measures discussed below.

(iv)With respect to implementation of all adoptedmeasures as expeditiously

aspracticable but no later than the time upwind controls are expected, the Atlanta SIP requires that alllocal control measures needed for attainment be in place byMay 1, 2003, or earlier. The upwind areas identified above are required to implement controls consistent with the NOx SIP Callby May 31, 2004. All ofthe local control

measures inthe Atlanta SIP will, therefore, be implemented prior to that time andEPA also finds that they will be implemented as expeditiously as possible.

EPA has determined, based on the above discussion, thatthe Atlanta SIP has met the criteria for an attainment date extension.Therefore, EPA is extending the attainment date for the Atlanta area toNovember 15, 2004, to allow the reductions in transport to

occur before attainment isrequired. This does not affect the GAEPD's obligation to implement the remaining local measures bythe dates required in the approved SIP regulations. Additional background information on EPA's attainment date extension policy

canbe found in the following Federal Register notices:
64 FR 14441-March 25, 1999 64 FR 12284-March 18, 1999 64 FR 18864-April 16, 1999 64 FR 27734-May 21, 1999 64 FR 70459-December 16, 1999 65 FR 20404-April 17, 2000 66 FR 585-January 3, 2001 66 FR 634-January 3, 2001 66 FR 666-January 3, 2001 66 FR 17647-April 3, 2001 66 FR 20122-April 19, 2001 66 FR 26913-May 15, 2001 66 FR 33996-June 26, 2001

In the supplemental proposed rule published onDecember 11, 2001, EPA proposed to approve the 1-hour ozone attainment demonstration for the Atlanta area as submitted onJuly 17, 2001, andto extend the area's attainment date to November 15, 2004. In the alternative, EPAproposed to find that the Atlanta area failed to attainthe 1-hour ozone NAAQS by November 15, 1999, andto reclassify the Atlanta area to severe.

In today's action, EPAis granting final approval to the 1-hour ozone attainment demonstration for the Atlanta area and extending the attainment date to November 15, 2004. The Atlanta area will thus retain its classification as a serious nonattainment area. B.ReasonablyAvailable Control MeasuresAnalysis (RACM)
Section 172(c)(1) ofthe CAArequires attainment demonstration SIPs to provide for the implementation ofall RACM as expeditiously aspracticable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, ofreasonably available control technology, (RACT) and to provide for the attainment ofthe NAAQS. EPA has previously provided guidance interpreting the RACM requirements of 172(c)(1) (see 57 FR 13498, 13560). RACM was also discussed in the supplemental proposed rule published onDecember 11, 2001, (see 66 FR 63972). Today, EPAis approving Georgia's RACM analysis.

C.2004MotorVehicleEmissions Budgets

The MVEB for 2004 were calculated using the revised speeds, updated registration data, updated vehicle miles traveled (VMT), and projected 2004 VMT, and the control measures identified in the 1-hour ozone attainment demonstration for the Atlanta area. The resulting budgets are 106.25 and 225.12 tons per typical

summer day ofVOC and NO x, respectively.

These MVEB reflect the most up-todate mobile modeling assumptions including 2004 VMT projected from the travel demand model for the Atlanta

area and July 2004 emission factors from EPA'sMOBILE5b emission factor model and 1999 vehicle registration data, which were available at the time ofSIP adoption. The control measures identified and modeled for mobile emissions used to establish the MVEB, along with other control measures in this plan, will result in attainment ofthe 1-hour ozone NAAQS by 2004.

EPA is granting final approval to the 2004 MVEB because they arebased on the most recent data, theyreflect reductions from the control measures included in the attainment demonstration and they are consistent with the overall attainment demonstration.

Now thatEPAhas approved the Atlanta attainment demonstration, all future transportation conformity determinations mustbe measured against the MVEB in the approved SIP. The previous adequacy determination thatEPAhad made with respect to the MVEB inthe submitted attainment demonstration SIP will haveno further force or effectin any future conformity determinations. EPA's final approval of the attainment demonstration andthe 

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MVEB contained in itis a separate action from EPA's prior adequacy determination andisbased upon different analyses and standards. The adequacy determination had only found that the submitted budgets met the adequacy criteria in EPA's transportation conformity regulations, 40 CFR 93.118(e)(4). Today's approval is based onEPA's conclusions that the SIP

as a whole, including the MVEB it contains, meets all applicable requirements for approval ofan attainment demonstration as described throughout this notice.

D.Partnership fora SmogFreeGeorgia
In 1997, EPA published the "Voluntary Mobile Source Emission Policy" (VMEP) in order to assist states considering nonregulatory emission strategies, which are generally not effective on a mandatory basis. The VMEP policy allows states to take credit for expected emission reductions from voluntary mobile source programs, and allows states to take credit for up to 3 percent ofthe total emission reductions needed for attainment through the VMEP policy. Georgia isusing this policy totake credit for its PSG program. The PSG promotes effective voluntary actions that employers, their employees and general residents in the region can take to help improve air quality in the metro Atlanta region duringthe ozone season.

EPA is approving the PSG program, its evaluation procedures, and the expected emission reduction targets as

an enforceable part ofthe SIP under the VMEP policy. Additional information

canbe found in the above referenced proposal notice.

E.Contingency Measures
Section 172(c)(9) and 182(c)(9) ofthe CAA require SIPs to contain additional

measures that will take effect without further actionby the state or EPAifan

area fails to attainthe standard by the applicable date or tomeet rate-ofprogress (ROP) deadlines. The CAA does not specify howmany contingency

measures are needed or the magnitude ofemissions reductions thatmust be provided by these measures. Although the Atlanta SIP does not contain such contingency measures EPA has determined that existing federally enforceable measures would provide the
necessary substantive relief sufficient to provide thebasis for approval ofan extension to the area's attainment date. Georgia must still submit the required contingency measures to EPAfor approval into the SIP. Additional information can be found in the above referenced proposal notice. III. Comment andResponse

EPA received comments from the public onthe Notices and Supplemental Notices ofProposed Rulemaking published in the FederalRegister on December 16, 1999, (64 FR 70478) and December 11, 2001, (66 FR 63972.) Comments were submittedby The Georgia Conservancy, Environmental Defense, Natural Resources Defense Council, The Sierra Club, Souther Company Services, Kilpatrick Stockton LLP, Georgia Center for Law in the Public Interest, American Road & Transportation Builders Association (ARTBA), Advocates for Safe and Efficient Transportation (ASET), National Association ofHome Builders (NAHB), andthe Southern Environmental Law Center.

EPA sets forthbelow in this section

ourresponses to adverse comments received on these notices which are relevant to this rulemaking. Additionally, some ofthe comments received in Docket A-98-47 onEPA's notice regarding "Extensions of Attainment Dates for Downwind Transport Areas" 64 FR 14441 (March 25, 1999), are relevant to this rulemaking. EPA incorporates its
responses to those comments, set forth in 66 FR 585, 66 FR 634, 66 FR 666 (January 3, 2001), 66 FR 26913 (May 15, 2001), and 66 FR 33996 (June 26, 2001) insofar asherein relevant.

The following discussion summarizes andresponds to all adverse comments:
CommentsReceivedRelatingto the SupplementalProposed RulePublished in theFederalRegister on Tuesday, December11, 2001, See 66FR 63972

Comment 1

EPA proposes to extend the attainment date for the Atlanta metropolitan area toNovember 15, 2004, 66 Fed.Reg. 63,972. Because this extension violates the plain meaning of the CAA, itmust be rejected under Step One of Chevron U.S.A. v.Natural ResourcesDefense Council,467 U.S. 837, 842-43 (1984). Moreover, the extension rests on an unreasonableandtherefore impermissibleinterpretation thatmust be rejected even ifChevron Step Two applies. See Whitmanv.American TruckingAssns., 121 S. Ct. 903, 916 (2001) (reversing an EPA interpretation ofSubparts 1 and 2 that "goes beyond the limits ofwhat is ambiguous and contradicts what in our view is quite clear"); Natural Resources Defense Councilv. Daley,209 F.3d 747, 753 (D.C. Cir. 2000) (rejecting an agency interpretation that "diverges from any realistic meaning" ofthe statute). The CAA expressly sets November 15, 1999, as the attainment date for serious
areas, and authorizes no extensions on the grounds asserted byEPA. The
structure ofthe CAAfurther refutes EPA's assertion ofauthority to amend those deadlines administratively. While accepted principles of statutory interpretation would in any event preclude EPA's attempt to administratively amend express statutory provisions, such amendment is especially unwarranted with respectto deadlines for attainment ofprimary air quality standards.

EPA's claim that ithas authority to extend attainment dates based on pollution transportis further refuted by express CAA provisions showing that Congress expressly authorized both (1) attainment date extensions and (2) modifications to the CAA's provisions based onpollution transport. These extension provisions provide the exclusive authority for attainment date extensions because when Congress has prescribed the conditions underwhich

an extension maybe granted, no other conditions may be created by the Agency to grant an extension. The U.S. Court ofAppeals for the Eleventh Circuit rejected EPA's administrative amendment ofthe CAAplain terms. Response 1

In this finalrule, EPA responds to the adverse comments on EPA'slegal authority to extend Atlanta's attainment date received in response tothe relevant proposals.The responses to comments in a number ofprior rulemakings concerning the attainment date extensions granted in Washington, DC, Springfield, MA, Greater CT, Beaumont Texas, and St. Louis are relevant and responsive to the comments received on Atlanta. In those prior rulemakings, EPA responded to similar challenges to the legality ofthe attainment date extension policy, and EPAtherefore incorporates itsresponses to these comments, set forth in 66 FR 586, 66 FR 634, 66 FR 666 (January 3, 2001), 66 FR 26913 (May 15, 2001) and 66 FR 33996 (June 26, 2001) insofar as hereinrelevant.

Many ofthe legal arguments and other issues raised inthe comments addressing the attainment date extension proposed in Atlanta have also been addressed inthe briefs EPA has filed in litigation concerning the extensions in Washington, D.C. (Sierra Clubv. Whitman)No. 01-1070 (D.C. Cir.), St.Louis, SierraClubv. EPA 01- 2844, No. 01-2845 (7th Cir.), and Sierra Clubv. Whitman, Nos. 01-5123 and01- 5299 (D.C.Cir.) and Beaumont Sierra Clubv. EPA,No. 01-60537 (5th Cir.). Thesebriefs have been placed in the 

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docketfor this rulemaking and are incorporated herein byreference.

In response to the contention that EPA's proposed attainment date extension conflicts with an order previously issuedby the Eleventh Circuit Court ofAppeals, the Eleventh Circuit Court ofAppeals has not even directly reviewed, or ruled on, and thus certainly has not formally rejected, EPA's attainment date extension policy. The court did issue a stay ofEPA's adequacy determination on the emissions budgets in the 1999 attainment demonstration SIP pending completion oflitigation in Georgians for Transportation Alternatives,eta].v. EPA,eta].,No. 00-12187, order ofJuly 18, 2000. The petitioners had alleged in their stay request thatthe budget was inadequate because the SIP illegally relied upon an attainment date extension. However, EPA responded that the budget wouldbe adequate even ifan attainment date were not granted andthe area were bumped up, since in either case the attainment date would be the same. The court granted the stay in

a one line order without opinion. The
most that can be taken from this action is thatthe courtbelieved petitioners had

some likelihood of success on the merits andin light ofallegations ofpotential harm chose to preserve the status quo pending completion ofthe litigation. The issuance ofthe stay without opinion in no way indicates thatthe
court affirmatively rejected EPA's extension policy. The courtnever ruled further onthe matter since EPA ultimately withdrew its adequacy determination based on new factual developments relating tothe attainment demonstration. Similarly, in a recent development that occurred after EPA received comments on itsinstant action, the 11th Circuit Court ofAppeals issued

a stay onthe recently adequate MVEB for the Atlanta nonattainment area in
response to a request for an expedited stayin SierraClub,et a]v. EPA, No. 02- 11188-F onApril 17, 2002. However, the 11th Circuit ofAppeals did not provide any rationale for its grant ofthe stay. Itsimply issued a stay in the same

manner as in Georgians for Transportation Alternatives,eta].v. EPA,etaL., No. 00-12187. Since a stay is not an adjudication on the merits, the grant ofa stay does not change EPA's position as tothe legality ofthe extension policy.

A commenter's contention that EPA shouldnot grant Atlanta an attainment date extension because Georgia should have acted earlier to commence a section 126 proceeding to reduce emissions from upwind states ignores the factthat an adequate analysis and allocation ofresponsibility for transport did not exist in time to support reliefby the area's original attainment date. See similar responses in EPA's prior rulemakings on the other attainment date extension areas.

Another argument raised is that reclassification ofan area affected by transport is necessary to achieve additional interim reductions in the
area, evenwhere they will not advance attainment andwhen a combination of local and upwind reductions will bring the area into attainment. The
commenter relies for his argument on section 176(c)(1)(A), a conformity provision which contains only ageneral characterization ofthe purposes ofthe SIP as a whole. While EPA agrees that SIPs have purposes other than thatof providing for attainment, the CAA contains specific and detailed requirements directed tofulfilling those
purposes, and the SIP for Atlanta meets those requirements. EPA believes that, under the circumstances, Congress did
not intend torequire a SIP to go beyond those requirements in order to obtain reductions to compensate for pollution coming from outside the area's borders. The commenter also references Natural ResourcesDefense Councilv. Reilly,983 F.2d 259, 268, 272 (D.C. Cir. 1993). This

case involved promulgation of requirements for on-board refueling
vapor recovery systems, a provision far different from the complex relationship amongthe CAAprovisions regarding transport andreclassification. Contrary
to commenter's contention that Reilly supports the concept of"double controls", in the context ofonboard regulation, Congress mandated that Stage II controls be withdrawn afterthe promulgation ofonboard controls in moderate areas, and alsomandated a

more delayed withdrawal from serious and severe areas because ofthe decadelong phase-in required for effective onboard controls in those areas. That

case did not deal withtransport, and nothing inReillyindicates that Congress would be supportive oflocal areas being held responsible for reducing transported pollution for which upwind

areas are obligated to promulgate and implement controls.

A commenter argues thatit is equitable toreclassify Atlanta because, although it is downwind ofsome areas, it isupwind ofother nonattainment
areas, andmay contribute to nonattainment there. Reclassification of

an upwind area, however, is not the mechanism prescribed by Congress to remedy transport. An area is not required to be reclassified ifit provides for local attainment but contributes to nonattainment elsewhere. Forpurposes ofreclassification the relevant analysis is ofthe air quality and transported pollution problem inthe area being reclassified, andnot the air quality downwind from the area. To the extent thatthe area isresponsible for violations in other areas downwind, itis subject to the provisions of section 110(a)(2)(D) and section 126.

Commenters cite to prior case law in support of such propositions as: alist of specific remedial provisions excludes the possibility ofinferring that Congress intended any additional forms ofrelief;

an agency cannot substitute its policy choices for those ofCongress; the attainment deadlines are central to the CAA and cannot be adjusted.EPA has previously set forth its views onthese issues in itsprior responses andin its briefs. None ofthe cases or arguments citedby the commenter altersthese views, orundermines EPA's authority to interpret the text ofthe statute in its full
context so as to give effect to Congress's intent. EPA is implementing the attainment date extension not as a mere Agency policy preference, but in order
to fulfill Congress's intent.Moreover,

evenin the absence ofexplicit statutory authority, EPAmay grant extensions of timeunder the CAA where it concludes that Congress would have done the

same had it foreseen the circumstances presented. NRDCv.EPA, 22 F.3d 1125 (D. C. Cir. 1994).

Comment 2

EPA's proposal to grant an unauthorized date extension has been pre-empted by the re-classification of the Atlanta area that occurred by operation oflawpursuant to section 182(g)(3) ofthe CAA. That provision provides for reclassification ofa serious

area to severe "[i]f a State fails to submit

a demonstration under paragraph 2for
any Serious area within the required period," and failsto make a election of

one ofthe statutory options prescribed by paragraph (3)for remedying that failure.

Comment 3

The factthat Georgia failed to make the demonstration required by section 182(g)(2) is established by EPA's response to a Freedom ofInformation Act request submitted April 20, 2001.

Comment 4

Atlanta failed to comply with the rate offurther progress milestone for NOx. Response to Comments 2, 3,and 4

Under paragraph (2) ofsubsection 182(g), each State containing all or part ofa nonattainment area classified serious or higher isrequired to submit, 

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at specified times after a milestone has occurred, "a demonstration that the milestone has been met." This provision further provides,

A demonstration under this paragraph shallbe submitted in such form and
manner, and shall contain such information and analysis, as the Administrator shall require, by rule. The Administrator shall determine whether

ornot a State's demonstration is adequate within 90 days after the Administrator's receipt ofa demonstration which contains the information and analysis required by the Administrator.

Under paragraph (3), "If a State fails
to submit a demonstration under paragraph (2)," it must,within specified time frames, elect among several choices, andifitfails to make such an election, then, at a specified time, it is reclassified by operation oflaw.

By itsterms, paragraph (3)mandates the reclassification, or bump-up, only if the State fails to submit "a demonstration under paragraph (2)." Paragraph (2), in turn, provides by its
terms thatthe required demonstration is

one that "in such form and manner * * * contain[s] such information and analysis asthe Administrator shall require, by rule."

Subsection 182(g) does not provide a dateby which EPA must promulgate the rule that establishes the requirements for the demonstration, and EPAhas not yet promulgated such arule. Bylimiting the bump-up to circumstances in which the State fails to submit a demonstration that conforms toEPA requirements for form and content, subsection 182(g), read most straightforwardly, indicates at least through implication that absent such a rule, there is no requirement for any demonstration that, ifnot submitted, would ultimately result in a bump-up.

This reading is sensible in light ofthe many different methods thatEPA could require for the demonstration. The milestone compliance demonstration is designed torequire some form of accounting to ascertain whether the area has achieved the amount ofemissions reductions thatthe SIP requires by that time. One method ofmaking this calculation may be to require a comprehensive inventory ofall sources

near the time ofthe milestone. This approach may require careful consideration because ofthe time and
expense typically involved in conducting inventories, andbecause otherprovisions ofthe CAA require inventories, but at different times than would be required by the milestone compliance demonstration. See 182(a)(3). A second method maybe to allow emissions estimates, consistent with approved methodologies, rather than comprehensive inventories. A third method may be to determine whether the controls required under the SIP to have been implemented bythe time of the milestone have, in fact, been implemented. These different methods would impose significantly different burdens on States and sources, andmay yield somewhat different results.

This review ofthe different methods for making the demonstration makes clear thatthe most straightforward reading of section 182(g)(2)-(3)-to require application ofthe bump-up by operation oflaw only after aEPA promulgates rules for the demonstration-is sensible. It makes

sensethat EPA shouldfirst tell the States, byrule, which ofthe various milestone accounting methodologies they must use. By comparison, itwould make little sense topunish, in effect, a State with a bump-up for failing to submit a demonstration when EPA has
not yettold the State the form and
content for the demonstration, and when important differences existin the various methods for making the demonstration.

The CAArequires serious ozone nonattainment areas to develop and submitRate ofProgress Plans (ROP) which would provide for atleast a 15 percent reduction ofvolatile organic compound (VOC) emissions 1990 to 1996 (15 percent plan), andPost-1996 ROPs, which would provide for at least three percent per year in either VOC or NOx annually for 1997, 1998, and 1999, (9 percent plan). The 15 percent plan

was submitted on November 15, 1993, andthe 9 percent plan was submitted

onNovember 15, 1994. Both plans were revised on June 17, 1996.

All elements ofthe 15 percent plan, which reduced VOC emissions by 117.06 tons per day were implemented by the GAEPD. EPA granted final approval to this plan on April 26, 1999, (64 FR 20186). Amilestone compliance demonstration (MCD) asrequired by section 182(g) ofthe CAA was submittedby the GAEPD to EPA on February 14, 1997.

All elements ofthe 9 percent plan, which reduced NO x emissions by 50.10
tons per day, were implemented by the GAEPD. Although the GAEPD did not submit amilestone compliance demonstration, there is a discussion in section 3.2.2. ofthe attainment demonstration which states that all control measures associated with the 15 and 9 percent plans have been adopted andimplemented. EPA granted final approval to this plan on March 18, 1999, (64 FR 13348). Comment 5

The Atlanta SIP fails to demonstrate attainment with a standard of0.12 ppm, rather than 0.124 which was not promulgated as the NAAQS.
Response 5

Although the 1-hour NAAQS itself includes no discussion of specific data handling conventions similar to that of the 8-hour NAAQS, EPA's publicly articulated position and the approach long since universally adopted bythe air quality management community is that the interpretation of the 1-hour

ozone standard requires rounding ambient air quality data consistent with the stated level ofthe standard. EPA has clearly communicated the data handling conventions for the 1-hour ozone NAAQS in regulation and guidance documents. In the 1990 Amendments to the CAA, Congress expressly recognized the continuing validity ofEPA guidance.

As early as 1977, two years before EPA promulgated the 1-hour ozone NAAQS, EPA provided in guidance that the level ofthe standard dictates the number of significant figures to be used in determining whether the standard

was exceeded (Guidelines forthe Interpretation ofAir Quality Standards, OAQPS No. 1.2-008, February 1977). In addition, the regulations governing the reporting of annual summary statistics from ambient monitoring stations for

use byEPA in determining national air quality status clearly indicate the rounding convention to be used for 1- hour ozone data (40 CFR 58, Appendix F). In 1979, EPA issued additional guidance specific to ozone in which EPA provided that "the stated level of the standard is taken as defining the number of significant figures to be used in comparisons with the standard. For example, a standard level of.12 ppm

means that measurements are to be rounded to two decimal places (.005 rounds up), and, therefore, .125 ppm is the smallest concentration value in

excess ofthe level ofthe standard." (Guideline for the Interpretation of Ozone Air Quality Standards, EPA-450/ 4-79-003, at p. 6.) EPA's guidance on air quality modeling is consistent with those Guidelines. See e.g., Guidance on Use ofModeled Results to Demonstrate Attainment of the Ozone NAAQS, July 1996.

The level ofthe 1-hour ozone National Ambient Air Quality Standard (NAAQS) is defined in 40 CFR 50.9 as 0.12 parts permillion (ppm), not 120 parts perbillion (ppb) as implied bythe
commenter. In other words, the 1-hour

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significant digits and the data handling approach employed to compare ambient air quality data to the 1-hour ozone standard isto round to two decimal places as per the regulations and guidance referenced above.

In the 1990 Amendments to the CAA, Congress expressly provided that "[e]ach regulation, standard, rule, notice, order andguidancepromulgated

orissued by the Administrator under this Act, as in effectbefore the date of the enactment ofthe Clean Air Act Amendments of 1990 shall remain in effect according to itsterms * * *" Thus, under the amended CAA, Congress expressly carried forthEPA interpretations set forthin guidance such as the guideline documents interpreting theNAAQS.

Comment 6

The control strategy submitted in the SIP as developed from the photochemical grid modeling demonstration will not provide for attainment. Response 6

Even though, evidence from the photochemical grid model demonstrates that the control measures submitted in the current SIP may result in exceedances, the demonstration does provide for attainment. An area is considered to monitor attainment if each monitor site has airquality observed ozone design values (4th highest daily maximum ozone using the three mostrecent consecutive years of data)at or below the level ofthe standard. Therefore, it is appropriate for EPA, when making a determination that

a control strategy will provide for attainment, to determine whether or not the model predicted future design value is expected to be at orbelow the level ofthe standard. Since the form ofthe 1- hour NAAQS allows exceedances, it did
not seem appropriate for EPA to require the test for attainment to be "no exceedances" in the future model predictions. The Atlanta demonstration contains adequate measures to reduce the area-wide design value tobelow the level ofthe NAAQS.

The photochemical grid modeling assumed an attainment year of2003. Allowing additional time to redo the modeling for 2004 would not be consistent with the CAA intent that

areas come into attainment as expeditiously as practicable nor would it significantly advance the technical basis for the attainment demonstration. Therefore, EPA agreed that attainment for 2004 could be demonstrated with the submittal ofa 2004 emissions inventory

as a supplement to the 2003 demonstration, providedthat the 2004 emissions are less than or equal tothe level ofemissions used in the modeling. It could then be concluded thatif emissions for 2004 were modeled, the predicted concentrations ofozone would be less than orequal to the 2003 1-hour ozone concentrations modeled. As described below, the state has adequately addressed the differences between the emissions projections for 2003 and 2004.

The Atlanta 1-hour ozone attainment demonstration isbased on photochemical grid modeling and weight ofevidence analyses as recommended in the EPA's guidance for the 1-hour ozone attainment demonstration. Georgia submitted an attainment modeling demonstration supporting the attainment date extension to 2003 for the Atlanta 13- county nonattainment area to achieve the 1-hour ozone NAAQS to EPA on October 28, 1999. EPA proposed to approve the attainment demonstration and an attainment date extension request on the December 16, 1999, in the Federal Register (see 64 FR 70478). The photochemical grid ozone modeling performed for the Atlanta 1-hour ozone nonattainment area isbased on an emissions projection to 2003, the attainment extension year thatthe Georgia Environmental Protection Division (Georgia EPD) requested of EPA in it's October 28, 1999, submittal. OnDecember 16, 1999, EPAproposed approval ofthe 2003 attainment strategy developed withphotochemical grid modeling and the supporting weight of evidence (WOE) analyses. EPA does not agree that errors and deficiencies exist in the 2003-based photochemical modeling to affectits approvability for demonstrating attainment ofthe 1-hour

ozone NAAQS. Detailed information on the 2003 Atlanta attainment photochemical modeling demonstration, the supplemental WOE analysis and EPA modeling requirements are contained in the Technical Support Document for the December 16, 1999, proposal (64 FR 70478). The 2003 modeled control strategy simulations indicate that ozone levels in the Atlanta

area will be significantly reduced when the identified additional controls are implemented. Subsequent to the State's October 1999 submission andEPA's December 1999 proposed approval ofthe Atlanta attainment demonstration, the source compliance date under the NOx SIP Call rule was extended from May 1, 2003 to May 31, 2004. In May 1999, the Court ofAppeals for the District ofColumbia Circuit stayed the obligation of states to submit SIPs in response toEPA's NOx SIP Call rule,pending litigation over the rule. In March 2000, the Court issued an opinion largely upholding the SIP Call rule. In later rulings inthe summer of 2000, the Court lifted the stay ofthe SIP submission obligation, butprovided that since SIP submissions were delayed, EPAcould not mandate that states require sources to comply with stateadopted rulesunder the SIP Call earlier thanMay 31, 2004. Because the attainment demonstration relied on upwind reductions from the NOx SIP Call. Georgia determined thatit could
not attain inthe year preceding the source-compliance date under the SIP and submitted arevised SIP requesting

an attainment date ofNovember 2004.

The revised attainment demonstration submittedby the State onJuly 17, 2001, relies on the photochemical grid modeling that was submitted in October 1999, but provides additional analysis. Although a 2004 attainment year is being proposed for approval for the Atlantanonattainment area because of the upwind contribution, the local controls inthe attainment strategy will allbe implemented no later than May 2003.

The 2004 demonstration isbased on the following procedures. First, the State uses information from the photochemical grid modeling and ambient air modeling to assess whether

or not additional levels ofemission reductions are needed beyond those that

were necessary to demonstrate attainment. This assessment was completed using the emissions projections for 2004. The second part of the analysis involves an assessment of the levels ofattainment emissions for 2004 and whether ornot attainment in 2004 is reasonably likelyto occur. A determination was made thatifthe estimates ofthe projected 2004 emissions with controls implemented

are at orbelow the 2003 modeled levels then attainment by 2004 isreasonably likely to occur.

A comparison ofthe 2003 and 2004 modeling inventories indicate that NO x emissions increase about 2percent over the modeling domain, while VOC emissions decrease over 8 percent. Since the total NOx emissions projected for 2004 are more than the levels modeled for 2003, a demonstration was needed to show whythis would not adversely affect the ability ofthe area to attain the 1-hour ozone NAAQS by 2004. Webelieve thatthe relationship between VOC emission reductions and

ozone concentration reductions and between NOx emission reductions and

ozone concentration reductions canbe determined usingthe photochemical modeling results. Sensitivity analyses 

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from the photochemical modeling in the fine grid were used to develop a relationship to assess thepotential for increases in ozone formation for the emission levels projected for 2004. The majority ofthe local emissions reductions for the attainment strategy

occur within the 4-km fine grid with the exception oftwo power plants near the southernboundary. The sensitivity simulations used were based on the three episode days (i.e., July 31, 1987; August 1, 1987; andJuly 8, 1988) that

were used in the 2003 control strategy simulations. These sensitivity simulations represented modeling scenarios based onreductions across emission inventory categories (e.g., lowlevel source or elevated sources) while holding all other emissions source categories constant. The air-quality-toemission-change ratio (i.e., tons per day ofemissions change per ppb change in ozone) was developed for each day and sensitivity simulation. The average of these ratios over all days and sensitivities was then determined for each pollutant for each episode day.

The submitted ratios indicate that a 41.5 TPD increase in NOx is needed to

cause a 1.0 ppb increase in ozone or a 164.9 TPD increase in VOC is needed to

cause a 1.0 ppb increase in ozone. These relationships were applied to the emissions changes predicted between 2003 and 2004 as presented in Table 1. The tables indicate that NOx emissions

are expected to increase by 12.9 TPD andVOC emissions will decrease by 43.7 TPD in 2004. The NOx and VOC ratios were applied to the emission changesbetween 2003 and 2004 to determine howozone formation would be affected in 2004. This analysis indicated thata 0.3 ppb increase in

ozone from the increase in NOx emissions is offset by the a 0.3 ppb decrease in ozone from the VOC emissions. The identified shortfall gap has thusbeen met by the State and the necessary control measures approved by EPA. Therefore, the assessment supports the conclusion thatthe area will attain the NAAQS in 2004

Comment 7

The Atlanta SIP fails to demonstrate timely attainment through the impermissible use oflinearrollback assumptions to demonstrate attainment under the weight ofevidence approach
to demonstrating attainment. The relative reduction factor (RRF) analysis used to estimate a future design value provides no rational basis for discounting the emissions reductions required bythe Urban Airshed Model (UAM), to show attainment in all grid cells for future predictions for each day modeled. Response 7

Episodic photochemical grid modeling isthe primary basis for the attainment demonstration, asit was used to define the majority ofthe control strategy. However, the modeling and corroborative analyses, which form the basis ofthe weight ofevidence analysis, provide apreponderance of evidence to support EPA's determination that attainment ofthe 1- hour ozone NAAQS will be achieved in 2004. One ofthese WOE analyses involved the use ofa relative reduction factor (derivedfrom the local model results) to determine the level of additional NOx and VOC emissions reductions needed to attain.

EPA has generally relied on photochemical modeling to evaluate the attainment demonstration control strategy, andhas used locally derived adjustment factors as a component to estimate the extent to which additional emissions reductions-not the core control strategy-would reduce ozone levels and thereby strengthen the weight ofevidence test. This limited use of adjustment factors is more technically soundthan the unacceptable use of proportional rollback.The limited use ofadjustment factors is more practical in light ofthe uncertainty in the modeling; the resources andtime required to perform additional modeling; andthe requirement that serious areas perform aprogress check by the end of2003.

The relative reduction factor was used in one WOE analysis to estimate the reductions from additional control

measures inthe weight ofevidence analysis. The 1996 modeling guidance recommends the optional use ofweight ofevidence analysis partly dueto the form ofthe 1-hour ozone NAAQS. The 1-hour ozone NAAQS allows exceedances, and taking modeling uncertainty into consideration, EPAis
not requiring all predicted values in the future model run to be belowthe level oftheNAAQS. The 1996 guidance provides an approach for addressing exceedances (selection ofepisodes representative ofthe areas design value andthe "statistical" test) and the 1999 guidance provides a method for testing whether additional measures, not modeled, are needed (estimate ofa future design value). Since exceedances

are allowed, EPA does not agree that the future modeling shows thatthe area will
not attain. The modeling indicates the

area may experience an exceedance (modelpredictions above the level of the NAAQS) but does not indicate this will leadto a violation (future design value estimate isbelowthe level ofthe NAAQS).

EPA did not rely on "proportional" rollback as defined in Section 14.0 of40 CFR 51 Appendix Wwhich defines "rollback" as "a simple model that

assumes thatifemissions from each

source affecting a given receptor are decreased by the same percentage, ambient air quality concentrations decrease proportionately." The prohibition in section 6.2.1.e of Appendix W (i.e., "Proportional (rollback/forward) modeling is not an acceptable procedure for evaluating

ozone control strategies.") applies to the

use ofarollback method which is empirically/mathematically derived and independent ofmodel estimates or observed air quality and emissions changes as the solemethod for evaluating control strategies. Inthis
case, EPA used alocally derived as determined by the model, relative reduction factor to estimate afuture design value and then used observed changes in air quality (i.e.,ratio of change in emissions to change in ozone)
to estimate additional emission reductions to achieve an additional increment ofambient improvement in

ozone. This did assume alinear relationship between the precursors and

ozone for determining additional reductions needed for small improvements in ozone.

In 1999, EPA issued additional guidance (hereafter, the 1999 guidance) 1that makes further use of model results for base case andfuture emission estimates to predict afuture design value. This guidance describes the use ofan additional component of the WOE determination, which requires, under certain circumstances, additional emission reductions that are or will be approved into the SIP,but that were not included in the modeling analysis, that will further reduce the modeled design value. An area is considered tomonitor attainment ifeach monitor site has air quality observed ozone design values (4thhighest daily maximum ozone using the three most recent consecutive years ofdata) at or belowthe level ofthe standard. Therefore, itis appropriate for EPA, when making a determination that

a control strategy will provide for attainment, to determine whether or not the model predicted future design value

"Guidance for Improving Weight ofEvidence Through Identification ofAdditional Emission Reductions, NotModeled." U.S. Environmental Protection Agency,Office ofAirQuality Planning and Standards, Emissions, Monitoring, and AnalysisDivision, AirQuality Modeling Group, Research Triangle Park,NC 27711. November 1999. Web site: http://www.epa.govlttnlscram. 30580

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is expected to be at orbelow the level ofthe standard. Since the form ofthe 1- hour ozone NAAQS allows exceedances, itdid not seem appropriate for EPAto require thetest for attainment to be "no exceedances" in the future model predictions. The method outlined in EPA's 1999 guidance uses the highest measured designvalue from all sites in the nonattainment area for each ofthree years. The three year "design value" represents the air quality observed duringthe time period used to predict

ozone for the base emissions. This is appropriate because the model is predicting the change in ozone from the base period to the future attainment date. The three yearly design values (highestacross the area) are averaged to account for annual fluctuations in meteorology. The result is an estimate of

an area's base year design value. The base year design value is multiplied by

aratio ofthe peak model predicted

ozone concentrations in the attainment year (i.e., average ofdaily maximum concentrations from all days modeled)
to thepeak model predicted ozone concentrations in the base year (i.e., average ofdaily maximum concentrations from all days modeled). The result is an attainment year design value based on the relative change in peak model predicted ozone concentrations from the base year to the attainment year.

In the event thatthe attainment year designvalue is above the standard, the 1999 guidance provides a method for identifying additional emission reductions, not modeled, which at a minimum provide an estimated attainment year designvalue at the level ofthe standard. This step uses a locally derived factor which assumes a linear relationship between ozone and the
precursors. This isthe WOE analysis used by the State to determine additional reductions needed for attainment beyond those modeled. It incorporates the analysis used in the RRF analysis. The regulations do not mandate ornor does EPA guidance suggest that States must model all control measures being implemented. Moreover, a component ofthis technique, the estimation offuture designvalue, should be considered a model predicted estimate. Therefore, results from this technique are an extension of"photochemical grid" modeling and are consistent with Section 182(c)(2)(A).

Comment 8

The Atlanta SIP fails to demonstrate attainment by averaging the emissions reductions required for different atmospheric episodes to determine reductions needed to attain at specific monitoring sites, and averaging between monitoring sites to support a weight of the evidence analysis. Response 8

The commenter is concerned that calculating the RRF byaveraging across episode days is notjustifiedby sound science. When developing the 1999 guidance, EPA considered the use of day specific RRFs versus an average RRF acrossthe days. Itwas determined that due to day to dayvariability in

ozone concentrations there is more uncertainty in the day specific RRFs, than the RRF calculated byaveraging

across days. Therefore this approach reduces the impact ofa single day and the uncertainty associated with the calculation ofthe estimated future design value. Since the goal was to estimate afuture design value (which allows exceedances), EPA used the average across days. This approach demonstrates future design values below theNAAQS, not day specific predictions belowthe NAAQS. EPA did estimate an area-wide future design value based onthe area's worst design value, instead ofsite specific future design values as recommended in the EPA's 8-hourmodeling guidance. Site specific estimates would provide more information on the spatial variability in the future estimates. However, we have

seenfrom other analyses that other sites typically respond in the same manner as the worst site. The episodes modeled in the attainment demonstration represent the most severe days andhighest ever monitored ozone concentration from the three most common meteorological regimes (i.e., stagnation, northwest winds, and the worst case ofall other meteorological conditions combined) observed in the Atlanta monitoring network. The guidance does not require that an area demonstrate no exceedances for these severe days,but rather for those days that are representative ofthe area's design value. It is likely that the model could have predicted lower ozone values for the future scenarios ifmore representative episodes had been modeled.

Comment 9

Failure to consider the implications of uncertainty in results precludes demonstration ofattainment. Response 9

EPA considers uncertainty as the "notion thatmodel estimates will not perfectly predict observed air quality at each receptor location, neither nownor in the future." 2 A great deal of variability in the model estimate is possible from day to day. This variability is in part due tothe use of different days, limits on model formulation, limits on understandings of the problem tobe modeled,database limitations, uncertainties in forecasting emissions. Some ofthis variability can be investigated through the use of diagnostic tests which describe alternate, yet highly,plausible variations in the input estimates for wind fields, emission, andmodeling methods for chemistry, transport algorithms, removal processes, and numerical routines. Forthese reasons, EPArecommends that a model performance evaluation be conducted, using graphical and statistical measures, to determine howthe model replicates historical ozone events. The state developing the attainment demonstration needs to verify thatthe model is properly simulating the chemistry and atmospheric conditions through diagnostic analyses and model performance tests. Once these steps are satisfactorily completed, the model is ready tobe usedto generate air quality estimates to support an attainment demonstration. EPAdoes not require a rigid criterion for model performance, similar to the 95% certainty level cited by the commenter to be used in a pass/ failtest. However, certain statistical parameters are recommended tobe developed. Statistical performance

measures are recommended to assess whether or not the model evaluation is acceptable.3 The three primary statistical measures calculated, and the EPArecommended "acceptability"
ranges usedin the SIP are unpaired accuracy ofthe peak (EPAgoal: within

+ 15-20 percent), andthe mean relative

error (EPAgoal: within+ 5-15 percent,

mean unsigned relative error (EPAgoal: 30-35 percent). Ifa state develops an attainment demonstration that indicates acceptable model performance according to the UAM guidance, EPA allows the State to use that model, inputs, and projected emissions to develop an attainment strategy.

2"Draft Guidance on theUse of Models and other Analyses inAttainmentDemonstrations for the 8- HourOzoneNAAQS." U.S. Environmental Protection Agency,Office ofAirQuality Planning and Standards, Emissions,Monitoring, and AnalysisDivision, AirQuality Modeling Group, Research Triangle Park,NC 27711. May 1999. Web site:http://www.epa.govlttnlscram.

3"Guideline forRegulatory Application of the UrbanAirshed Model." U.S. Environmental Protection Agency,Office ofAirQuality Planning and Standards, Emissions, Monitoring, and AnalysisDivision, AirQuality Modeling Group, Research Triangle Park,NC 27711.July 1996. Web site:http://www.epa.govlttnlscram. 30581

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Although there are uncertainties associated with the model outputs, it

can stillbe used to support an attainment demonstration and make use ofthe RRF analysis as part ofthe weight ofevidence.

As calculated, the RRF negates some ofthe model uncertainty. The same modeling assumptions and meteorological inputs are used for the base year and future year model simulations (onlyemissions change). Thus to some degree simulated ozone concentrations forboth the base year andfuture year show similar bias (both magnitude and direction). This model bias is eliminated when the RRF is calculated. Since the RRF isa ratio, the bias in the future year concentration (numerator)is canceled by the bias in the base year concentration (denominator). This ratio isthen multiplied by the areas observed design value to estimate a future design value. Since in mostcases, uncertainties associated with observations are negligible compared to the uncertainties associated with the modeled ozone concentrations, the resulting future designvalue is a reasonable prediction offuture air quality which accounts for uncertainty in day specific model predictions. Therefore, when the RRF is applied to the observed ozone design value concentration, values below the standard indicate attainment is likely to be achieved.

Comment 10

Commenters object to the arbitrary and capricious use ofMOBILE5 to estimate motor vehicle emissions which has been shown to significantly underestimate motorvehicle emissions.

The tool used to estimate motor vehicle emissions for the attainment demonstration isthe MOBILE model. The accuracy ofthis estimate is critical because, as demonstrated by Table 1in the notice, on-road sources account for 53 percent ofthe total NOx emission inventory, and 35% ofVOCs for the nonattainment area. MOBILE5 was used
to estimate motor vehicle emissions in the region for the attainment demonstration. The commenter believes the vehicle emissions are underestimated and shouldhave been

run using MOBILE6. Response 10

As noted in theJanuary 18, 2002 Memorandum titled, "Policy Guidance

onthe Use ofMOBILE6 for SIP Development and Transportation Conformity," the CAArequires that SIP inventories and control measures be based onthe mostcurrent information available and applicable when a SIP is developed [Section 172(c)(3) ofthe CAA and40 CFR 51.112(a)(1)]. However, as noted in the answer tothe first question in that document, "EPA believes that the CAA would not require states that have already submitted SIPs or will submit SIPs shortly afterMOBILE6's release to revise these SIPs because a

new motor vehicle emissions model is

now available." This concept was reiterated in the January 29, 2002, Federal Register notice announcing the approval and availability ofMOBILE6 for use in SIPs and conformity determinations. Use ofthe MOBILE6 model for SIP development was not allowed before theJanuary 29, 2002 Federal Register notice. Asthe Atlanta attainment demonstration was submitted onJuly 17, 2001, andthe MOBILE modeling was performed prior
to that date, MOBILE5 had to be used

asMOBILE6 was not yet approved for

use in SIP development.

It should also be noted that atthe time ofthe development ofthe Atlanta attainment demonstration changes were being made to the various draft versions oftheMOBILE6 model as problems

were detected in testing the drafts. Since the MOBILE6 model was not available when the Atlanta SIP was developed EPA concludes that itwas appropriate
to develop the SIP with the MOBILE5 model. In addition, changes in emission
rate estimates, as compared to those modeled with MOBILE5, are area specific. Therefore, the exact effect in Atlanta cannot be determined until MOBILE6 is run with area specific data. EPA can not nowpredict whether the MOBILE6 model will produce lower or higher emissions for the attainment year for Atlanta.

Comment 11

Commenters object to taking credit for expected reductions in motor vehicle emissions from the PSG that have not occurred, are not being demonstrated,

are not enforceable andmay not be reasonably expected. Response 11

The Voluntary Mobile Source Emission Reduction Policy is designed
to encourage innovation in airpollution control without the typical regulatory hammer used to enforce against stationary sources. The policy allows a state totake a small amount ofcredit for reasonably expected emission reductions. The reasoning shouldbe based onhistorical trends or other methodologies or commitments to meet certain goals. In addition,the State must committo monitor, evaluate, and reconcile any emissions reduction shortfall from suchprograms in a timely manner. In the case ofthe PSG program, the State demonstrated that trends with the PSG program show thatithas the potential to achieve the emission reductions claimed. Furthermore, the
state committed to specific targetlevels

or participants and corresponding emission reductions. Should the target levels not be met,the state is responsible forthe shortfall and must make up the shortfall through other

measures. Enforcement ofthese

measures is available underthe SIP against the State shouldit not timely reconcile any emission reduction shortfall. Based on this information, EPAdetermined thatthe expectations of the PSG program are reasonable and that there are enough evaluation periods to

assure thatthe 2004 emission reductions goals are met.EPA does not believe thatthe PSG program shouldbe considered aspart ofthe additional WOE and did not consider itin the WOE evaluation. See 66 FR 57159, 57190 (November 14, 2001) forfurther information.

Comment 12

EPA's basis for allowing Georgia to reject mostofthe control measures reviewed for RACM is arbitrary and capricious, and not supported by law. Comments submitted to EPA in
response the Agency's supplemental RACM notice in October 2000 were incorporated by reference. In that proposal, EPA confirms Georgia's assertion thatnot a single additional control measure was reasonably available over the nextfive years to address ozone pollution inthe Atlanta

area. Such an extreme position is neither consistent with the CAAnor supported bythe record.

Comment 13

EPA acknowledged that additional

measures were available to reduce

ozone levels in the Atlanta area,but

were not "reasonably available" within the meaning ofthe statute because they purportedly would not advance the date offull attainment. EPA asserted thatthe RACM mandate was part ofthe CAA's requirement thatplans demonstrate attainment "as expeditiously as practicable," and that itwould be unreasonable to require measures that do not advance the attainment dateevenifthose measures would reduce harmful ozone levels in the interim. The Agency's position conflicts with the CAA's requirement to adopt all RACM in addition to the requirement for timely attainment andfor the SIP to eliminate

or reduce the severity and number of violations ofthe NAAQS. These provisions require ozone SIPS to 30582

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demonstrate attainment ofthe ozone standard "as expeditiously as practicable, but no later than" area's attainment date. 42 U.S.C. §§ 7511(a)(1), (c)(2)(A). EPAwrongly presumes that the sole purpose ofSIPs isto achieve full attainment by the deadline, and that healthier air in the interim is irrelevant. This conflicts with the CAA's public health purpose. The CAA's mandates for interim progress in years prior to attainment to provide air quality benefits well in advance offull attainment. The State concedes that

some additional control measures not rejected on other grounds will reduce NOx and VOC emissions, but rejects

eventhose measures on the ground that they will not advance attainment. EPA inexplicably insists that such controls

are not "reasonable" unless they solve the whole problem. Such a position conflicts with CAA's text and purpose andlacks any rational basis.

Comment 14

Neither the State nor EPAhas quantified the level oflocal emission reductions thatwould be needed to advance the attainment date. EPA may not reasonably conclude that sufficient control measures are not available to satisfy this test until itfirst determines the amount ofemission reduction needed to meet this requirement, and then determines thatmeasures considered by the State and other

measures proposed by other stakeholders and not considered by the State, do not achieve sufficient reductions tomeet this test.To show the actual impact ofadditional controls on air quality, EPAwould need to conduct photochemical grid modeling. Instead, EPA has estimated the ambient impact ofthe emissions reductions expected from the small suite ofmeasures not rejected by Georgia, and applied the absurd ratio of 1ppb to 41.5 t/d NOx discussed above to show thatno air quality benefit would result. This approach is arbitrary for several reasons.

EPA failed to consider the potential emission reduction benefits ofall ofthe available measures. EPA further failed
to consider potential ozone reduction benefits from the combined implementation of strategies to reduce overall motor vehicle traffic ("transportation control measures" or "TCMs"). EPArefused to consider the potential emission reduction benefits of suchcombined implementation, asserting that it "would be impossible to analyze a seeming infinite set of combinations ofmeasures for possible benefits."

Absent a constitutional prohibition against the implementation ofsuch measures, there is no legal barto the consideration ofsuch measures. Nor

were these measures considered in the 1997 Georgia State report since federal
tax laws supporting such strategies had
not yetbeen enacted, and the measures had not been tried in other states and shown to be effective. The analysis provided by the State is wholly inadequate with respect to considering the cumulative effect on travel demand and SOVuse in the Atlanta area ifan aggressive, and comprehensive Commuter Choice program were developed and implemented in the region.

Given EPA's issuance ofGuidance to the States supporting the development ofsuch programs, it is especially unreasonable for EPA not to require that the air qualitybenefits of such a program be fully characterized and considered for adoption as a reasonably available control measure. Response 12, 13, and 14

Georgia EPD performed a RACM analysis for potential control ofNO x andVOC emission sources not included in the attainment demonstration for the Atlanta 1-hour ozone nonattainment

area.Each control option was evaluated according to: (1)The State's authority to implement controls; (2)the amount of NOx reductions; (3)the amount ofVOC reductions; (4) whether a similar control

measure is already being implemented in the SIP; (5)the cost effectiveness of the control; (6) whether SIP credit has alreadybeen taken for the measure; and (7)whether the measure can be implemented to achieve reductions duringthe 2003 ozone season, (measuresimplemented after the 2003

ozone season cannot advance the 2004 attainment date). Any measures determined to be feasible toimplement afterthe above described evaluation

were grouped, byprimary category, under the heading "Remaining measures.". After further analysis of potential controls on each ofthe above
sources, GAEPD concluded thatit was not reasonable or practicable to further control these sources. Specifically, for many ofthe sources GAEPD stated that the time required to implement controls is unpredictable because legislative action authorizing suchregulation by GAEPD would be required, or the number offacilities andpotential discharge points affected bythese control measures would require a tremendous increase in GAEPD

resources to implement and ensure compliance (see 66 FR 63982 for further information.). Therefore, GAEPD concluded that these measures could
not be implemented in time to achieve reductions by 2003. EPA agrees with the RACM analysis.

The EPA's approach toward the RACM requirement is grounded in the language ofthe CAA. Section 172(c)(1)
states that a SIP for a nonattainment

area must meetthe following requirement, "In general.-Such plan provisions shall provide forthe implementation ofallreasonably availablecontrolmeasuresas expeditiouslyaspracticable (including suchreductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, ofreasonably available control technology) and shallprovide forattainmentofthenational primary ambientairqualitystandards." [Emphasis added.] The EPAinterprets this language as tyingthe RACM requirement to the requirement for attainment ofthe national primary ambient air quality standard. The CAA provides thatthe attainment date shall be "as expeditiously as practicable but

no laterthan * * *" the deadlines specified in the CAA. EPAbelieves that the use ofthe same terminology in conjunction with the RACM requirement serves the purpose of specifying RACM as the way of expediting attainment ofthe NAAQS in advance ofthe deadline specified in the CAA. As stated in the "General Preamble" (57 FR 13498 at 13560, April 16, 1992), "The EPAinterprets this requirement to impose a duty on all nonattainment areas to consider all available control measures and to adopt and implement such measures as are reasonably available for implementation in the area ascomponentsofthearea's attainmentdemonstration."[Emphasis added.] In other words, because ofthe construction ofthe RACM language in the CAA, EPA does not viewthe RACM requirement as separate from the attainment demonstration requirement. Therefore, EPA believes that the CAA supports itsinterpretation thatmeasures maybe determined to not be RACM if they do not advance the attainment date. In addition, EPAbelieves that it would notbe reasonable to require implementation ofmeasures thatwould
notin fact advance attainment (see 57 FR 13560). EPAhas historically taken this interpretation and consistently implemented it throughguidance since 1979 (see 44 FR 20372, 20375, April 4, 1979).

The term "reasonably available control measure" isnot actually defined in the definitions inthe CAA. Therefore, the EPA interpretation thatpotential

measures maybe determined not to be RACM iftheyrequire an intensive and costly effort for numerous small area 30583

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sources isbased on the common sense meaning ofthe phrase, "reasonably available." A measure thatis reasonably available is one thatis technologically and economically feasible andthat can be readily implemented. Ready implementation also includes consideration ofwhether emissions from small sources are relatively small andwhether the administrative burden,
to the States and regulated entities, of controlling such sources was likely to be considerable. As stated in the General Preamble, EPAbelieves that States can reject potential measuresbased on local conditions including cost. 57 FR 13561.

Also, the development ofrules for a large number ofverydifferent source categories ofsmall sources for which little control information may exist will likely take much longer than development ofrules for source categories for which control information exists orthat comprise a smaller number oflarger sources. The longer thetime frame for development ofrules by the State would decrease the possibility that the emission reductions from the additional rules in the nonattainment

area would advance the attainment date earlierthan would be achieved from the larger amount ofreductions expected from upwind controls, such as from the NOx SIP Call and controls from upwind

severe areas with later statutory attainment dates.

Commenter's argument thatthe RACM requirement requires interim reductions in addition to the duty to demonstrate timely attainment is incorrect. Although various CAA provisions do require interim reductions, see, e.g., sections 7502(c)(2), 7511a(b)(1) and (c)(2)(B), nothing in the CAA indicates that areas must use the

measures required by section 7502(c)(1)
to reach these interim goals. Instead, the RACM provision in section 7502(c)(1) refers only tothe obligation to demonstrate timely attainment. EPA reasonably concluded that interim reduction requirements couldbe metby any measures selectedby the states, and that section 7502 requires implementation in areas that have met RFP requirements only ifsuch reasonably available control measures as will provide for timely attainment ofthe NAAQS. As noted above, Atlanta has
met its 15 percent and 9 percent ROP requirements.

Another appellate courtrecently upheld EPA's interpretation ofthe corresponding RACM provisions for particulate matter (PM-10)in section 7513a(a). Oberv. Whitman, 243 F.3d 1190 (9th Cir. 2001). There, EPA applied

atwo-part test in determining whether controls on certain sources ofde minimis PM-10 emissions would need
to be implemented asRACM-looking first atthe actual amount ofemissions andthen atwhether control ofthose emissions would contribute to attainment as expeditiously as practicable. Id.at 1193, 1196. The court upheld EPA:

Using the [attainment] deadline to determine whether controls must be imposed makes sense. The deadline is
not an arbitrary date unrelated to air quality concerns. * * * In this case, the [plan] concludes thatthe deadline will
not be met evenifthese small sources ofPM-10 were controlled. Under those circumstances, it isreasonable to decline to control the de minimis

sources ofpollution.

Id.at 1198. EPAreasonably concluded here that section 7502(c)(1) similarly does not require implementation ofmeasures that will
not contribute to attainment as expeditiously aspracticable.

Comment 15

The State does not include any ofthe

measures required for severe areas. In view ofits bump-up to severe by operation oflaw, the SIP must include the measures required by section 182(d), including reasonable further progress reductions for the years after 1999. Response 15

As noted in theresponse to comments 2-4, no bump-up by operation oflaw occurred dueto any purported failure to submitthe appropriate milestone compliance demonstration.

Comment 16

The Atlanta SIP fails to include the contingency measures required by section 172(c)(9) and 182(c)(9). This proposal isunlawful because it
proposes torely on excess emissions reductions that donot exist, and relies

onfederal measures not dependent on the attainment status ofthe nonattainment area. Response 16
Section 172(c)(9) and 182(c)(9) ofthe CAA require SIPs to contain additional

measures thatwill take effect without further actionby the state or EPAifan

area fails to attainthe standard by the applicable date or tomeet rate-ofprogress (ROP) deadlines. The CAA does not specify howmany contingency

measures are needed or the magnitude ofemissions reductions thatmust be provided by these measures. However, EPA provided guidance interpreting the control measure requirements of 172(c)(1) and 182(c)(9) in the April 16, 1992, General Preamble for Implementation ofthe CAA (see 57 FR 13498, 13510). In that guidance, EPA indicated that states with moderate and above ozone nonattainment areas should include sufficient contingency

measures so that,upon implementation ofsuch measures, additional emissions reductions ofup to 3percent ofthe emissions in the adjusted baseyear inventory (orsuch lesser percentage that will cure the identified failure) would be achieved in the year following the year in which the failure has been identified. States must show that their contingency measures canbe implemented with minimal further action ontheir part andwith no additional rulemaking actions such as public hearings or legislative reviews. The additional 3percent reduction would ensure that progress toward attainment occurs at a rate similar to that specified under the reasonable further progress requirements for moderate areas (i.e., 3percent per year), and thatthe state will achieve these reductions while conducting additional control measure development and implementation as necessary to correct the shortfall in emissions reductions.

EPA has also determined that promulgated federal measures canbe usedto analyze whether the contingency measure requirements of section 179(c)(9) and 182(c)(9) have been met. While these measures are not SIP-approved contingency measures which would apply ifan area fails to attain, EPAbelieves that existing federally enforceable measures canbe usedto provide the necessary substantive relief.Therefore, federal

measures maybe usedin the analysis,
to the extentthat the attainment demonstration does notrely on them or take credit for them (see, e.g., 66 FR 586, 615, January 3, 2001, andthe memorandum from G.T. Helms dated August 13, 1993, "Early Implementation ofContingency Measures for Ozone and Carbon Monoxide Nonattainment Areas".)

EPA believes the contingency

measure requirements ofsections 172(c)(9) and 182(c)(9) are independent requirements from the attainment demonstration requirements under sections 172(c)(1) and 182(c)(2)(A) and the ROP requirements under sections 172(c)(2) and 182(c)(2)(B). The contingency measure requirements are to address the event that an area fails to meet a ROP milestone or fails to attain the ozone NAAQS by the attainment date established in the SIP. The contingency measure requirements have

nobearing onwhether a state has submitted a SIP that projects attainment ofthe ozone NAAQS orthe required 30584

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ROP reductions toward attainment. The attainment or ROP SIP provides a demonstration that attainment orROP requirements ought tobe fulfilled, but the contingency measure SIP requirements concern what isto happen onlyifattainment or ROP isnot actually achieved. The EPA acknowledges that contingency measures are an independently required SIP revision, but does notbelieve thatsubmission of contingency measures is necessary before EPA may approve an attainment

orROP SIP. However, EPAbelieves that

areas should have sufficient reductions
to meet contingency measure requirements, even ifa contingency

measure SIP has not been approved, in order to receive an attainment date extension.

EPA has examined the 15 percent ROP and 9 percent ROP plans which

were submitted to EPA on June 17, 1996. EPAbelieves that substantive contingency measure requirements can be met by surplus reductions already achieved in the ROP plans. EPAgranted approval to the 15 percent ROP in a Federal Register published onApril 26, 1999, (64 FR 20186). The 9 percent ROP

was approved in a Federal Register published onMarch 18, 1999, (64 FR 13348). Detailed information relating to the calculation ofGeorgia's 1990 adjusted baseline inventory for VOC and NOx emissions for the Atlanta area can be found in the above referenced Federal Register actions. The adjusted baseline inventory for VOC found in Georgia's 15 percent ROP is 526.19 tpd andthe adjusted baseline inventory for NOx found in the 9 percent ROP is 483.12. Therefore, the required 3 percent ROP reductions would be 15.79 tps for VOC (0.03 x 526.19 = 15.79) and 14.50 tpd for NOx (0.03 x 483.12 = 14.5). In the 15 percent ROP Georgia exceeds the required VOC emissions reduction by 1.06 tpd. This equates to 0.20percent ofthe required 3percent reduction, leaving abalance of2.80 percent tobe made up by NOx reductions. This must be 2.8 percent of the NOx adjusted baseline inventory. Therefore, the required NOx reductions
to satisfy contingency requirements for ROP equal 13.53 tpd (0.0280x 483.12). The 9 percent ROP achieves an excess NOx emissions reduction of 19.47 tpd. Thus, the excess emission reductions achieved in the ROP plans meet the 3 percent contingency requirement.

Additionally, EPA examined the attainment demonstration for the Atlanta area submitted on July 17, 2001, for contingency measures. Although no

measures have been specifically designated as contingency measures, EPA has found that measures that could reasonably constitute appropriate contingency measures are already contained in the SIP or exist in promulgated federal regulations. These

measures include additional reductions after 2004 from EPA's Tier 2tailpipe standards, national low emission vehicle program, andheavy duty diesel emission standards for 2004. Additionally, the Atlanta area will benefit from fleet turnover, as well as an additional model year oflight duty vehicles subject to on-board diagnostic (OBD) testing. These measures will continue to provide reductions after November 2004, the attainment date EPA is approving for the Atlanta area. The measures are estimated to reduce emissions in the area by 1.45 percent of the 1990 VOC adjusted baseline emissions and 3.31 percent ofthe 1990 NOx adjusted baseline emissions by 2005 (theyear following the timeby which EPAmust determine whether the

area has attained). More details on EPA's contingency measure analysis are included in the docket for this rulemaking action. While there is not an approved contingency measure that would applyifthe Atlanta area failed to attain, EPAbelieves that existing federally enforceable measures would provide the necessary substantive relief sufficient to provide the basis for granting an extension to the area's attainment date. These federally enforceable measures were not accounted for in GAEPD's modeling and

are therefore excess emission reductions.

Comment 17

The commenter believes that Georgia's Offset Rule is notbeing implemented in such a way asto provide for zero growth. Response 17

The facility in questionis one ofa group ofelectric generating utilities that

are subject to a special 7-plant average emissions limit. Arevised application from the facility dated December 21, 2001, proposed an overall ton per ozone

season limit for all ofthe companies' facilities subject tothe 7-plant average. These limits willbe placed in the facility's permits. Total emissions for the seven plants will not increase, and in fact, due to the earlyreductions and offset credit, will decrease. Itis possible that some individual units may experience an increase in emissions, andhypothetically, these units couldbe located in the Atlanta non-attainment

area. It is alsopossible thatthe units in the nonattainment area couldbe the

ones experiencing the decreases in emissions. EPD's assumption ofzero growth is reasonable, given that (1) overall emissions for the sevenplants will decrease; (2)exact locations ofthe decreases and increases were unknown
atthe time ofthe SIP demonstration and

are still unknown today; (3)emissions from 2003 to 2004 for counties outside the non-attainment were calculated to reflect growth but may, due to the 7- plant limitmentioned above, experience

a decrease in emissions; and (4) zerogrowth in the 13-county non-attainment

area was assumed only between 2003 and 2004. In fact, emissions were grown from 1999 to 2003, aperiod where zerogrowth is expected due to the offset rule, making the assumption ofzero growth a very conservative one.

In the future, Georgia EPD will continue to implement its Offset Rule in

a mannerthat no leakage will occur, resultingin zero-growth or a decrease in emissions.

Comment 18

ARTBA supports approval ofthe attainment demonstration for the Atlanta area because approval is the onlyreasonable action.
Response 18

EPA agrees with the commenter.
Comment 19

Reclassification to severe nonattainment would not shorten the timefor meeting Atlanta's air quality goals. In fact,it would extend the time for compliance to at least 2005. Regardless ofwhether EPAgrants an extension pursuant to the downwind extension policy, EPAis prohibited fromreclassifying the Atlanta area under Subpart 2ofthe federal CAA. Under 42 U.S.C. 7509(c), an area canbe reclassified only ifEPAmakes aformal finding "[w]ithin 6 months following the applicable attainment date" thatthe

area failed to attainthe ozone NAAQS. EPAdid notmake such a determination within six months ofthe nominal 1999 attainment deadline for the Atlanta area, and thus is now prohibited from doing SO. Response 19

EPA is not reclassifying the area at this time, butrather isgranting an extension ofthe area's attainment date
to November 2004. EPA agrees that reclassification mustbe based on a notice and commentrulemaking. See D.C. Circuit Slip opinion SierraClubv. WhitmanNo. 01-5123 and 015299 April 5, 2002, Slip Opinion (D.C.Cir). EPA has not yet issued a rulemaking containing a final determination of whether Atlanta attained byits 30585

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attainment date. EPAdoes not agree, however, thatmissing a mandatory deadline means thatEPA loses the
power to act to discharge the duty to which the deadline applied. EPA retains the power to actto discharge the duty afterthe deadline has passed. SouthwesternPennsylvaniaGrowth Alliancev. Browner,121 F.3d 106, 113- 114 (3d Cir. 1997). (EPA does not lose
power toperform mandatory duty to act

onredesignation request after 18-month statutory period has elapsed).

As noted in theresponse to comments 2-4, no bump-up by operation oflaw occurred due to any purported failure to submitthe appropriate milestone compliance demonstration.

Comment 20

ARTBA recognizes thatinterest groups have threatened legal challenges ofboth the EPA extension policy and the proposed attainment demonstration for Atlanta. EPA should not allow the threat oflegal challenge to cloud its judgment in approving this attainment demonstration. The practical effect ofa legal challenge for the Atlanta transportation planners would be for the
current transportation plan (at the time ofinvalidation) to remain in place because legal challenges would not have

aretroactive effect. In the alternative, a disapproval and reclassification ofthe nonattainment area by EPA might cause air quality goals and transportation plans to be delayed because itwould force Atlanta to develop a new state implementation plan and may require
current transportation plans to shift to achieve conformity. Response 20

EPA agrees with many ofthe
comments made by the Commenters that correctly point out certain provisions in the conformity rule. However, several ofthe comments are taken outofcontext. The commenter notes that40 C.F.R. §93.118(e)(3) and proposed rule changes (see 66 FR 50954 and 50958, October 5, 2001) provide any finding ofconformity for transportation plans ortransportation improvement programs (TIPs)to a motorvehicle emissionbudget (MVEB), prior to an invalidation ofa state implementation plan (SIP) containing that MVEB, would continue to be valid. The commenter further states, "As a policymatter, itis

common sense for projects in an approved transportation improvement program to proceed, even when a SIP is subsequently invalidated, because those projects have been deemed by the state andregional planner tobe essential in improving air quality, reducing congestion, improving mobility and access, and/orpreventing traffic fatalities." This statement, however, is
not correct. This rule provision recognizes that at some point the planning process must proceed, and recognizing that atthe time the transportation plan andTIP were developed and approved, the latest applicable MVEB was used. However, the SIP containing thebudget is subsequently disapproved (without a protective finding on thebudget), only those projects in the first three years of the TIP, exempt andTransportation Control Measures in approved SIPs can proceed. This provision allows for recognition ofthe cost and resources expended by the transportation planners
to this point in the process. Contrary to the commenter's statement,it does not imply that even ifa SIP becomes invalid that the reason projects can proceed is because they were deemed to be essential bythe state andregional planner.

The commenter also states, "In the

case ofAtlanta, its conformity determination would remain valid, if approved based on the January 8, 2002, adequacy determination or based on approval ofthe attainment demonstration at issue in the current rulemaking, regardless ofany future SIP withdrawal orinvalidation, until conformity would have otherwise lapsed of due course pursuant to EPA regulations at 40 C.F.R. §93.104." The
current 2025 transportation plan andFY 2002-04 TIP for Atlanta, Georgia were found in conformity to the 15 percent and 9 percent rate ofprogress SIP MVEBs. These were the latest approved budgets in the SIP at the time of transportation plan andTIP approval. The January 8, 2002, finding of adequacy is onthe 1-hour attainment SIP. Presently, no finding ofconformity has been made for this or any other attainment MVEB. While the conformity rule requires 18 months to redetermine conformity to thebudget found adequate on January 8, 2002, this action has not yet occurred. The dateby which the conformity redetermination for the

new budget must be completed for the transportation plan andTIP would likely be 18 months from the date ofthe finding ofadequacy on the budget. (EPA'sproposed rule change, dated October 5, 1999, would startthe 18- month trigger on the date ofadequacy for anew SIP budget versus the date of

a SIP submittal as currently required. Per this rule, a new SIP budget refers to

an initial SIP submission for a given CAA requirement.)

Another statement made by the
commenter refers directly to the 18- month clock to re-determine conformity. It stated (reference to the October 28, 1999, SIP and itsbudget), "Although this motorvehicle emissions budget was laterwithdrawn, conformity was determined within the required 18- month period. Any subsequent adequacy determination on a resubmittedbudget would not be an initial SIP submission and would not trigger the 18-month "conformity clock'." This statement is incorrect. First, no finding ofconformity to the 1999 SIP budget was evermade. In addition,the purpose ofthe 1999 SIP submission was to demonstrate attainment by 2003. Because ofa court decision regarding the nitrogen oxides SIP, the state developed and submitted

a new SIP for the purpose of demonstrating attainment by 2004. Since conformity was never done to the 2003 attainment SIP and that SIP has sincebeen replaced, the 2004 attainment SIP is considered an initial submission. Therefore, it started anew 18-month conformity schedule. When the 1999 SIP was withdrawn, the 18- month conformity schedule for that SIP

was no longer applicable. When the new SIP was submitted inJuly 2001, anew 18-month conformity schedule began. Therefore, under the 18-month schedule for redetermining conformity to the MVEB inthe July 2001 SIP (with an attainment date of2004), the deadline is likely tobe July 2003. (EPA's proposed rule change, dated October 5, 1999, would start the 18-month trigger on the date ofadequacy for anew SIP budget

versus the date ofa SIP submittal. Should this rule be finalized, conformity willbe required to the budget found adequate inJanuary 2002 by July 2003.) Currently, a transportation planis under development, with a schedule for adoption and conformity redetermination in late 2002. This action is intended to satisfy the 18- month conformity schedule for redetermining conformity to the most
recent applicable SIP MVEB.

EPA does agree that the area should attain as expeditiously aspracticable. However, EPAbelieves this can best be achieved byimplementation ofthe submitted control strategy. Therefore, EPAintends to approve the 1-hour

ozone attainment demonstration for the Atlanta area. 30586

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Response to CommentsReceived Relatingto theProposed RulePublished in theFederal RegisteronDecember16, 1999, See 64FR 704787,StillRelevant
to Today'sAction

Comment 1

There is no evidence in the submittal that the Governor has endorsed the SIP

asrequired by40 CFR 93.118(e)(4)(i).
Response 1

According to 40 CFR 93.118(e)(4), EPA will not find a motor vehicle emissions budget in a submitted control strategy implementation plan revision

ormaintenance plan to be adequate for transportation conformity purposes unless the following minimum criteria

are satisfied:

(i) The submitted control strategy implementation plan revision or maintenance plan was endorsed by the Governor (orhis designee) and was subject to a State public hearing.

The Georgia Air Quality Act, Article 1,Section 12-9-6 "Powers and Duties ofDirector as to Air Quality Generally" designates the Director ofthe Environmental Protection Division of the Department ofNatural Resources of the State ofGeorgia to exercise general supervision over the administration and enforcement ofthis article and all rules, regulations, and orders promulgated under this article. The motorvehicle emissions budget was the subject of public hearings held onJuly 7, 1999, and September 8, 1999. The October 1999 State Implementation Plan (SIP) and subsequent supplemental SIP revisions were submitted via letter from Mr. Harold F. Reheis, the current Director ofthe Georgia Department of Natural Resources.

Comment 2

Commenter believes Georgia should increase information to the public on air quality. Commenter believes thatyear round data collection andmore public information in a consumer friendly index format (e.g. UV index or other meteorological information) would help all citizens understand their risk and the dimensions ofthe problems. Response 2

Through the Partnership for a SMOGFree Georgia, one ofthe control
measures, the public is provided information on airquality. The Georgia Department ofNatural Resources' Environmental Protection Division (EPD)issues ozone forecasts throughout the ozone season, i.e., SMOG Alerts. In addition to the SMOG Alerts, the EPD provides, to the public, real-time air quality concentration datathroughout the year for several measured ambient air pollutants through their internet web site (GOTOBUTTONBM 1 http:// www.air.dnr.state.ga.us/). Because ground level ozone is ahealth concern in Georgia onlyduring the ozone season (March 1through October 31), the EPA does not require EPD tomonitor or provide public information for ozone year round.

Comment 3

Air emissions associated withthe Norfolk Southern Railway Company's proposed intermodal transportation facility are likely to cause or contribute
to continuing violations ofthe ozone standard and other air quality standards in and around Cobb County andto pose threats to public health. Regulations addressing thisfacility should be included in the SIP submittal. Response 3 Specific emissions from the Norfolk Southern Railway Company's proposed facility may not have been included in the ozone modeling demonstration for the Atlanta nonattainment area. However, they were included in the projected emissions for Cobb County for this source category. EPA accepts the modeling and supporting weight of evidence analysis toidentify additional controls asbeing representative ofa demonstration to achieve the attainment ofthe 1-hour ozone standard. Regulations were developed for the controls used in this demonstration. It does not appear that specific controls at this facility were needed to achieve attainment ofthe 1-hour ozone NAAQS for the Atlanta nonattainment area. As such, regulations addressing this facility

are not included in the SIP.

Comment 4

Ifthe air emissions associated with the railroad facility were not consider in establishing the mobile source budget, future operation ofthe facility may render the budget inadequate to demonstrate attainment. Response 4

Railroad emissions are not part ofthe
motor vehicle emissions budget for onroad motor vehicles butrather are included in the inventory for nonroad
motor vehicles. Railroad facility emissions were used in the development ofGeorgia's attainment demonstration and nonroad mobile

source emissions inventory. All known future activity from railroads/yards were accounted for in the inventory development. Georgia's Nonroad mobile

source inventory for 1990 was developed using an EPA Nonroad database developed for all nonattainment areas. All emission inventories for otheryears that were usedin the attainment modeling demonstration were developed using Bureau ofEconomic Analysis (BEA) data. The database was developed in accordance with EPA's guidance document entitled "Procedures for Emission Inventory Preparation Volume IV: Mobile Source." Chapter 6 illustrates howemissions from locomotives are to be developed. Railroads are separated into three classes based upon size: Class I, ClassII and Class III. Locomotives within each ofthe Classes canperform
two different types ofoperations: line haul andyard (or switch). Furthermore, itis EPA'sunderstanding that Georgia tookinto consideration the Austell Report regarding the proposed CSXrail yard move. This report shows that emissions from this move will decrease.

Comment 5

Letter to Georgia EPDrequesting that proposed Norfolk Southern intermodal facility not be constructed or operated absent adoption ofregulations and/or permit conditions to ensure necessary emission controls. Supporting documentation is included.
Response 5

The Norfolk Southern intermodal facility is aminor source in Cobb County. Permits are notrequired for these minor sources inGeorgia.

Comment 6

EPD should require non-road diesel engines to use the proposed Georgia DieselFuel (CA style).
Response 6

In the October 1999 SIP submittal, the GAEPD listed several control measures, including low sulfur diesel, that would be studied to ensure thatthe 1-hour

ozone standard will be met and tomake progress towards attaining the 8-hour

ozone standard. GAEPD investigated the potential for this type ofcontrol and met with the GeorgiaPetroleum Council to discuss this option, aswell as the option for implementing a low sulfur/low Reid Vaporpressure gasoline. Since that time, GAEPD has implemented a control
program requiring the low sulfur/low Reid Vapor gasoline, andis actively engaged inEPA's voluntary Heavy Duty DieselRetrofit program. Through this program, GAEPD is encouraging the use oflow sulfur diesel in combination with retrofitted diesel engines for construction equipment at the airport, auxiliary powered units, school bus fleets and so forth. GAEPD isworking in partnership with engine manufacturers, 

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municipalities, the CityofAtlanta, EPA, and several refineries onthis effort. GAEPD abandoned its efforts to mandate low sulfurdiesel when EPA promulgated its Heavy Duty Diesel rule

onJanuary 18, 2001. This rule establishes a comprehensive national control program that will regulate the heavy-duty vehicle and its fuel as a single system. As part ofthis program,

new emission standards will begin to take effect in model year 2007 and will applyto heavy-duty highway engines andvehicles. Additionally, this program requires a 97 percent reduction for the level ofsulfur in highway diesel fuel by mid-2006.

Comment 7

Under the extension policythe state must have adopted all applicable local

measures required under the area's
current classification and any additional

measures necessary to demonstrate attainment. The commenter does not believe allofGeorgia's additional

measures have been adopted.
Response 7

On January 31, 2000, andJuly 31, 2000, the Georgia Environmental Protection Division (GAEPD) submitted revisions to the October 28, 1999, 1- hour ozone attainment demonstration for the Atlanta serious ozone nonattainment area. The purpose of these revisions was to address the level ofadditional reductions for attainment (i.e., the shortfall) and to identify the controls to achieve the additional reductions. GA EPD used EPA's 1999 guidance to identify the additional reduction in NOxand VOC needed for attainment. The additional control

measures adopted represent the open burning ban for industrial, residential, commercial, prescribed and slash
purposes for attainment counties, additional electric generating units controls for utilities, and a new combustion turbine regulation. GA EPD has adopted all applicable local

measures required for a serious 1-hour

ozone nonattainment areas and other additional control measures necessary to demonstrate attainment per the EPA attainment date extension policy and modeling guidance. A finalrule on the regulations for the Atlanta attainment strategy was published in the Federal Register on July 10, 2001, (66 FR 35906) andbecame effective on August 9, 2001. Please see the Federal Register actions published onDecember 16, 1999, (64 FR 70478) and December 11, 2001, (66 FR 63972) for further information. Comment 8

It is not clear that Georgia is "affected by transport" ofozone precursors in a

manner contemplated by the extension policy. Significant effects are not apparent from EPA's Finding of Significant Contribution &Rulemaking for Certain States in the Ozone Transport Assessment Group for Purposes ofReducing Transport of Ozone, 62 FR 60318 (November 7, 1997). Explain specifically the extentto which upwind sources ofairpollution

are "significant" andthe specific basis for EPA's conclusion.
Response 8

EPA provided all the evidence and supporting documentation thatAtlanta is significantly affected bytransport from upwind states, in the manner contemplated by the extension policy, in the nitrogen oxides (NO x) State Implementation Plan (SIP) Call rulemaking (63 FR 57356, Oct. 27, 1998). This rule was upheld bythe court in Michiganv. EPA, 213 F. 3d 663 (D.C. Cir. 2000).

The SIP for bringing the Atlanta area into compliance with the 1-hour ozone National Ambient Air Quality Standards (NAAQS)relies upon reductions from implementation ofthe NOx SIP Call implemented in upwind states. Appendix G ofthe EPA NOx SIP TSD referenced above, "Evaluation of Contributions-Tables ofMetrics, 1- Hour CAMX: Upwind States to Downwind States," page G-6, gives average contributions to an Atlanta area exceedance asfollows: Alabama, 8 percent; Kentucky, 1percent; North Carolina, 1percent; South Carolina, 1 percent; andTennessee, 4 percent for a total contribution of15 percent. The State calculated the effect on a monitored exceedance occurring at 125 ppb, the result being a contribution of 18.6 ppb (125 ppb x 15 percent). The implementation ofthe NOx SIP Call in 2004 would reduce the contribution to

ozone exceedances by 18.6 ppb. Thus, EPA has indicated thatGeorgia is affected by upwind transport.

IV. Final Action

Today, EPA is granting final approval
to the 1-hour ozone attainment demonstration for the Atlanta area as submitted onJuly 17, 2001, the RACM analysis, commitment toperform an early attainment assessment, contingency measures, the 2004 MVEB, andthe PSG program. Additionally, EPA isextending the attainment date to November 15, 2004. The Atlanta area will remain a serious nonattainment

area. V. Administrative Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is
not a "significant regulatory action" and therefore is not subject toreview bythe Office ofManagement and Budget. For this reason, this action is also not subject to Executive Order 13211, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use" (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements andimposes no additional requirements beyond those imposed by
state law. Accordingly, the Administrator certifies that this rule will nothave a significant economic impact on a substantial number ofsmall entities under the Regulatory Flexibility Act (5U.S.C. 601 etseq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable dutybeyond thatrequired by state law, itdoes not contain any unfunded mandate or significantly oruniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This rule also does not have tribal implications because it willnot have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of
power and responsibilities between the Federal Government andIndian tribes,

as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States,

on the relationship between the national government and the States, or on the distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely
approves a state rule implementing a Federal standard, and does not alterthe relationship or the distribution ofpower and responsibilities established inthe CAA. Thisrule alsois not subject to Executive Order 13045 "Protection of Childrenfrom Environmental Health Risks and Safety Risks" (62 FR 19885, April 23, 1997), because itis not economically significant.

In reviewing SIP submissions, EPA's role isto approve state choices, providedthat they meetthe criteria of the CAA. In this context, in the absence ofa prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for 30588

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failure touse VCS. Itwould thusbe inconsistent with applicable law for EPA, when itreviews a SIP submission,
to use VCS in place ofa SIP submission that otherwise satisfies the provisions of the CAA. Thus, therequirements of section 12(d) oftheNational Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act of 1995 (44U.S.C. 3501 etseq.).

The Congressional Review Act, 5 U.S.C. section 801 etseq., as added by the Small Business Regulatory Enforcement Fairness Act of1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House ofthe Congress andto the Comptroller General ofthe United States. EPA will submit a report containing this rule and other required information tothe U.S. Senate, the U.S. House ofRepresentatives, andthe Comptroller General ofthe United Statesprior to publication ofthe rule in the Federal Register. A major rule
cannot take effectuntil 60 days after it is published in theFederal Register. This action is not a "major rule" as defined by 5U.S.C. section 804(2).

Under section 307(b)(1) ofthe CAA, petitions forjudicial review ofthis action must be filed in the United States Court ofAppeals for the appropriate circuit byJuly 8, 2002. Filing apetition for reconsideration by the Administrator ofthis finalrule does not affect the finality ofthis rule for the purposes of judicial review nor does it extend the time within which a petition forjudicial review may be filed, and shall not postpone the effectiveness of suchrule

or action. This action may notbe challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List ofSubjects in 40 CFRPart52

Environmental protection, Air pollution control, Carbon monoxide, Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements.

Dated: April 29, 2002. J.1. Palmer, Jr., Regional Administrator,Region4.

40 CFR part 52 is amended asfollows:

PART 52-[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 etseq. Subpart L-Georgia

2. Section 52.570 is amended by adding a new entry 18 tothe table in paragraph (e) to read asfollows:
§52.570 Identification of Plan.

* * * * *
(e) EPAApproved Georgia Nonregulatory Provisions

Name of nonregulatory SIP provision Applicable geographic or non- State submittal date/effective EPA approval attainment area date date

18. Georgia's State Implementation Plan for the Atlanta Atlanta Metropolitan Area

...... July 17, 2001

.......................... May 7, 2002.

Ozone Nonattainment Area.

[FR Doc. 02-11176 Filed 5-6-02; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52 [CA261-0337c; FRL-7171-5]

Interim Final Determination That State has Corrected a Deficiency in the CaliforniaState Implementation Plan, San Joaquin Valley Unified Air PollutionControl District

AGENCY: Environmental Protection Agency (EPA). ACTION: Interim final determination.

SUMMARY: Elsewhere in today's Federal Register, EPA haspublished a direct final rulemaking fully approving a revision to the California State Implementation Plan (SIP). EPAhas also published aproposed rulemaking to provide thepublic with an opportunity
to comment on EPA's action. Ifa person submits adverse comments on EPA's direct final action, EPAwill withdraw its direct final rule and will consider any comments received before taking final action on the State's submittal. Based onthe proposed approval, EPA is making an interim final determination by this action thatthe State has corrected the deficiencies for which a sanctions clock began on October 13, 2000. This actionwill defer the imposition of offset andhighway sanctions. Although this action is effective upon publication, EPA will take comment. Ifno comments are received on EPA's approval ofthe State's submittal, the direct final action published in today's Federal Register will alsofinalize EPA's determination that the Statehas corrected the deficiency that started the sanctions clock.Ifcomments are received on EPA's approval andthis interim final action, EPAwill publish afinal notice taking into consideration any comments received. DATES: This interim final determination is effective May 7,2002. Comments
must be received byJune 6, 2002. ADDRESSES: Written comments mustbe submittedto Andy Steckel at the Region IX office listedbelow. Copies ofthe rule revision andEPA's evaluation report for the rule are available for public inspection atEPA's Region IX office duringnormal business hours. Copies of the submitted rule revisions are also available for inspection at the following locations: Rulemaking Office (AIR-4),Air

Division, U.S.Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105. Environmental Protection Agency, Air

Docket (6102), 401 "M" Street, SW., Washington, DC 20460. California Air Resources Board,

Stationary Source Division, Rule Evaluation Section, 1001 "I" Street, Sacramento, CA 95814. SanJoaquin Valley Unified Air

Pollution Control District, 1990 E. Gettysburg, Fresno, CA 93726. FOR FURTHER INFORMATION CONTACT: Yvonne Fong, Rulemaking Office, AIR4,Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 947-4117. SUPPLEMENTARY INFORMATION:

I. Background

On September 29, 1998, the State submitted arevision to the SIP, which EPAdisapproved in part on September 13, 2000. (65 FR 55193). EPA's disapproval action started an 18-month clock for the imposition ofone sanction 

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