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Federal Register/Vol. 67, No. 88/Tuesday, May 7, 2002/Rules and Regulations

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 may be 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,

Chief Counsel, Legislative.

[FR Doc. 02-11310 Filed 5-6-02; 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), EPA is

approving the 1-hour ozone attainment

demonstration State Implementation

Plan (SIP) for the Atlanta serious 1-hour

ozone nonattainment area. In

conjunction with its approval of the

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 that the Atlanta 1-hour ozone

nonattainment area meets the

reasonably available control measures

(RACM) requirements of the CAA;

finding that the contingency measures

identified by the State of Georgia are

adequate; approving the Partnership for

a Smog Free Georgia (PSG) program; and

approving the 2004 motor vehicle

emissions budgets (MVEB).

EFFECTIVE DATE: This rule will be

effective June 6, 2002.

ADDRESSES: Copies of documents

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 of Natural

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 of Contents

I. Background

II. Today's Actions

A. Attainment Demonstration Approval

and Extension of Attainment Date

B. Reasonably Available Control Measure

Analysis

C. 2004 Motor Vehicle Emissions Budget

D. Partnership for a Smog Free Georgia

E. Contingency Measures

I1. Comment and Response

IV. Final Action

V. Administrative Requirements

I. Background

On July 17, 2001, the Georgia

Environmental Protection Division

(GAEPD) submitted to EPA a revised 1-

hour ozone attainment demonstration

for the Atlanta 1-hour ozone

nonattainment area (Atlanta area) that

replaced the attainment demonstration

submitted to 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 to perform

an early assessment of the Atlanta

Ozone Attainment SIP and submit it to

EPA by November 15, 2003.

EPA proposed to approve the

attainment demonstration and to grant

an attainment date extension, pursuant

to EPA's "Guidance on Extension of Air

Quality Attainment Dates for Downwind

Transport Areas." The extension policy

applies where pollution from upwind

areas interferes with the ability of a

downwind area to demonstrate

attainment with the 1-hour ozone

standard by the dates prescribed in the

CAA. As an alternative to

reclassification for areas affected by

transport, the extension policy provides

that an area, such as Atlanta, is eligible

for an attainment date extension if it can

make submissions that meet certain

conditions. EPA proposed that the

Atlanta area met all of the required

conditions.

In the alternative, EPA proposed to

find that the 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. If EPA had finalized this finding,

the Atlanta area would be reclassified,

by operation of law, as a severe

nonattainment area. EPA also took

comment on a proposed schedule for

submittal of the SIP revisions required

for severe areas should the area be

reclassified.

Please see the Federal Register

proposal actions published on

December 16, 1999, (64 FR 70478) and

December 11, 2001, (66 FR 63972) for

further information.

II. Today's Actions

A. Attainment Demonstration Approval

and Extension of Attainment Date

In today's action EPA is finalizing its

proposed determination that the Atlanta

SIP has met the criteria for an

attainment date extension. Therefore,

EPA is extending the attainment date for

the Atlanta area to November 15, 2004,

to allow the reductions in transport

needed for attainment to occur. Please

see the Federal Register actions

published on December 16, 1999, (64 FR

70478) and December 11, 2001, (66 FR

63972) for further information.

EPA's policy regarding an extension

of the ozone attainment date for areas

affected by transport was set forth in a

July 16, 1998, guidance Memorandum

entitled "Extension of Attainment Dates

for Downwind Transport Areas" which

was published in a notice of

interpretation on March 25, 1999, (64

FR 12221). In it, EPA set forth its

interpretation of the CAA regarding the

extension of attainment dates for ozone

nonattainment areas that have been

classified as moderate or serious for the

1-hour ozone NAAQS, and which are

downwind of areas that have interfered

with the moderate and serious

nonattainment areas's attainment of the

ozone NAAQS by dates prescribed in

the CAA. EPA stated that it will

consider extending the attainment date

for an area or a state that:

a. Has been identified as a downwind

area affected by transport from 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, adopted local measures, and

with an attainment date that shows it

will attain the 1-hour NAAQS no later

than the date that the 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 to be necessary to achieve

timely attainment, assuming the

emission reductions occur as required

in the upwind areas; and

d. Has provided that it will

implement all adopted measures as

expeditiously as practicable, but no later

than the date by which the upwind

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 NOx SIP

Call modeling and analyses documented

in EPA's final NOx SIP Call notice

published on October 27, 1998, (63 FR

57356) to demonstrate that the 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 of the 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 and the attainment demonstration

for the Atlanta area demonstrates the

impacts of transport. 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 that EPA

believes is approvable and that provides

for timely attainment no later than the

date emission reductions are expected

under the NOx SIP call. All of the local

control measures relied upon in the

attainment demonstration have been

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 of contingency measures

discussed below.

(iv) With respect to implementation of

all adopted measures as expeditiously

as practicable but no later than the time

upwind controls are expected, the

Atlanta SIP requires that all local

control measures needed for attainment

be in place by May 1, 2003, or earlier.

The upwind areas identified above are

required to implement controls

consistent with the NOx SIP Call by

May 31, 2004. All of the local control

measures in the Atlanta SIP will,

therefore, be implemented prior to that

time and EPA also finds that they will

be implemented as expeditiously as possible.

EPA has determined, based on the

above discussion, that the Atlanta SIP

has met the criteria for an attainment

date extension. Therefore, EPA is

extending the attainment date for the

Atlanta area to November 15, 2004, to

allow the reductions in transport to

occur before attainment is required.

This does not affect the GAEPD's

obligation to implement the remaining

local measures by the dates required in

the approved SIP regulations.

Additional background information on

EPA's attainment date extension policy

can be 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 on December 11, 2001, EPA

proposed to approve the 1-hour ozone

attainment demonstration for the

Atlanta area as submitted on July 17,

2001, and to extend the area's

attainment date to November 15, 2004.

In the alternative, EPA proposed to find

that the Atlanta area failed to attain the

1-hour ozone NAAQS by November 15,

1999, and to reclassify the Atlanta area

to severe.

In today's action, EPA is 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. Reasonably Available Control

Measures Analysis (RACM)

Section 172(c)(1) of the CAA requires

attainment demonstration SIPs to

provide for the implementation of all

RACM as expeditiously as practicable

(including such reductions in emissions

from existing sources in the area as may

be obtained through the adoption, at a

minimum, of reasonably available

control technology, (RACT) and to

provide for the attainment of the

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 on December 11, 2001,

(see 66 FR 63972). Today, EPA is

approving Georgia's RACM analysis.

C. 2004 Motor Vehicle Emissions

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 of VOC 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's MOBILE5b emission factor model

and 1999 vehicle registration data,

which were available at the time of SIP

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 of the

1-hour ozone NAAQS by 2004.

EPA is granting final approval to the

2004 MVEB because they are based on

the most recent data, they reflect

reductions from the control measures

included in the attainment

demonstration and they are consistent

with the overall attainment

demonstration.

Now that EPA has approved the

Atlanta attainment demonstration, all

future transportation conformity

determinations must be measured

against the MVEB in the approved SIP.

The previous adequacy determination

that EPA had made with respect to the

MVEB in the submitted attainment

demonstration SIP will have no further

force or effect in any future conformity

determinations. EPA's final approval of

the attainment demonstration and the

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MVEB contained in it is a separate

action from EPA's prior adequacy

determination and is based 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 on EPA's conclusions that the SIP

as a whole, including the MVEB it

contains, meets all applicable

requirements for approval of an

attainment demonstration as described

throughout this notice.

D. Partnership for a Smog Free Georgia

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 of the total emission reductions

needed for attainment through the

VMEP policy. Georgia is using this

policy to take 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

during the ozone season.

EPA is approving the PSG program,

its evaluation procedures, and the

expected emission reduction targets as

an enforceable part of the SIP under the

VMEP policy. Additional information

can be found in the above referenced

proposal notice.

E. Contingency Measures

Section 172(c)(9) and 182(c)(9) of the

CAA require SIPs to contain additional

measures that will take effect without

further action by the state or EPA if an

area fails to attain the standard by the

applicable date or to meet rate-ofprogress (ROP) deadlines. The CAA

does not specify how many contingency

measures are needed or the magnitude

of emissions reductions that must 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 the basis for approval of an

extension to the area's attainment date.

Georgia must still submit the required

contingency measures to EPA for

approval into the SIP. Additional

information can be found in the above

referenced proposal notice.

III. Comment and Response

EPA received comments from the

public on the Notices and Supplemental

Notices of Proposed Rulemaking

published in the Federal Register on

December 16, 1999, (64 FR 70478) and

December 11, 2001, (66 FR 63972.)

Comments were submitted by 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 of Home Builders

(NAHB), and the Southern

Environmental Law Center.

EPA sets forth below in this section

our responses to adverse comments

received on these notices which are

relevant to this rulemaking.

Additionally, some of the comments

received in Docket A-98-47 on EPA'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 as herein relevant.

The following discussion summarizes

and responds to all adverse comments:

Comments Received Relating to the

Supplemental Proposed Rule Published

in the Federal Register on Tuesday,

December 11, 2001, See 66 FR 63972

Comment 1

EPA proposes to extend the

attainment date for the Atlanta

metropolitan area to November 15,

2004, 66 Fed. Reg. 63,972. Because this

extension violates the plain meaning of

the CAA, it must be rejected under Step

One of Chevron U.S.A. v. Natural

Resources Defense Council, 467 U.S.

837, 842-43 (1984). Moreover, the

extension rests on an unreasonableand therefore impermissibleinterpretation that must be rejected even

if Chevron Step Two applies. See

Whitman v. American Trucking Assns.,

121 S. Ct. 903, 916 (2001) (reversing an

EPA interpretation of Subparts 1 and 2

that "goes beyond the limits of what is

ambiguous and contradicts what in our

view is quite clear"); Natural Resources

Defense Council v. Daley, 209 F.3d 747,

753 (D.C. Cir. 2000) (rejecting an agency

interpretation that "diverges from any

realistic meaning" of the statute).

The CAA expressly sets November 15,

1999, as the attainment date for serious

areas, and authorizes no extensions on

the grounds asserted by EPA. The

structure of the CAA further refutes

EPA's assertion of authority 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 respect to

deadlines for attainment of primary air

quality standards.

EPA's claim that it has authority to

extend attainment dates based on

pollution transport is 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 on pollution transport. These

extension provisions provide the

exclusive authority for attainment date

extensions because when Congress has

prescribed the conditions under which

an extension may be granted, no other

conditions may be created by the

Agency to grant an extension. The U.S.

Court of Appeals for the Eleventh

Circuit rejected EPA's administrative

amendment of the CAA plain terms.

Response 1

In this final rule, EPA responds to the

adverse comments on EPA's legal

authority to extend Atlanta's attainment

date received in response to the relevant

proposals. The responses to comments

in a number of prior 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 of the attainment date extension

policy, and EPA therefore incorporates

its responses 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 herein relevant.

Many of the legal arguments and other

issues raised in the comments

addressing the attainment date

extension proposed in Atlanta have also

been addressed in the briefs EPA has

filed in litigation concerning the

extensions in Washington, D.C. ( Sierra

Club v. Whitman) No. 01-1070 (D.C.

Cir.), St. Louis, Sierra Club v. EPA 01-

2844, No. 01-2845 (7th Cir.), and Sierra

Club v. Whitman, Nos. 01-5123 and 01-

5299 (D.C. Cir.) and Beaumont Sierra

Club v. EPA, No. 01-60537 (5th Cir.).

These briefs have been placed in the

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docket for this rulemaking and are

incorporated herein by reference.

In response to the contention that

EPA's proposed attainment date

extension conflicts with an order

previously issued by the Eleventh

Circuit Court of Appeals, the Eleventh

Circuit Court of Appeals 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 of EPA's

adequacy determination on the

emissions budgets in the 1999

attainment demonstration SIP pending

completion of litigation in Georgians for

Transportation Alternatives, et a]. v.

EPA, eta]., No. 00-12187, order of July

18, 2000. The petitioners had alleged in

their stay request that the budget was

inadequate because the SIP illegally

relied upon an attainment date

extension. However, EPA responded

that the budget would be adequate even

if an attainment date were not granted

and the 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 that the court believed petitioners had

some likelihood of success on the merits

and in light of allegations of potential

harm chose to preserve the status quo

pending completion of the litigation.

The issuance of the stay without

opinion in no way indicates that the

court affirmatively rejected EPA's

extension policy. The court never ruled

further on the matter since EPA

ultimately withdrew its adequacy

determination based on new factual

developments relating to the attainment

demonstration. Similarly, in a recent

development that occurred after EPA

received comments on its instant action,

the 11th Circuit Court of Appeals issued

a stay on the recently adequate MVEB

for the Atlanta nonattainment area in

response to a request for an expedited

stay in Sierra Club, et a] v. EPA, No. 02-

11188-F on April 17, 2002. However,

the 11th Circuit of Appeals did not

provide any rationale for its grant of the

stay. It simply issued a stay in the same

manner as in Georgians for

Transportation Alternatives, et a]. v.

EPA, et aL., No. 00-12187. Since a stay

is not an adjudication on the merits, the

grant of a stay does not change EPA's

position as to the legality of the

extension policy.

A commenter's contention that EPA

should not 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 fact that an adequate analysis and

allocation of responsibility for transport

did not exist in time to support relief by

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 of an area affected by

transport is necessary to achieve

additional interim reductions in the

area, even where they will not advance

attainment and when 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 a general

characterization of the purposes of the

SIP as a whole. While EPA agrees that

SIPs have purposes other than that of

providing for attainment, the CAA

contains specific and detailed

requirements directed to fulfilling those

purposes, and the SIP for Atlanta meets

those requirements. EPA believes that,

under the circumstances, Congress did

not intend to require 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

Resources Defense Council v. 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

among the CAA provisions regarding

transport and reclassification. Contrary

to commenter's contention that Reilly

supports the concept of "double

controls", in the context of onboard

regulation, Congress mandated that

Stage II controls be withdrawn after the

promulgation of onboard controls in

moderate areas, and also mandated a

more delayed withdrawal from serious

and severe areas because of the decadelong phase-in required for effective

onboard controls in those areas. That

case did not deal with transport, and

nothing in Reilly indicates that Congress

would be supportive of local areas being

held responsible for reducing

transported pollution for which upwind

areas are obligated to promulgate and

implement controls.

A commenter argues that it is

equitable to reclassify Atlanta because,

although it is downwind of some areas,

it is upwind of other nonattainment

areas, and may 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 if it provides

for local attainment but contributes to

nonattainment elsewhere. For purposes

of reclassification the relevant analysis

is of the air quality and transported

pollution problem in the area being

reclassified, and not the air quality

downwind from the area. To the extent

that the area is responsible for violations

in other areas downwind, it is 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: a list of

specific remedial provisions excludes

the possibility of inferring that Congress

intended any additional forms of relief;

an agency cannot substitute its policy

choices for those of Congress; the

attainment deadlines are central to the

CAA and cannot be adjusted. EPA has

previously set forth its views on these

issues in its prior responses and in its

briefs. None of the cases or arguments

cited by the commenter alters these

views, or undermines EPA's authority to

interpret the text of the 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,

even in the absence of explicit statutory

authority, EPA may grant extensions of

time under 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 of law pursuant to section

182(g)(3) of the CAA. That provision

provides for reclassification of a serious

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

a demonstration under paragraph 2 for

any Serious area within the required

period," and fails to make a election of

one of the statutory options prescribed

by paragraph (3) for remedying that

failure.

Comment 3

The fact that Georgia failed to make

the demonstration required by section

182(g)(2) is established by EPA's

response to a Freedom of Information

Act request submitted April 20, 2001.

Comment 4

Atlanta failed to comply with the rate

of further progress milestone for NOx.

Response to Comments 2, 3, and 4

Under paragraph (2) of subsection

182(g), each State containing all or part

of a nonattainment area classified

serious or higher is required 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

shall be 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

or not a State's demonstration is

adequate within 90 days after the

Administrator's receipt of a

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, and if it fails to make such an

election, then, at a specified time, it is

reclassified by operation of law.

By its terms, 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 that the required demonstration is

one that "in such form and manner * * * contain[s] such information and

analysis as the Administrator shall

require, by rule."

Subsection 182(g) does not provide a

date by which EPA must promulgate the

rule that establishes the requirements

for the demonstration, and EPA has not

yet promulgated such a rule. By limiting

the bump-up to circumstances in which

the State fails to submit a demonstration

that conforms to EPA 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, if not

submitted, would ultimately result in a

bump-up.

This reading is sensible in light of the

many different methods that EPA could

require for the demonstration. The

milestone compliance demonstration is

designed to require some form of

accounting to ascertain whether the area

has achieved the amount of emissions

reductions that the SIP requires by that

time. One method of making this

calculation may be to require a

comprehensive inventory of all sources

near the time of the milestone. This

approach may require careful

consideration because of the time and

expense typically involved in

conducting inventories, and because

other provisions of the CAA require

inventories, but at different times than

would be required by the milestone

compliance demonstration. See

182(a)(3). A second method may be 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 by the time of

the milestone have, in fact, been

implemented. These different methods

would impose significantly different

burdens on States and sources, and may

yield somewhat different results.

This review of the different methods

for making the demonstration makes

clear that the most straightforward

reading of section 182(g)(2)-(3)-to

require application of the bump-up by

operation of law only after a EPA

promulgates rules for the

demonstration-is sensible. It makes

sense that EPA should first tell the

States, by rule, which of the various

milestone accounting methodologies

they must use. By comparison, it would

make little sense to punish, in effect, a

State with a bump-up for failing to

submit a demonstration when EPA has

not yet told the State the form and

content for the demonstration, and

when important differences exist in the

various methods for making the

demonstration.

The CAA requires serious ozone

nonattainment areas to develop and

submit Rate of Progress Plans (ROP)

which would provide for at least a 15

percent reduction of volatile organic

compound (VOC) emissions 1990 to

1996 (15 percent plan), and Post-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,

and the 9 percent plan was submitted

on November 15, 1994. Both plans were

revised on June 17, 1996.

All elements of the 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). A milestone compliance

demonstration (MCD) as required by

section 182(g) of the CAA was

submitted by the GAEPD to EPA on

February 14, 1997.

All elements of the 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 a milestone compliance

demonstration, there is a discussion in

section 3.2.2. of the attainment

demonstration which states that all

control measures associated with the 15

and 9 percent plans have been adopted

and implemented. 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 of 0.12 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 by the

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 of the 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 of EPA

guidance.

As early as 1977, two years before

EPA promulgated the 1-hour ozone

NAAQS, EPA provided in guidance that

the level of the standard dictates the

number of significant figures to be used

in determining whether the standard

was exceeded (Guidelines for the

Interpretation of Air 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 by EPA 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 of the level of the 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 of Modeled Results to Demonstrate

Attainment of the Ozone NAAQS, July

1996.

The level of the 1-hour ozone

National Ambient Air Quality Standard

(NAAQS) is defined in 40 CFR 50.9 as

0.12 parts per million (ppm), not 120

parts per billion (ppb) as implied by the

commenter. In other words, the 1-hour

ozone NAAQS is specified as two

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significant digits and the data handling

approach employed to compare ambient

air quality data to the 1-hour ozone

standard is to 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 and guidance promulgated

or issued by the Administrator under

this Act, as in effect before the date of

the enactment of the Clean Air Act

Amendments of 1990 shall remain in

effect according to its terms * * *"

Thus, under the amended CAA,

Congress expressly carried forth EPA

interpretations set forth in guidance

such as the guideline documents

interpreting the NAAQS.

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 air quality

observed ozone design values (4th

highest daily maximum ozone using the

three most recent consecutive years of

data) at or below the level of the

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 or below the level

of the standard. Since the form of the 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 to below the

level of the NAAQS.

The photochemical grid modeling

assumed an attainment year of 2003.

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 of a 2004 emissions inventory

as a supplement to the 2003

demonstration, provided that the 2004

emissions are less than or equal to the

level of emissions used in the modeling.

It could then be concluded that if

emissions for 2004 were modeled, the

predicted concentrations of ozone

would be less than or equal 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 is based on

photochemical grid modeling and

weight of evidence 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 is based on an

emissions projection to 2003, the

attainment extension year that the

Georgia Environmental Protection

Division (Georgia EPD) requested of

EPA in it's October 28, 1999, submittal.

On December 16, 1999, EPA proposed

approval of the 2003 attainment strategy

developed with photochemical 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 affect its approvability for

demonstrating attainment of the 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 and EPA's December

1999 proposed approval of the 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

of Appeals for the District of Columbia

Circuit stayed the obligation of states to

submit SIPs in response to EPA'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 in the summer of

2000, the Court lifted the stay of the SIP

submission obligation, but provided that

since SIP submissions were delayed,

EPA could not mandate that states

require sources to comply with stateadopted rules under the SIP Call earlier

than May 31, 2004. Because the

attainment demonstration relied on

upwind reductions from the NOx SIP

Call. Georgia determined that it could

not attain in the year preceding the

source-compliance date under the SIP

and submitted a revised SIP requesting

an attainment date of November 2004.

The revised attainment demonstration

submitted by the State on July 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

Atlanta nonattainment area because of

the upwind contribution, the local

controls in the attainment strategy will

all be implemented no later than May

2003.

The 2004 demonstration is based 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 of emission

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 of attainment emissions for

2004 and whether or not attainment in

2004 is reasonably likely to occur. A

determination was made that if the

estimates of the projected 2004

emissions with controls implemented

are at or below the 2003 modeled levels

then attainment by 2004 is reasonably

likely to occur.

A comparison of the 2003 and 2004

modeling inventories indicate that NO x

emissions increase about 2 percent 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 why this would not

adversely affect the ability of the area to

attain the 1-hour ozone NAAQS by

2004. We believe that the relationship

between VOC emission reductions and

ozone concentration reductions and

between NOx emission reductions and

ozone concentration reductions can be

determined using the 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 the potential for

increases in ozone formation for the

emission levels projected for 2004. The

majority of the local emissions

reductions for the attainment strategy

occur within the 4-km fine grid with the

exception of two power plants near the

southern boundary. The sensitivity

simulations used were based on the

three episode days (i.e., July 31, 1987;

August 1, 1987; and July 8, 1988) that

were used in the 2003 control strategy

simulations. These sensitivity

simulations represented modeling

scenarios based on reductions 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

of emissions 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

and VOC emissions will decrease by

43.7 TPD in 2004. The NOx and VOC

ratios were applied to the emission

changes between 2003 and 2004 to

determine how ozone formation would

be affected in 2004. This analysis

indicated that a 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 thus been met by the State and the

necessary control measures approved by

EPA. Therefore, the assessment supports

the conclusion that the area will attain

the NAAQS in 2004

Comment 7

The Atlanta SIP fails to demonstrate

timely attainment through the

impermissible use of linear rollback

assumptions to demonstrate attainment

under the weight of evidence 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 by the Urban Airshed Model

(UAM), to show attainment in all grid

cells for future predictions for each day

modeled.

Response 7

Episodic photochemical grid

modeling is the primary basis for the

attainment demonstration, as it was

used to define the majority of the

control strategy. However, the modeling

and corroborative analyses, which form

the basis of the weight of evidence

analysis, provide a preponderance of

evidence to support EPA's

determination that attainment of the 1-

hour ozone NAAQS will be achieved in

2004. One of these WOE analyses

involved the use of a relative reduction

factor (derived from 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, and has 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

of evidence test. This limited use of

adjustment factors is more technically

sound than the unacceptable use of

proportional rollback. The limited use

of adjustment factors is more practical

in light of the uncertainty in the

modeling; the resources and time

required to perform additional

modeling; and the requirement that

serious areas perform a progress check

by the end of 2003.

The relative reduction factor was used

in one WOE analysis to estimate the

reductions from additional control

measures in the weight of evidence

analysis. The 1996 modeling guidance

recommends the optional use of weight

of evidence analysis partly due to the

form of the 1-hour ozone NAAQS. The

1-hour ozone NAAQS allows

exceedances, and taking modeling

uncertainty into consideration, EPA is

not requiring all predicted values in the

future model run to be below the level

of the NAAQS. The 1996 guidance

provides an approach for addressing

exceedances (selection of episodes

representative of the areas design value

and the "statistical" test) and the 1999

guidance provides a method for testing

whether additional measures, not

modeled, are needed (estimate of a

future design value). Since exceedances

are allowed, EPA does not agree that the

future modeling shows that the area will

not attain. The modeling indicates the

area may experience an exceedance

(model predictions above the level of

the NAAQS) but does not indicate this

will lead to a violation (future design

value estimate is below the level of the

NAAQS).

EPA did not rely on "proportional"

rollback as defined in Section 14.0 of 40

CFR 51 Appendix W which defines

"rollback" as "a simple model that

assumes that if emissions 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 of a rollback method which is

empirically/mathematically derived and

independent of model estimates or

observed air quality and emissions

changes as the sole method for

evaluating control strategies. In this

case, EPA used a locally derived as

determined by the model, relative

reduction factor to estimate a future

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 of ambient improvement in

ozone. This did assume a linear

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) 1 that makes further use of

model results for base case and future

emission estimates to predict a future

design value. This guidance describes

the use of an 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 to monitor

attainment if each monitor site has air

quality observed ozone design values

(4th highest daily maximum ozone

using the three most recent consecutive

years of data) at or below the level of the

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

"Guidance for Improving Weight of Evidence

Through Identification of Additional Emission

Reductions, Not Modeled." U.S. Environmental

Protection Agency, Office of Air Quality Planning

and Standards, Emissions, Monitoring, and

Analysis Division, Air Quality Modeling Group,

Research Triangle Park, NC 27711. November 1999.

Web site: http://www.epa.govlttnlscram.

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is expected to be at or below the level

of the standard. Since the form of the 1-

hour ozone 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

method outlined in EPA's 1999

guidance uses the highest measured

design value from all sites in the

nonattainment area for each of three

years. The three year "design value"

represents the air quality observed

during the 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

(highest across 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

a ratio of the peak model predicted

ozone concentrations in the attainment

year (i.e., average of daily maximum

concentrations from all days modeled)

to the peak model predicted ozone

concentrations in the base year (i.e.,

average of daily 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 that the attainment year

design value 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 design value at the level

of the standard. This step uses a locally

derived factor which assumes a linear

relationship between ozone and the

precursors. This is the 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 or nor does EPA guidance

suggest that States must model all

control measures being implemented.

Moreover, a component of this

technique, the estimation of future

design value, 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 by averaging across

episode days is not justified by sound

science. When developing the 1999

guidance, EPA considered the use of

day specific RRFs versus an average

RRF across the days. It was determined

that due to day to day variability in

ozone concentrations there is more

uncertainty in the day specific RRFs,

than the RRF calculated by averaging

across days. Therefore this approach

reduces the impact of a single day and

the uncertainty associated with the

calculation of the estimated future

design value. Since the goal was to

estimate a future design value (which

allows exceedances), EPA used the

average across days. This approach

demonstrates future design values

below the NAAQS, not day specific

predictions below the NAAQS. EPA did

estimate an area-wide future design

value based on the area's worst design

value, instead of site specific future

design values as recommended in the

EPA's 8-hour modeling guidance. Site

specific estimates would provide more

information on the spatial variability in

the future estimates. However, we have

seen from 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 and highest ever

monitored ozone concentration from the

three most common meteorological

regimes (i.e., stagnation, northwest

winds, and the worst case of all 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 of the area's design value.

It is likely that the model could have

predicted lower ozone values for the

future scenarios if more representative

episodes had been modeled.

Comment 9

Failure to consider the implications of

uncertainty in results precludes

demonstration of attainment.

Response 9

EPA considers uncertainty as the

"notion that model estimates will not

perfectly predict observed air quality at

each receptor location, neither now nor

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 to the use of

different days, limits on model

formulation, limits on understandings of

the problem to be modeled, database

limitations, uncertainties in forecasting

emissions. Some of this 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, and modeling

methods for chemistry, transport

algorithms, removal processes, and

numerical routines. For these reasons,

EPA recommends that a model

performance evaluation be conducted,

using graphical and statistical measures,

to determine how the model replicates

historical ozone events. The state

developing the attainment

demonstration needs to verify that the

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 to be used to generate air quality

estimates to support an attainment

demonstration. EPA does not require a

rigid criterion for model performance,

similar to the 95% certainty level cited

by the commenter to be used in a pass/

fail test. However, certain statistical

parameters are recommended to be

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

EPA recommended "acceptability"

ranges used in the SIP are unpaired

accuracy of the peak (EPA goal: within

+ 15-20 percent), and the mean relative

error (EPA goal: within + 5-15 percent,

mean unsigned relative error (EPA goal:

30-35 percent). If a 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 the Use of Models and other

Analyses in Attainment Demonstrations for the 8-

Hour Ozone NAAQS." U.S. Environmental

Protection Agency, Office of Air Quality Planning

and Standards, Emissions, Monitoring, and

Analysis Division, Air Quality Modeling Group,

Research Triangle Park, NC 27711. May 1999. Web

site: http://www.epa.govlttnlscram.

3 "Guideline for Regulatory Application of the

Urban Airshed Model." U.S. Environmental

Protection Agency, Office of Air Quality Planning

and Standards, Emissions, Monitoring, and

Analysis Division, Air Quality Modeling Group,

Research Triangle Park, NC 27711. July 1996. Web

site: http://www.epa.govlttnlscram.

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Although there are uncertainties

associated with the model outputs, it

can still be used to support an

attainment demonstration and make use

of the RRF analysis as part of the weight

of evidence.

As calculated, the RRF negates some

of the model uncertainty. The same

modeling assumptions and

meteorological inputs are used for the

base year and future year model

simulations (only emissions change).

Thus to some degree simulated ozone

concentrations for both the base year

and future year show similar bias (both

magnitude and direction). This model

bias is eliminated when the RRF is

calculated. Since the RRF is a ratio, the

bias in the future year concentration

(numerator) is canceled by the bias in

the base year concentration

(denominator). This ratio is then

multiplied by the areas observed design

value to estimate a future design value.

Since in most cases, uncertainties

associated with observations are

negligible compared to the uncertainties

associated with the modeled ozone

concentrations, the resulting future

design value is a reasonable prediction

of future 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 of MOBILE5 to

estimate motor vehicle emissions which

has been shown to significantly

underestimate motor vehicle emissions.

The tool used to estimate motor

vehicle emissions for the attainment

demonstration is the MOBILE model.

The accuracy of this estimate is critical

because, as demonstrated by Table 1 in

the notice, on-road sources account for

53 percent of the total NOx emission

inventory, and 35% of VOCs 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 should have been

run using MOBILE6.

Response 10

As noted in the January 18, 2002

Memorandum titled, "Policy Guidance

on the Use of MOBILE6 for SIP

Development and Transportation

Conformity," the CAA requires that SIP

inventories and control measures be

based on the most current information

available and applicable when a SIP is

developed [Section 172(c)(3) of the CAA

and 40 CFR 51.112(a)(1)]. However, as

noted in the answer to the first question

in that document, "EPA believes that

the CAA would not require states that

have already submitted SIPs or will

submit SIPs shortly after MOBILE6'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 of MOBILE6

for use in SIPs and conformity

determinations. Use of the MOBILE6

model for SIP development was not

allowed before the January 29, 2002

Federal Register notice. As the Atlanta

attainment demonstration was

submitted on July 17, 2001, and the

MOBILE modeling was performed prior

to that date, MOBILE5 had to be used

as MOBILE6 was not yet approved for

use in SIP development.

It should also be noted that at the time

of the development of the Atlanta

attainment demonstration changes were

being made to the various draft versions

of the MOBILE6 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 it was 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 can not be determined until

MOBILE6 is run with area specific data.

EPA can not now predict 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 and may not be

reasonably expected.

Response 11

The Voluntary Mobile Source

Emission Reduction Policy is designed

to encourage innovation in air pollution

control without the typical regulatory

hammer used to enforce against

stationary sources. The policy allows a

state to take a small amount of credit for

reasonably expected emission

reductions. The reasoning should be

based on historical trends or other

methodologies or commitments to meet

certain goals. In addition, the State must

commit to monitor, evaluate, and

reconcile any emissions reduction

shortfall from such programs in a timely

manner. In the case of the PSG program,

the State demonstrated that trends with

the PSG program show that it has the

potential to achieve the emission

reductions claimed. Furthermore, the

state committed to specific target levels

or participants and corresponding

emission reductions. Should the target

levels not be met, the state is

responsible for the shortfall and must

make up the shortfall through other

measures. Enforcement of these

measures is available under the SIP

against the State should it not timely

reconcile any emission reduction

shortfall. Based on this information,

EPA determined that the expectations of

the PSG program are reasonable and that

there are enough evaluation periods to

assure that the 2004 emission

reductions goals are met. EPA does not

believe that the PSG program should be

considered as part of the additional

WOE and did not consider it in the

WOE evaluation. See 66 FR 57159,

57190 (November 14, 2001) for further

information.

Comment 12

EPA's basis for allowing Georgia to

reject most of the 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 that not a single additional

control measure was reasonably

available over the next five years to

address ozone pollution in the Atlanta

area. Such an extreme position is

neither consistent with the CAA nor

supported by the 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 of the statute because they

purportedly would not advance the date

of full attainment. EPA asserted that the

RACM mandate was part of the CAA's

requirement that plans demonstrate

attainment "as expeditiously as

practicable," and that it would be

unreasonable to require measures that

do not advance the attainment dateeven if those 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 and for the SIP to eliminate

or reduce the severity and number of

violations of the NAAQS. These

provisions require ozone SIPS to

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demonstrate attainment of the ozone

standard "as expeditiously as

practicable, but no later than" area's

attainment date. 42 U.S.C. §§ 7511(a)(1),

(c)(2)(A). EPA wrongly presumes that

the sole purpose of SIPs is to 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 of full

attainment. The State concedes that

some additional control measures not

rejected on other grounds will reduce

NOx and VOC emissions, but rejects

even those 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

and lacks any rational basis.

Comment 14

Neither the State nor EPA has

quantified the level of local emission

reductions that would be needed to

advance the attainment date. EPA may

not reasonably conclude that sufficient

control measures are not available to

satisfy this test until it first determines

the amount of emission reduction

needed to meet this requirement, and

then determines that measures

considered by the State and other

measures proposed by other

stakeholders and not considered by the

State, do not achieve sufficient

reductions to meet this test. To show the

actual impact of additional controls on

air quality, EPA would need to conduct

photochemical grid modeling. Instead,

EPA has estimated the ambient impact

of the emissions reductions expected

from the small suite of measures not

rejected by Georgia, and applied the

absurd ratio of 1 ppb to 41.5 t/d NOx

discussed above to show that no air

quality benefit would result. This

approach is arbitrary for several reasons.

EPA failed to consider the potential

emission reduction benefits of all of the

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"). EPA refused to consider the

potential emission reduction benefits of

such combined implementation,

asserting that it "would be impossible to

analyze a seeming infinite set of

combinations of measures for possible

benefits."

Absent a constitutional prohibition

against the implementation of such

measures, there is no legal bar to the

consideration of such measures. Nor

were these measures considered in the

1997 Georgia State report since federal

tax laws supporting such strategies had

not yet been 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 SOV use in the Atlanta area if an

aggressive, and comprehensive

Commuter Choice program were

developed and implemented in the

region.

Given EPA's issuance of Guidance to

the States supporting the development

of such programs, it is especially

unreasonable for EPA not to require that

the air quality benefits 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 of NO x

and VOC 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 of VOC

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

already been taken for the measure; and

(7) whether the measure can be

implemented to achieve reductions

during the 2003 ozone season,

(measures implemented after the 2003

ozone season cannot advance the 2004

attainment date). Any measures

determined to be feasible to implement

after the above described evaluation

were grouped, by primary category,

under the heading "Remaining

measures.". After further analysis of

potential controls on each of the above

sources, GAEPD concluded that it was

not reasonable or practicable to further

control these sources. Specifically, for

many of the sources GAEPD stated that

the time required to implement controls

is unpredictable because legislative

action authorizing such regulation by

GAEPD would be required, or the

number of facilities and potential

discharge points affected by these

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 of the CAA. Section 172(c)(1)

states that a SIP for a nonattainment

area must meet the following

requirement, "In general.-Such plan

provisions shall provide for the

implementation of all reasonably

available control measures as

expeditiously as practicable (including

such reductions in emissions from

existing sources in the area as may be

obtained through the adoption, at a

minimum, of reasonably available

control technology) and shall provide

for attainment of the national primary

ambient air quality standards."

[Emphasis added.] The EPA interprets

this language as tying the RACM

requirement to the requirement for

attainment of the national primary

ambient air quality standard. The CAA

provides that the attainment date shall

be "as expeditiously as practicable but

no later than * * *" the deadlines

specified in the CAA. EPA believes that

the use of the same terminology in

conjunction with the RACM

requirement serves the purpose of

specifying RACM as the way of

expediting attainment of the NAAQS in

advance of the deadline specified in the

CAA. As stated in the "General

Preamble" (57 FR 13498 at 13560, April

16, 1992), "The EPA interprets 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 as components of the area's

attainment demonstration." [Emphasis

added.] In other words, because of the

construction of the RACM language in

the CAA, EPA does not view the RACM

requirement as separate from the

attainment demonstration requirement.

Therefore, EPA believes that the CAA

supports its interpretation that measures

may be determined to not be RACM if

they do not advance the attainment

date. In addition, EPA believes that it

would not be reasonable to require

implementation of measures that would

not in fact advance attainment (see 57

FR 13560). EPA has historically taken

this interpretation and consistently

implemented it through guidance since

1979 (see 44 FR 20372, 20375, April 4,

1979).

The term "reasonably available

control measure" is not actually defined

in the definitions in the CAA. Therefore,

the EPA interpretation that potential

measures may be determined not to be

RACM if they require an intensive and

costly effort for numerous small area

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sources is based on the common sense

meaning of the phrase, "reasonably

available." A measure that is reasonably

available is one that is technologically

and economically feasible and that can

be readily implemented. Ready

implementation also includes

consideration of whether emissions

from small sources are relatively small

and whether the administrative burden,

to the States and regulated entities, of

controlling such sources was likely to be

considerable. As stated in the General

Preamble, EPA believes that States can

reject potential measures based on local

conditions including cost. 57 FR 13561.

Also, the development of rules for a

large number of very different source

categories of small sources for which

little control information may exist will

likely take much longer than

development of rules for source

categories for which control information

exists or that comprise a smaller number

of larger sources. The longer the time

frame for development of rules by the

State would decrease the possibility that

the emission reductions from the

additional rules in the nonattainment

area would advance the attainment date

earlier than would be achieved from the

larger amount of reductions 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 that the

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 to the obligation to

demonstrate timely attainment. EPA

reasonably concluded that interim

reduction requirements could be met by

any measures selected by the states, and

that section 7502 requires

implementation in areas that have met

RFP requirements only if such

reasonably available control measures as

will provide for timely attainment of the

NAAQS. As noted above, Atlanta has

met its 15 percent and 9 percent ROP

requirements.

Another appellate court recently

upheld EPA's interpretation of the

corresponding RACM provisions for

particulate matter (PM-10) in section

7513a(a). Oberv. Whitman, 243 F.3d

1190 (9th Cir. 2001). There, EPA applied

a two-part test in determining whether

controls on certain sources of de

minimis PM-10 emissions would need

to be implemented as RACM-looking

first at the actual amount of emissions

and then at whether control of those

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 that the deadline will

not be met even if these small sources

of PM-10 were controlled. Under those

circumstances, it is reasonable to

decline to control the de minimis

sources of pollution.

Id. at 1198. EPA reasonably

concluded here that section 7502(c)(1)

similarly does not require

implementation of measures that will

not contribute to attainment as

expeditiously as practicable.

Comment 15

The State does not include any of the

measures required for severe areas. In

view of its bump-up to severe by

operation of law, 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 the response to comments

2-4, no bump-up by operation of law

occurred due to any purported failure to

submit the 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 is unlawful because it

proposes to rely on excess emissions

reductions that do not exist, and relies

on federal measures not dependent on

the attainment status of the

nonattainment area.

Response 16

Section 172(c)(9) and 182(c)(9) of the

CAA require SIPs to contain additional

measures that will take effect without

further action by the state or EPA if an

area fails to attain the standard by the

applicable date or to meet rate-ofprogress (ROP) deadlines. The CAA

does not specify how many contingency

measures are needed or the magnitude

of emissions reductions that must 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 of the 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

of such measures, additional emissions

reductions of up to 3 percent of the

emissions in the adjusted base year

inventory (or such 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 can be

implemented with minimal further

action on their part and with no

additional rulemaking actions such as

public hearings or legislative reviews.

The additional 3 percent 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., 3 percent per year),

and that the 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 can be

used to 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 if an area fails to

attain, EPA believes that existing

federally enforceable measures can be

used to provide the necessary

substantive relief. Therefore, federal

measures may be used in the analysis,

to the extent that the attainment

demonstration does not rely on them or

take credit for them (see, e.g., 66 FR 586,

615, January 3, 2001, and the

memorandum from G.T. Helms dated

August 13, 1993, "Early Implementation

of Contingency Measures for Ozone and

Carbon Monoxide Nonattainment

Areas".)

EPA believes the contingency

measure requirements of sections

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

no bearing on whether a state has

submitted a SIP that projects attainment

of the ozone NAAQS or the required

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ROP reductions toward attainment. The

attainment or ROP SIP provides a

demonstration that attainment or ROP

requirements ought to be fulfilled, but

the contingency measure SIP

requirements concern what is to happen

only if attainment or ROP is not actually

achieved. The EPA acknowledges that

contingency measures are an

independently required SIP revision,

but does not believe that submission of

contingency measures is necessary

before EPA may approve an attainment

or ROP SIP. However, EPA believes that

areas should have sufficient reductions

to meet contingency measure

requirements, even if a 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. EPA believes that substantive

contingency measure requirements can

be met by surplus reductions already

achieved in the ROP plans. EPA granted

approval to the 15 percent ROP in a

Federal Register published on April 26,

1999, (64 FR 20186). The 9 percent ROP

was approved in a Federal Register

published on March 18, 1999, (64 FR

13348). Detailed information relating to

the calculation of Georgia'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

and the 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

0.20 percent of the required 3 percent

reduction, leaving a balance of 2.80

percent to be 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 (0.0280 x 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 2 tailpipe

standards, national low emission

vehicle program, and heavy duty diesel

emission standards for 2004.

Additionally, the Atlanta area will

benefit from fleet turnover, as well as an

additional model year of light 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 of the 1990

NOx adjusted baseline emissions by

2005 (the year following the time by

which EPA must 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 apply if the Atlanta area failed to

attain, EPA believes 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 not being

implemented in such a way as to

provide for zero growth.

Response 17

The facility in question is one of a

group of electric generating utilities that

are subject to a special 7-plant average

emissions limit. A revised application

from the facility dated December 21,

2001, proposed an overall ton per ozone

season limit for all of the companies'

facilities subject to the 7-plant average.

These limits will be placed in the

facility's permits. Total emissions for

the seven plants will not increase, and

in fact, due to the early reductions and

offset credit, will decrease. It is possible

that some individual units may

experience an increase in emissions,

and hypothetically, these units could be

located in the Atlanta non-attainment

area. It is also possible that the units in

the nonattainment area could be the

ones experiencing the decreases in

emissions.

EPD's assumption of zero growth is

reasonable, given that (1) overall

emissions for the seven plants will

decrease; (2) exact locations of the

decreases and increases were unknown

at the time of the 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 limit mentioned 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, a period where zerogrowth is expected due to the offset

rule, making the assumption of zero

growth a very conservative one.

In the future, Georgia EPD will

continue to implement its Offset Rule in

a manner that no leakage will occur,

resulting in zero-growth or a decrease in

emissions.

Comment 18

ARTBA supports approval of the

attainment demonstration for the

Atlanta area because approval is the

only reasonable action.

Response 18

EPA agrees with the commenter.

Comment 19

Reclassification to severe

nonattainment would not shorten the

time for meeting Atlanta's air quality

goals. In fact, it would extend the time

for compliance to at least 2005.

Regardless of whether EPA grants an

extension pursuant to the downwind

extension policy, EPA is prohibited

from reclassifying the Atlanta area

under Subpart 2 of the federal CAA.

Under 42 U.S.C. 7509(c), an area can be

reclassified only if EPA makes a formal

finding "[w]ithin 6 months following

the applicable attainment date" that the

area failed to attain the ozone NAAQS.

EPA did not make such a determination

within six months of the 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, but rather is granting an

extension of the area's attainment date

to November 2004. EPA agrees that

reclassification must be based on a

notice and comment rulemaking. See

D.C. Circuit Slip opinion Sierra Club v.

Whitman No. 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 by its

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attainment date. EPA does not agree,

however, that missing a mandatory

deadline means that EPA loses the

power to act to discharge the duty to

which the deadline applied. EPA retains

the power to act to discharge the duty

after the deadline has passed.

Southwestern Pennsylvania Growth

Alliance v. Browner, 121 F.3d 106, 113-

114 (3d Cir. 1997). (EPA does not lose

power to perform mandatory duty to act

on redesignation request after 18-month

statutory period has elapsed).

As noted in the response to comments

2-4, no bump-up by operation of law

occurred due to any purported failure to

submit the appropriate milestone

compliance demonstration.

Comment 20

ARTBA recognizes that interest

groups have threatened legal challenges

of both the EPA extension policy and

the proposed attainment demonstration

for Atlanta. EPA should not allow the

threat of legal challenge to cloud its

judgment in approving this attainment

demonstration. The practical effect of a

legal challenge for the Atlanta

transportation planners would be for the

current transportation plan (at the time

of invalidation) to remain in place

because legal challenges would not have

a retroactive effect. In the alternative, a

disapproval and reclassification of the

nonattainment area by EPA might cause

air quality goals and transportation

plans to be delayed because it would

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 of the

comments made by the Commenters

that correctly point out certain

provisions in the conformity rule.

However, several of the comments are

taken out of context. The commenter

notes that 40 C.F.R. § 93.118(e)(3) and

proposed rule changes (see 66 FR 50954

and 50958, October 5, 2001) provide any

finding of conformity for transportation

plans or transportation improvement

programs (TIPs) to a motor vehicle

emission budget (MVEB), prior to an

invalidation of a state implementation

plan (SIP) containing that MVEB, would

continue to be valid. The commenter

further states, "As a policy matter, it is

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

and regional planner to be essential in

improving air quality, reducing

congestion, improving mobility and

access, and/or preventing traffic

fatalities." This statement, however, is

not correct. This rule provision

recognizes that at some point the

planning process must proceed, and

recognizing that at the time the

transportation plan and TIP were

developed and approved, the latest

applicable MVEB was used. However,

the SIP containing the budget is

subsequently disapproved (without a

protective finding on the budget), only

those projects in the first three years of

the TIP, exempt and Transportation

Control Measures in approved SIPs can

proceed. This provision allows for

recognition of the 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 if a SIP becomes invalid

that the reason projects can proceed is

because they were deemed to be

essential by the state and regional

planner.

The commenter also states, "In the

case of Atlanta, its conformity

determination would remain valid, if

approved based on the January 8, 2002,

adequacy determination or based on

approval of the attainment

demonstration at issue in the current

rulemaking, regardless of any future SIP

withdrawal or invalidation, 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 and FY

2002-04 TIP for Atlanta, Georgia were

found in conformity to the 15 percent

and 9 percent rate of progress SIP

MVEBs. These were the latest approved

budgets in the SIP at the time of

transportation plan and TIP approval.

The January 8, 2002, finding of

adequacy is on the 1-hour attainment

SIP. Presently, no finding of conformity

has been made for this or any other

attainment MVEB. While the conformity

rule requires 18 months to redetermine

conformity to the budget found

adequate on January 8, 2002, this action

has not yet occurred. The date by which

the conformity redetermination for the

new budget must be completed for the

transportation plan and TIP would

likely be 18 months from the date of the

finding of adequacy on the budget.

(EPA's proposed rule change, dated

October 5, 1999, would start the 18-

month trigger on the date of adequacy

for a new 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 its budget), "Although

this motor vehicle emissions budget was

later withdrawn, conformity was

determined within the required 18-

month period. Any subsequent

adequacy determination on a

resubmitted budget would not be an

initial SIP submission and would not

trigger the 18-month "conformity

clock'." This statement is incorrect.

First, no finding of conformity to the

1999 SIP budget was ever made. In

addition, the purpose of the 1999 SIP

submission was to demonstrate

attainment by 2003. Because of a 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

since been replaced, the 2004

attainment SIP is considered an initial

submission. Therefore, it started a new

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 in July 2001, a new

18-month conformity schedule began.

Therefore, under the 18-month schedule

for redetermining conformity to the

MVEB in the July 2001 SIP (with an

attainment date of 2004), the deadline is

likely to be July 2003. (EPA's proposed

rule change, dated October 5, 1999,

would start the 18-month trigger on the

date of adequacy for a new SIP budget

versus the date of a SIP submittal.

Should this rule be finalized,

conformity will be required to the

budget found adequate in January 2002

by July 2003.) Currently, a

transportation plan is 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 as practicable.

However, EPA believes this can best be

achieved by implementation of the

submitted control strategy. Therefore,

EPA intends to approve the 1-hour

ozone attainment demonstration for the

Atlanta area.

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Response to Comments Received

Relating to the Proposed Rule Published

in the Federal Register on December 16,

1999, See 64 FR 704787, Still Relevant

to Today's Action

Comment 1

There is no evidence in the submittal

that the Governor has endorsed the SIP

as required by 40 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

or maintenance 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 (or his designee) and was

subject to a State public hearing.

The Georgia Air Quality Act, Article

1, Section 12-9-6 "Powers and Duties

of Director as to Air Quality Generally"

designates the Director of the

Environmental Protection Division of

the Department of Natural Resources of

the State of Georgia to exercise general

supervision over the administration and

enforcement of this article and all rules,

regulations, and orders promulgated

under this article. The motor vehicle

emissions budget was the subject of

public hearings held on July 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 of the Georgia Department of

Natural Resources.

Comment 2

Commenter believes Georgia should

increase information to the public on air

quality. Commenter believes that year

round data collection and more 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 of the problems.

Response 2

Through the Partnership for a SMOGFree Georgia, one of the control

measures, the public is provided

information on air quality. The Georgia

Department of Natural 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 data throughout

the year for several measured ambient

air pollutants through their internet web

site (GOTOBUTTON BM 1 http://

www.air.dnr.state.ga.us/). Because

ground level ozone is a health concern

in Georgia only during the ozone season

(March 1 through October 31), the EPA

does not require EPD to monitor or

provide public information for ozone

year round.

Comment 3

Air emissions associated with the

Norfolk Southern Railway Company's

proposed intermodal transportation

facility are likely to cause or contribute

to continuing violations of the ozone

standard and other air quality standards

in and around Cobb County and to pose

threats to public health. Regulations

addressing this facility 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 to identify additional

controls as being representative of a

demonstration to achieve the attainment

of the 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 of the 1-hour ozone NAAQS

for the Atlanta nonattainment area. As

such, regulations addressing this facility

are not included in the SIP.

Comment 4

If the air emissions associated with

the railroad facility were not consider in

establishing the mobile source budget,

future operation of the facility may

render the budget inadequate to

demonstrate attainment.

Response 4

Railroad emissions are not part of the

motor vehicle emissions budget for

onroad motor vehicles but rather are

included in the inventory for nonroad

motor vehicles. Railroad facility

emissions were used in the

development of Georgia'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 other years that were

used in the attainment modeling

demonstration were developed using

Bureau of Economic 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

how emissions from locomotives are to

be developed. Railroads are separated

into three classes based upon size: Class

I, Class II and Class III. Locomotives

within each of the Classes can perform

two different types of operations: line

haul and yard (or switch). Furthermore,

it is EPA's understanding that Georgia

took into consideration the Austell

Report regarding the proposed CSX rail

yard move. This report shows that

emissions from this move will decrease.

Comment 5

Letter to Georgia EPD requesting that

proposed Norfolk Southern intermodal

facility not be constructed or operated

absent adoption of regulations and/or

permit conditions to ensure necessary

emission controls. Supporting

documentation is included.

Response 5

The Norfolk Southern intermodal

facility is a minor source in Cobb

County. Permits are not required for

these minor sources in Georgia.

Comment 6

EPD should require non-road diesel

engines to use the proposed Georgia

Diesel Fuel (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 that the 1-hour

ozone standard will be met and to make

progress towards attaining the 8-hour

ozone standard. GAEPD investigated the

potential for this type of control and met

with the Georgia Petroleum Council to

discuss this option, as well as the option

for implementing a low sulfur/low Reid

Vapor pressure gasoline. Since that

time, GAEPD has implemented a control

program requiring the low sulfur/low

Reid Vapor gasoline, and is actively

engaged in EPA's voluntary Heavy Duty

Diesel Retrofit program. Through this

program, GAEPD is encouraging the use

of low sulfur diesel in combination with

retrofitted diesel engines for

construction equipment at the airport,

auxiliary powered units, school bus

fleets and so forth. GAEPD is working in

partnership with engine manufacturers,

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municipalities, the City of Atlanta, EPA,

and several refineries on this effort.

GAEPD abandoned its efforts to

mandate low sulfur diesel when EPA

promulgated its Heavy Duty Diesel rule

on January 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 of this program,

new emission standards will begin to

take effect in model year 2007 and will

apply to heavy-duty highway engines

and vehicles. Additionally, this program

requires a 97 percent reduction for the

level of sulfur in highway diesel fuel by

mid-2006.

Comment 7

Under the extension policy the 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 all of Georgia's additional

measures have been adopted.

Response 7

On January 31, 2000, and July 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

of additional 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 NOx and 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 final rule on the

regulations for the Atlanta attainment

strategy was published in the Federal

Register on July 10, 2001, (66 FR 35906)

and became effective on August 9, 2001.

Please see the Federal Register actions

published on December 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" of ozone 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 of Reducing Transport of

Ozone, 62 FR 60318 (November 7,

1997). Explain specifically the extent to

which upwind sources of air pollution

are "significant" and the specific basis

for EPA's conclusion.

Response 8

EPA provided all the evidence and

supporting documentation that Atlanta

is significantly affected by transport

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 by the court

in Michigan v. 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 of the NOx SIP Call

implemented in upwind states.

Appendix G of the EPA NOx SIP TSD

referenced above, "Evaluation of

Contributions-Tables of Metrics, 1-

Hour CAMX: Upwind States to

Downwind States," page G-6, gives

average contributions to an Atlanta area

exceedance as follows: Alabama, 8

percent; Kentucky, 1 percent; North

Carolina, 1 percent; South Carolina, 1

percent; and Tennessee, 4 percent for a

total contribution of 15 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 of the NOx SIP Call in

2004 would reduce the contribution to

ozone exceedances by 18.6 ppb. Thus,

EPA has indicated that Georgia 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 on July 17, 2001, the RACM

analysis, commitment to perform an

early attainment assessment,

contingency measures, the 2004 MVEB,

and the PSG program. Additionally,

EPA is extending 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 to review by the

Office of Management 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 and imposes no additional

requirements beyond those imposed by

state law. Accordingly, the

Administrator certifies that this rule

will not have a significant economic

impact on a substantial number of small

entities under the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.). Because this

rule approves pre-existing requirements

under state law and does not impose

any additional enforceable duty beyond

that required by state law, it does not

contain any unfunded mandate or

significantly or uniquely 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 will not 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 and Indian 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 of power and

responsibilities among the various

levels of government, 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 alter the

relationship or the distribution of power

and responsibilities established in the

CAA. This rule also is not subject to

Executive Order 13045 "Protection of

Children from Environmental Health

Risks and Safety Risks" (62 FR 19885,

April 23, 1997), because it is not

economically significant.

In reviewing SIP submissions, EPA's

role is to approve state choices,

provided that they meet the criteria of

the CAA. In this context, in the absence

of a prior existing requirement for the

State to use voluntary consensus

standards (VCS), EPA has no authority

to disapprove a SIP submission for

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failure to use VCS. It would thus be

inconsistent with applicable law for

EPA, when it reviews a SIP submission,

to use VCS in place of a SIP submission

that otherwise satisfies the provisions of

the CAA. Thus, the requirements of

section 12(d) of the National

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 of the Paperwork Reduction

Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5

U.S.C. section 801 et seq., as added by

the Small Business Regulatory

Enforcement Fairness Act of 1996,

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 of the Congress

and to the Comptroller General of the

United States. EPA will submit a report

containing this rule and other required

information to the U.S. Senate, the U.S.

House of Representatives, and the

Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

defined by 5 U.S.C. section 804(2).

Under section 307(b)(1) of the CAA,

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by July 8, 2002. Filing a petition

for reconsideration by the Administrator

of this final rule does not affect the

finality of this rule for the purposes of

judicial review nor does it extend the

time within which a petition for judicial

review may be filed, and shall not

postpone the effectiveness of such rule

or action. This action may not be

challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

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, Region 4.

40 CFR part 52 is amended as follows:

PART 52-[AMENDED]

1. The authority citation for part 52

continues to read as follows:

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

Subpart L-Georgia

2. Section 52.570 is amended by

adding a new entry 18 to the table in

paragraph (e) to read as follows:

§52.570 Identification of Plan. * * * * *

(e) EPA Approved 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

[CA 261-0337c; FRL-7171-5]

Interim Final Determination That State

has Corrected a Deficiency in the

California State Implementation Plan,

San Joaquin Valley Unified Air

Pollution Control District

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Interim final determination.

SUMMARY: Elsewhere in today's Federal

Register, EPA has published a direct

final rulemaking fully approving a

revision to the California State

Implementation Plan (SIP). EPA has also

published a proposed rulemaking to

provide the public with an opportunity

to comment on EPA's action. If a person

submits adverse comments on EPA's

direct final action, EPA will withdraw

its direct final rule and will consider

any comments received before taking

final action on the State's submittal.

Based on the proposed approval, EPA is

making an interim final determination

by this action that the State has

corrected the deficiencies for which a

sanctions clock began on October 13,

2000. This action will defer the

imposition of offset and highway

sanctions. Although this action is

effective upon publication, EPA will

take comment. If no comments are

received on EPA's approval of the

State's submittal, the direct final action

published in today's Federal Register

will also finalize EPA's determination

that the State has corrected the

deficiency that started the sanctions

clock. If comments are received on

EPA's approval and this interim final

action, EPA will publish a final notice

taking into consideration any comments

received.

DATES: This interim final determination

is effective May 7, 2002. Comments

must be received by June 6, 2002.

ADDRESSES: Written comments must be

submitted to Andy Steckel at the Region

IX office listed below. Copies of the rule

revision and EPA's evaluation report for

the rule are available for public

inspection at EPA's Region IX office

during normal 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.

San Joaquin 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 a revision to the SIP, which

EPA disapproved in part on September

13, 2000. (65 FR 55193). EPA's

disapproval action started an 18-month

clock for the imposition of one sanction

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