[Federal Register Volume 67, Number 88 (Tuesday, May 7, 2002)]
[Rules and Regulations]
[Pages 30574-30589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11176]


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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.

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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: [email protected].

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

[[Page 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 
NOX, respectively.
    These MVEB reflect the most up-to-date 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

[[Page 30576]]

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-of-progress (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

[[Page 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 decade-long 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,

[[Page 30578]]

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 NOX 
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

[[Page 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 state-adopted 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 NOX 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

[[Page 30580]]

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., low-level source 
or elevated sources) while holding all other emissions source 
categories constant. The air-quality-to-emission-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

[[Page 30581]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.

[[Page 30582]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 30583]]

demonstrate attainment of the ozone standard ``as expeditiously as 
practicable, but no later than'' area's attainment date. 42 U.S.C. 
Secs. 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 
NOX 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

[[Page 30584]]

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-of-progress (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

[[Page 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) zero-growth 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 zero-
growth 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

[[Page 30586]]

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. Sec. 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. 
Sec. 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.

[[Page 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 SMOG-Free 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,

[[Page 30588]]

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 
(NOX) State Implementation Plan (SIP) Call rulemaking (63 FR 
57356, Oct. 27, 1998). This rule was upheld by the court in Michigan v. 
EPA, 213 F. 3d 663 (D.C. Cir. 2000).
    The SIP for bringing the Atlanta area into compliance with the 1-
hour ozone National Ambient Air Quality Standards (NAAQS) relies upon 
reductions from implementation of the NOX SIP Call 
implemented in upwind states. Appendix G of the EPA NOX SIP 
TSD referenced above, ``Evaluation of Contributions--Tables of Metrics, 
1-Hour CAMX: Upwind States to Downwind States,'' page G-6, gives 
average contributions to an Atlanta area exceedance as follows: 
Alabama, 8 percent; Kentucky, 1 percent; North Carolina, 1 percent; 
South Carolina, 1 percent; and Tennessee, 4 percent for a total 
contribution of 15 percent. The State calculated the effect on a 
monitored exceedance occurring at 125 ppb, the result being a 
contribution of 18.6 ppb (125 ppb  x  15 percent). The implementation 
of the NOX SIP Call in 2004 would reduce the contribution to 
ozone exceedances by 18.6 ppb. Thus, EPA has indicated that Georgia is 
affected by upwind transport.
IV. Final Action
    Today, EPA is granting final approval to the 1-hour ozone 
attainment demonstration for the Atlanta area as submitted on July 17, 
2001, the RACM analysis, commitment to perform an early attainment 
assessment, contingency measures, the 2004 MVEB, and the PSG program. 
Additionally, EPA is extending the attainment date to November 15, 
2004. The Atlanta area will remain a serious nonattainment area.
V. Administrative Requirements
    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the CAA. 
This rule also is not subject to Executive Order 13045 ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for

[[Page 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:


Sec. 52.570  Identification of Plan.

* * * * *
(e) EPA Approved Georgia Nonregulatory Provisions

----------------------------------------------------------------------------------------------------------------
                                      Applicable geographic   State submittal date/
Name of nonregulatory SIP provision   or nonattainment area      effective date           EPA approval date
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
18. Georgia's State Implementation   Atlanta Metropolitan    July 17, 2001.........  May 7, 2002.
 Plan for the Atlanta Ozone           Area.
 Nonattainment Area.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 02-11176 Filed 5-6-02; 8:45 am]
BILLING CODE 6560-50-P