30574 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 

III. 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 

Federal Register / Vol. 67, No. 88 / Tuesday, May 7, 2002 / Rules and Regulations 30575

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 

30576 Federal Register / Vol. 67, No. 88 / Tuesday, May 7, 2002 / Rules and Regulations 

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 unreasonable—

and therefore impermissible—

interpretation 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 

Federal Register / Vol. 67, No. 88 / Tuesday, May 7, 2002 / Rules and Regulations 30577

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 al. v. 

EPA, et al., 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 al 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 al. 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. NRDC v. 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, 

30578 Federal Register / Vol. 67, No. 88 / Tuesday, May 7, 2002 / Rules and Regulations 

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 

Federal Register / Vol. 67, No. 88 / Tuesday, May 7, 2002 / Rules and Regulations 30579

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 

30580 Federal Register / Vol. 67, No. 88 / Tuesday, May 7, 2002 / Rules and Regulations

1 ‘‘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.gov/ttn/scram.

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

Federal Register / Vol. 67, No. 88 / Tuesday, May 7, 2002 / Rules and Regulations 30581

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.gov/ttn/scram.

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.gov/ttn/scram.

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. 

30582 Federal Register / Vol. 67, No. 88 / Tuesday, May 7, 2002 / Rules and Regulations 

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 date—

even 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 

Federal Register / Vol. 67, No. 88 / Tuesday, May 7, 2002 / Rules and Regulations 30583

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

30584 Federal Register / Vol. 67, No. 88 / Tuesday, May 7, 2002 / Rules and Regulations 

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). Ober v. 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 

Federal Register / Vol. 67, No. 88 / Tuesday, May 7, 2002 / Rules and Regulations 30585

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 

30586 Federal Register / Vol. 67, No. 88 / Tuesday, May 7, 2002 / Rules and Regulations 

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. 

Federal Register / Vol. 67, No. 88 / Tuesday, May 7, 2002 / Rules and Regulations 30587

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, 

30588 Federal Register / Vol. 67, No. 88 / Tuesday, May 7, 2002 / Rules and Regulations 

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 × 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 

Federal Register / Vol. 67, No. 88 / Tuesday, May 7, 2002 / Rules and Regulations 30589

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.I. 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 nonattainment area

State submittal date/effective

date

EPA approval

date

*******

18. Georgia’s State Implementation Plan for the Atlanta

Ozone Nonattainment Area.

Atlanta Metropolitan Area ...... July 17, 2001 .......................... May 7, 2002.

[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, AIR–

4, 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