[Federal Register Volume 68, Number 187 (Friday, September 26, 2003)]
[Rules and Regulations]
[Pages 55469-55475]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24404]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[GA-57-200341; FRL-7563-4]


Determination of Nonattainment as of November 15, 1999, and 
Reclassification of the Atlanta 1-Hour Ozone Nonattainment Area; State 
of Georgia

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to issue a determination that the 
Metropolitan Atlanta 1-hour serious ozone nonattainment area 
(hereinafter referred to as the Atlanta area) did not attain the 1-hour 
ozone national ambient air quality standard (NAAQS) by the November 15, 
1999, Clean Air Act (CAA) deadline for serious ozone nonattainment 
areas. As a result, the Atlanta area is reclassified by operation of 
law as a severe ozone nonattainment area on the effective date of this 
rule. The Georgia Environmental Protection Division (GAEPD) must submit 
by July 1, 2004, a State Implementation Plan (SIP) revision for the 
Atlanta area that meets the severe area 1-hour ozone nonattainment area 
requirements of CAA section 182(d). The due date for the section 185 
enforcement rule is July 1, 2005, due to the need for the State to 
acquire the necessary statutory authority to implement this rule. 
Finally, EPA is adjusting the dates by which the area must achieve a 
Rate of Progress plan (ROP) to cover an average of 3 percent per year 
reduction in ozone precursor emissions from 1999 to the attainment year 
and adjusting contingency measure requirements as this relates to the 
ROP milestone. In an Order entered on June 16, 2003, the United States 
Court of Appeals for the Eleventh Circuit granted EPA's motion for 
voluntary vacatur of the EPA's extension of the 1-hour ozone attainment 
date for the Atlanta area and EPA's approval of the 1-hour ozone 
attainment demonstration SIP submitted by the GAEPD on July 17, 2001, 
and remanded the matter to the agency for further proceedings 
consistent with the court's order. This final determination and this 
notice are in direct response to and comply with the court's order.

DATES: This final rule is effective January 1, 2004.

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: The use of ``we,'' ``us,'' or ``our'' in 
this document refers to EPA.

Table of Contents

I. Background
II. Atlanta 1-Hour Ozone Nonattainment Area
III. Explanation of a SIP
IV. The NAAQS For Ozone
V. Application of the CAA Provisions Regarding Determinations of 
Nonattainment and Reclassifications
VI. Necessity of This Action
VII. Results of This Action
VIII. Reclassification
IX. Effective Date of Reclassification
X. Severe Area Attainment Date
XI. Severe Area Requirements SIP Submittal
XII. Rate-of-Progress (ROP) Schedule
XIII. Use of MOBILE6 in SIP Submittals
XIV. Impacts on the Title V Program
XV. Vacatur of Previous Approval
XVI. Comment and Response
XVII. Final Action
XVIII. Statutory and Executive Order Reviews

I. Background

    In a Federal Register notice published on December 11, 2001, (66 FR 
63972) EPA proposed to approve the 1-hour ozone attainment 
demonstration for the Atlanta 1-hour ozone nonattainment area which was 
submitted by the GAEPD on July 17, 2001, and extend the attainment date 
to November 15, 2004. Additionally, in the alternative, EPA proposed to 
find that the Atlanta area had failed to attain the 1-hour ozone NAAQS 
by November 15, 1999, the date set forth in the CAA for serious 
nonattainment areas. Subsequently, in a Federal Register notice 
published on May 7, 2002, (67 FR 30574) EPA granted final approval to 
the 1-hour ozone attainment demonstration for the Atlanta area as 
submitted on July 17, 2001, the Reasonably Available Control Measures 
(RACM) analysis, commitment to perform an early attainment assessment, 
contingency measures, the 2004 motor vehicle emissions budget (MVEB), 
and the Partnership for a Smog Free Georgia (PSG) program, and EPA 
extended the area's attainment date to November 15, 2004. At that time, 
EPA did not finalize the finding of failure to attain and the

[[Page 55470]]

Atlanta area remained classified as a serious nonattainment area.
    EPA cited its July 16, 1998, guidance memorandum entitled 
``Extension of Attainment Dates for Downwind Areas'' which was 
published in a notice of interpretation on March 25, 1999, (64 FR 
14441) as justification for the extension of the attainment date 
without reclassification. On July 2, 2002, the D.C. Circuit Court, 
Sierra Club v. EPA, 294 F.3d 155, determined that the CAA precluded the 
attainment date extension policy as a matter of law. The Seventh 
Circuit, Sierra Club v. EPA,, 311 F.3d 853 (7th Cir. Nov. 25, 2002), 
and the Fifth Circuit, Sierra Club v. EPA, 314 F.3d 735 (5th Cir. Dec. 
11, 2002) subsequently issued opinions that reached the same conclusion 
with respect to extensions granted to St. Louis, MO and Beaumont, TX 
\1\. In light of the decisions of these circuits, on February 20, 2003, 
the EPA filed a motion for voluntary vacatur of its extension of the 
attainment date deadline for the Atlanta 1-hour ozone nonattainment 
area and its approval of the Atlanta area 1-hour ozone attainment 
demonstration SIP. The Eleventh Circuit Court of Appeals granted EPA's 
request on June 16, 2003, and the Court remanded the matter to EPA for 
further proceedings consistent with the court's order.
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    \1\ In the wake of these decisions, EPA issued final rulemakings 
reclassifying the Washington, DC ozone nonattainment area, 68 FR 
3410 (January 24, 2003), and the St. Louis ozone nonattainment area, 
68 FR 4835 (January 30, 2003). (EPA subsequently redesignated the 
St. Louis area to attainment for the ozone standard 68 FR 25418 and 
68 FR 25442 (May 12, 2003).) In addition, in light of the Fifth 
Circuit's decision on Beaumont, EPA recently issued a final rule 
withdrawing a transport-based attainment date extension and 
reclassifying the Baton Rouge ozone nonattainment area (68 FR 20077 
(April 24, 2003)) and has proposed to do the same for the Beaumont 
area (68 FR 36756 (June 19, 2003)).
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II. Atlanta 1-Hour Ozone Nonattainment Area

    The Atlanta 1-hour ozone nonattainment area consists of the 
following counties: Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, 
Fayette, Forsyth, Fulton, Gwinnett, Henry, Paulding, and Rockdale.

III. Explanation of a SIP

    Section 110 of the CAA requires states to develop air pollution 
regulations and control strategies to ensure that state air quality 
meets the NAAQS established by EPA. These ambient standards are 
established under section 109 of the CAA, and they currently address 
six criteria pollutants: carbon monoxide, nitrogen dioxide, ozone, 
lead, particulate matter, and sulfur dioxide. Each state must submit 
these regulations and control strategies to us for approval and 
incorporation into the Federally-enforceable SIP. Each Federally-
approved SIP protects air quality primarily by addressing air pollution 
at its point of origin. These SIPs can be extensive. They may contain 
state regulations or other enforceable documents and supporting 
information such as emission inventories, monitoring networks, and 
modeling demonstrations.

IV. The NAAQS For Ozone

                                                          Table 1.--Summary of Ozone Standards
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               Standard                            Value                                Type                               Method of compliance
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1-hour................................  0.12 ppm..................  Primary and Secondary......................  Must not be exceeded, on average, more
                                                                                                                  than one day per year over any three-
                                                                                                                  year period at any monitor within an
                                                                                                                  area.
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 (Primary standards are designed to protect public health and secondary standards are designed to protect public welfare and the environment.)

    The 1-hour ozone standard of 0.12 parts per million (ppm) was 
promulgated in 1979. The 1-hour ozone standard continues to apply to 
the Atlanta area, and it is the classification of the Atlanta area with 
respect to the 1-hour ozone standard that is addressed in this 
document.

V. Application of the CAA Provisions Regarding Determinations of 
Nonattainment and Reclassifications

    On December 11, 2001, EPA proposed its finding that the Atlanta 
area did not attain the 1-hour ozone standard by the applicable date 
(66 FR 63972). In that notice of proposed rulemaking we discussed how 
we believed the provisions of section 181(b)(2), the relevant sections 
of the CAA regarding determinations of attainment and reclassifications 
for failure to attain, would apply to the Atlanta area. The proposed 
finding was based upon ambient ozone concentration data for the period 
1997 through 1999, from the monitoring sites in the Atlanta area, 
several of which recorded an average of more than one exceedance per 
year.
    Section 181(b)(2)(A) of the CAA requires that when EPA determines 
that an area has not attained the standard by its statutorily required 
date the area shall be reclassified by operation of law to the higher 
of:
    (1) The next higher classification for the area, or
    (2) The classification applicable to the area's design value as 
determined at the time EPA publishes its notice that the area failed to 
attain.
    Even if a serious area's design value at the time of 
reclassification is lower than the design value for serious areas that 
serious area cannot be reclassified to a lower classification because 
the minimum statutory classification resulting from a failure to attain 
is severe. No area can be reclassified to a category higher than 
severe. Extreme is the only classification higher than severe, but the 
statute does not permit reclassification to this level.
    The air quality data upon which we made the proposed finding of 
failure to attain the ozone NAAQS were available for comment in our 
December 11, 2001, notice of proposed rulemaking. We received no 
adverse comments pertaining to that air quality data and the proposed 
determination of nonattainment.

                      Table 2.--Air Quality Monitoring Data for the Atlanta Area 1997-1999
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                                                                Total         Annual average
              Site ID                      County          exceedances 97-   design expected      Design value
                                                                 99            exceedances           (ppm)
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13-089-0002.......................  DeKalb..............                16                6.7              0.142
13-089-3001.......................  DeKalb..............                10                4.4              0.135

[[Page 55471]]

 
13-097-0004.......................  Douglas.............                 9                3.5              0.131
13-121-0055.......................  Fulton..............                28               10.8              0.156
13-135-0002.......................  Gwinnett............                 7                2.9              0.138
13-223-0003.......................  Paulding............                 3                1.1              0.124
13-247-0001.......................  Rockdale............                28               10.3              0.153 
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*Only monitors with three complete years of data were used for these calculations.

    EPA has determined that the relevant air quality data for the 
period of 1997 through 1999, inclusive, for the Atlanta area shows that 
the Atlanta area contained at least one monitor with an average annual 
number of expected exceedances that was greater than the 1.0 allowed by 
the 1-hour ozone NAAQS. Therefore, we make the determination pursuant 
to section 181(b)(2)(B) of the CAA that the Atlanta area did not attain 
the 1-hour ozone standard by the November 15, 1999, attainment date, 
and that the area is reclassified by operation of law to severe 
nonattainment on the effective date of this rule.

VI. Necessity for This Action

    On May 7, 2002, EPA granted final approval to the 1-hour ozone 
attainment demonstration for the Atlanta area and extended the 
attainment date to November 15, 2004. Subsequently, the Southern 
Organizing Committee for Economic and Social Justice, the Georgia 
Coalition for the People's Agenda and the Sierra Club petitioned for 
review of the agency's action to the 11th Circuit Court of Appeals. Due 
to a series of prior rulings in other circuits that EPA's attainment 
date extension policy was invalid as a matter of law, EPA filed a 
motion for voluntary vacatur with the 11th Circuit Court of Appeals on 
February 20, 2003. The 11th Circuit granted the request for voluntary 
vacatur on June 16, 2003, and remanded the matter to the agency for 
further proceedings consistent with the court's order.

VII. Results of This Action

    In this action, EPA is issuing a final determination pursuant to 
section 181(b)(2) of the CAA, that the Atlanta area did not attain the 
1-hour ozone NAAQS by November 15, 1999. In doing so, EPA is fulfilling 
our nondiscretionary duty pursuant to the CAA. As a result of this 
final determination, the Atlanta area is reclassified by operation of 
law to severe ozone nonattainment pursuant to section 181(b)(2) of the 
CAA. In addition, this action sets the dates by which the Atlanta area 
must submit a SIP revision addressing the CAA's pollution control 
requirements for severe ozone nonattainment areas (the ``severe area 
SIP'') and to attain the 1-hour NAAQS for ozone.
    Section 182(i) states that the Administrator may adjust applicable 
deadlines (other than attainment dates) to the extent such adjustment 
is necessary or appropriate to assure consistency for submission of the 
requirements applicable to the reclassified area. An area reclassified 
to severe is required to submit SIP revisions addressing the severe 
area requirements for the 1-hour ozone NAAQS in section 182(d) and the 
penalty requirement in section 185.
    In the December 11, 2001, (66 FR 63972) supplemental proposed rule 
EPA requested comment on the time frame for the State to submit the 
severe area SIP requirements. The proposal requested comment on two 
potential time frames of 12 months and 18 months. No comments were 
received by EPA on this issue. Due to the short time frames, GAEPD in a 
letter dated September 8, 2003, agreed to submit all SIPs, with one 
exception, by July 1, 2004, which is less than the proposed time 
frames. The one exception is the section 185 penalty rule. This SIP is 
due 18 months after the effective date of this action, July 1, 2005, 
because the State will need the full 18 months to acquire the necessary 
statutory authority to implement this rule.

VIII. Reclassification

    Section 181(b)(2)(A) of the CAA requires that, when an area is 
reclassified for failure to attain, its reclassification be the higher 
of the next higher classification or the classification applicable to 
the area's ozone design value at the time the notice of 
reclassification is published in the Federal Register. Section 
181(b)(2)(A)(ii) provides that no area shall be reclassified as 
Extreme. The Atlanta area is a serious nonattainment area with a design 
value of 0.156 ppm based on monitoring data for the years 1997 to 1999. 
Therefore, the Atlanta area is reclassified, by operation of law, as a 
severe nonattainment area.

IX. Effective Date of Reclassification

    EPA is setting the effective date of this action as January 1, 
2004, because the GAEPD has calendar year contracts for sampling for 
the Georgia fuel rule, as well as, calendar year reporting 
requirements. The same suppliers and importers for the Georgia fuel 
rule will be impacted by the requirement, beginning one year after the 
effective date of the reclassification, to supply gasoline that 
complies with the federal reformulated gasoline standards. Therefore, 
this effective date will minimize complications regarding reporting and 
compliance with both the State and federal fuel requirements.

X. Severe Area Attainment Date

    Under section 181(a)(1) of the CAA, the new severe area attainment 
deadline for the Atlanta area as reclassified pursuant to section 
181(b)(2) is as expeditiously as practicable but no later than November 
15, 2005. The expeditiously as practicable attainment date will be 
determined as part of the approval of the severe area attainment 
demonstration.

XI. Severe Area Requirements SIP Submittal

    Under section 181(a)(1) of the CAA, the attainment deadline for 
serious ozone nonattainment areas reclassified to severe under section 
181(b)(2) is as expeditiously as practicable but no later than November 
15, 2005. Under section 182(i), such areas are required to submit SIP 
revisions addressing the severe area requirements for the 1-hour ozone 
NAAQS. Under section 182(d), severe area plans are required to meet all 
the requirements for serious area plans plus the requirements for 
severe areas, including, but not limited to: (1) A 25 ton per year 
major stationary source threshold; (2) additional reasonably available 
control technology (RACT) rules for sources subject to the new lower 
major applicability cutoff; (3) a

[[Page 55472]]

new source review (NSR) offset requirement of at least 1.3 to 1; (4) a 
post-1999 rate-of-progress plan containing emission reductions of ozone 
precursors of at least 3 percent per year from November 15, 1999, until 
the attainment date; and (5) additional transportation control measures 
(TCMs) needed to offset growth in emissions due to growth in vehicle 
miles traveled (VMT); and (6) a fee requirement for major sources of 
volatile organic compounds (VOC) and nitrogen oxides (NOX) 
should the area fail to attain by 2005. Additionally, section 211 
``Reformulated Gasoline and Oxygenated Gasoline'' of CAA requires any 
area reclassified from ``serious'' to ``severe'' to implement 
reformulated gasoline. We have issued a ``General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990'' 
that sets forth our preliminary views on these section 182 requirements 
and how we will act on SIPs submitted under Title I. See 57 FR 13498 
(April 16, 1992) and 57 FR 18070 (April 28, 1992). Further, Georgia is 
required to submit a revision to the SIP containing contingency 
measures under sections 172(c)(9) and 182(c)(9) for its severe area SIP 
to meet ROP requirements and for failure to attain.
    The GAEPD's severe SIP for the Atlanta area must also contain 
adopted regulations, and/or enforceable commitments to adopt and 
implement control measures in regulatory form by specified dates, 
sufficient to make the required rate-of-progress and to attain the 1-
hour ozone NAAQS as expeditiously as practicable but no later than 
November 15, 2005. These adopted regulations must include, at a 
minimum, the regulations to meet the specific requirements listed above 
and any other emission reductions necessary to achieve attainment.

XII. Rate-of-Progress (ROP) Schedule

    The section 182(c)(2)(B) reasonable further progress requirement 
requires volatile organic compounds (VOC) or nitrogen oxides 
(NOX) reductions of 3 percent per year, averaged over a 3-
year period, until the attainment date, for serious and above ozone 
nonattainment areas designated and classified under the 1-hour ozone 
NAAQS. The EPA refers to these reductions as the ROP requirement.
    The first required post-1999 ROP 9 percent reduction originally was 
required by November 15, 2002 under the CAA. However, that date has 
elapsed prior to the time Atlanta was redesignated and first became 
subject to the requirement. Therefore, in this action EPA is allowing 
the Atlanta area to demonstrate that the first required post-1999 9 
percent ROP is achieved as expeditiously as practicable after November 
15, 2002, but in any case no later than November 15, 2005. EPA is also 
allowing the Atlanta area to link contingency measures for the 2002 ROP 
milestone to this new date.
    In light of the fact that the statutory deadline has passed, it is 
impossible for the State to demonstrate any progress by a date that 
passed before the time the area became classified as a severe area and 
thus first became subject to the requirement to demonstrate post-1999 
ROP. EPA agrees that the Atlanta area must now demonstrate such 
progress, but reasonably concludes that the State must have some time 
in which to actually develop and implement the measures to achieve such 
ROP. EPA has addressed similar issues on several occasions in the past 
when areas for various reasons have not timely submitted progress SIPs, 
and when the date for achieving progress had passed prior to EPA action 
on a progress SIP. EPA has routinely concluded in these circumstances 
that the area should demonstrate the required ROP as expeditiously as 
practicable once the statutory date for achieving such ROP had passed. 
See, e.g., 65 FR 31485 (May 18, 2000), 63 FR 28898 (May 27, 1998), 62 
FR 31343 (June 9, 1997). Even though there is no provision in the 
statute expressly addressing the situation where an area has failed to 
timely submit a progress SIP, EPA must fill the statutory gap where 
such SIPs are submitted after the date for achieving progress, and EPA 
has reasonably done so in this case by following its past practice of 
requiring such SIPs to demonstrate ROP as expeditiously as practicable. 
Although no court has directly addressed the issue of the propriety of 
this ``as expeditious as practicable'' standard, courts have addressed 
other issues concerning ROP plans submitted after the statutory date 
for achieving ROP, which have demonstrated ROP as expeditiously as 
practicable, without expressing any concern with that standard. See, 
e.g., Sierra Club v. EPA, 252 F.3d 943 (8th Cir. 2001) (Court upheld 
calculation methods used in 15 percent ROP plan submitted three years 
after statutory date demonstrating achievement of ROP seven years after 
statutory date).
    For the reasons set forth in this final rulemaking notice and 
pursuant to section 182(i) of the CAA, EPA is allowing the Atlanta area 
to demonstrate the first required post-1999 9 percent ROP, due under 
the CAA by November 15, 2002, as expeditiously as practicable after 
that date (but in any case no later than November 15, 2005) in the 
event that control measures currently in the Atlanta area SIP or 
already promulgated by EPA did not achieve the required 9 percent 
reduction by November 15, 2002.
    The severe area SIP will have to provide for a total of a 3 percent 
per year reduction from base line emissions between November 15, 1999, 
and the attainment year. Because the 2002 ROP deadline is now past, the 
ROP reduction requirement for the period 1999 to 2002 will have to be 
achieved as expeditiously as practicable after November 15, 2002. EPA 
understands that the GAEPD would likely submit one ROP plan which 
includes all the ROP required until the attainment date, and will 
demonstrate that the 1999-2002 increment is achieved as expeditiously 
as practicable. The State must submit by July 1, 2004, an ROP plan to 
achieve a three percent reduction in the precursor emissions per year 
until the as expeditiously as practicable attainment year. 
Additionally, the area must submit adequate on-road mobile source 
emission budgets consistent with that plan.
    Because EPA is allowing the GAEPD to demonstrate the first required 
post-1999 9 percent ROP, due under the CAA by November 15, 2002, as 
expeditiously as practicable after that date (but in any case no later 
than November 15, 2005), EPA is also allowing the GAEPD to adopt 
contingency measures keyed to this new date. Thus, the GAEPD must 
submit contingency measures to take effect if the area fails to achieve 
the first post 1999 9 percent ROP by the as expeditiously as 
practicable date.

XIII. Use of MOBILE6 in SIP Submittals

    The January 18, 2002, memorandum from John S. Seitz and Margo 
Tsirigotis Oge ``Policy Guidance for the Use of MOBILE6 in SIP 
Development and Transportation Conformity'' indicates, among other 
things, that newly developed SIPS, including the motor vehicle 
emissions budgets in the post-1999 rate-of-progress plans, will have to 
be developed using MOBILE6. Using MOBILE6 may require a revision to the 
1990 base year inventory and ROP targets.

XIV. Impacts on the Title V Program

    Upon reclassification to severe, the major stationary source 
threshold will be lowered. Consequently, the State's Title V operating 
permits program regulations need to cover existing sources that will 
become subject to the appropriate lower major stationary source 
threshold. Any new major

[[Page 55473]]

stationary sources must submit a timely Title V permit application. ``A 
timely application for a source applying for a part 70 permit for the 
first time is one that is submitted within 12 months after the source 
becomes subject to the permit program or on or before such earlier date 
as the permitting authority may establish.'' See 40 CFR 70.5(a)(1). The 
12 month (or earlier date set by the applicable permitting authority) 
time period to submit a timely application will commence on the 
effective date of the reclassification.

XV. Vacatur of Previous Approval

    On May 7, 2002, EPA granted final approval to the 1-hour ozone 
attainment demonstration for the Atlanta area and extended the 
attainment date to November 15, 2004, (see 67 FR 30574). Subsequently, 
the Southern Organizing Committee for Economic and Social Justice, the 
Georgia Coalition for the People's Agenda and the Sierra Club 
petitioned for review of the agency's action to the 11th Circuit Court 
of Appeals alleging that EPA exceeded its authority because the CAA 
precludes extension of attainment dates. Due to a series of prior 
rulings, in other cases, which held that EPA's attainment date 
extension policy was an invalid exercise of EPA's authority, on 
February 20, 2003, EPA filed, with the 11th Circuit, a motion for 
voluntary vacatur of the attainment date extension for the Atlanta area 
and of EPA's approval of the attainment demonstration. On June 16, 
2003, the 11th Circuit granted the request for voluntary vacatur and 
remanded the matter to the agency for further proceedings consistent 
with this order.
    One result of vacating the attainment demonstration for the Atlanta 
area is that the MVEBs contained in that approval were vacated as well. 
The vacatur of the MVEB resulted in reverting to the previously 
approved MVEBs for the purposes of transportation conformity. These 
budgets can be found in the approval of the 15 Percent Rate of Progress 
plan and the Post 1996 Rate of Progress Plan. These plans were granted 
final approval on April 26, 1999, (see 64 FR 20186) and March 18, 1999, 
(see 64 FR 13348), respectively.

XVI. Comment and Response

    In the December 11, 2001, notice of supplemental proposed 
rulemaking (66 FR 63972) for this action, EPA proposed to find that the 
Atlanta area had failed to attain the 1-hour ozone NAAQS by November 
15, 1999, the date set forth in the CAA for serious nonattainment areas 
and that if EPA finalized this finding, the Atlanta area would be 
reclassified, by operation of law, as a severe nonattainment area. EPA 
also solicited comment on the schedule for submittal of the SIP 
revisions required for severe areas should the area be reclassified.
    In this document, EPA is responding to adverse comments that are 
germane to this final action and which were submitted in response to 
the December 11, 2001 (66 FR 63972), supplemental proposed rulemaking. 
EPA received no adverse comments pertaining to the data used for our 
nonattainment determination, and therefore we are making the 
determination that the Atlanta area did not attain by its attainment 
deadline.
    Comment: 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: 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 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).

XVII. Final Action

    For the reasons set forth in the notice of proposed rulemaking and 
in this final rulemaking notice, EPA has determined that the Atlanta 1-
hour ozone nonattainment area failed to attain the 1-hour ozone NAAQS 
by November 15, 1999, as required by section 181(a) of the CAA, and the 
Atlanta 1-hour ozone nonattainment area is reclassified by operation of 
law to severe ozone nonattainment pursuant to section 181(b)(2) of the 
CAA.

XVIII. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA is 
required to determine whether regulatory actions are significant and 
therefore should be subject to Office of Management and Budget (OMB) 
review, economic analysis, and the requirements of the Executive Order. 
The Executive Order defines a ``significant regulatory action'' as one 
that is likely to result in a rule that may meet at least one of the 
four criteria identified in section 3(f), including, under paragraph 
(1), that the rule may ``have an annual effect on the economy of $100 
million or more or adversely affect, in a material way, the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or state, local or tribal 
governments or communities.''
    The Agency has determined that the finding of nonattainment would 
result in none of the effects identified in section 3(f) of the 
Executive Order. Under section 181(b)(2) of the CAA, determinations of 
nonattainment are based upon air quality considerations and the 
resulting reclassifications must occur by operation of law. They do 
not, in and of themselves, impose any new requirements on any sectors 
of the economy. In addition, because the statutory requirements are 
clearly defined with respect to the differently classified areas, and 
because those requirements are automatically triggered by 
classifications that, in turn, are triggered by air quality values, 
determinations of nonattainment and reclassification cannot be said to 
impose a materially adverse impact on state, local, or tribal 
governments or communities.

B. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards

[[Page 55474]]

bodies. The NTTAA directs EPA to provide Congress, through OMB, 
explanations when the Agency decides not to use available and 
applicable voluntary consensus standards.
    This final action to reclassify the Atlanta area as a severe ozone 
nonattainment area and to adjust applicable deadlines does not involve 
technical standards. Therefore, EPA did not consider the use of any 
voluntary consensus standards.

C. Paperwork Reduction Act

    This final action to reclassify the Atlanta area as a severe ozone 
nonattainment area and to adjust applicable deadlines does not impose 
an information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    Determinations of nonattainment and the resulting reclassification 
of nonattainment areas by operation of law under section 181(b)(2) of 
the CAA do not in and of themselves create any new requirements. 
Instead, this rulemaking only makes a factual determination, and does 
not directly regulate any entities. See 62 FR 60001, 60007-8, and 60010 
(November 6, 1997) for additional analysis of the RFA implications of 
attainment determinations. Therefore, pursuant to 5 U.S.C. 605(b), I 
certify that this final action does not have a significant impact on a 
substantial number of small entities within the meaning of those terms 
for RFA purposes.

E. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(UMRA), signed into law on March 22, 1995, EPA must prepare a budgetary 
impact statement to accompany any proposed or final rule that includes 
a Federal mandate that may result in estimated annual costs to state, 
local, or tribal governments in the aggregate, or to the private 
sector, of $100 million or more. Under section 205, EPA must select the 
most cost-effective and least burdensome alternative that achieves the 
objectives of the rule and is consistent with statutory requirements. 
Section 203 requires EPA to establish a plan for informing and advising 
any small governments that may be significantly or uniquely impacted by 
the rule.
    EPA believes, as discussed previously in this document, that the 
finding of nonattainment is a factual determination based upon air 
quality considerations and that the resulting reclassification of the 
area must occur by operation of law. Thus, EPA believes that the 
proposed finding does not constitute a Federal mandate, as defined in 
section 101 of the UMRA, because it does not impose an enforceable duty 
on any entity.

F. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045, Protection of Children from Environmental 
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to 
any rule that: (1) Is determined to be economically significant as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This final 
action is not subject to Executive Order 13045 because this is not an 
economically significant regulatory action as defined by Executive 
Order 12866.

G. Executive Order 13132, Federalism

    Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999) requires EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have Federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that 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.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
Federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
Government provides the funds necessary to pay the direct compliance 
costs incurred by state and local governments, or EPA consults with 
state and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
Federalism implications and that preempts state law unless the Agency 
consults with state and local officials early in the process of 
developing the proposed regulation. This determination of nonattainment 
and the resulting reclassification of a nonattainment area by operation 
of law will 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), because this action does not, in and of itself, impose any 
new requirements on any sectors of the economy, and does not alter the 
relationship or the distribution of power and responsibilities 
established in the CAA. Thus, the requirements of section 6 of the 
Executive Order do not apply to these actions.

H. Executive Order 13175, Coordination With Indian Tribal Governments

    This final 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).

I. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    Under Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001), EPA must prepare for those matters identified as 
significant energy actions. A ``Significant energy action'' is any 
action by an agency (normally published in the Federal Register) that 
promulgates or is expected to lead to the promulgation of a final rule 
or regulation, including notices of inquiry, advance notices of 
proposed rulemaking, and notices of proposed rulemaking that is a 
significant regulatory action under Executive Order 12866 and is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy. Under Executive Order 12866, this action is not a 
``significant regulatory action''. For this reason, the proposed 
finding of nonattainment and reclassification is

[[Page 55475]]

also not subject to Executive Order 13211.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 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. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

K. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by November 25, 2003. 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 to reclassify the Atlanta area as a severe 
ozone nonattainment area and to adjust applicable deadlines may not be 
challenged later in proceedings to enforce its requirements. (See 
section 307(b)(2).)

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Dated: September 15, 2003.
J.I. Palmer, Jr.,
Regional Administrator, Region 4.

0
40 CFR part 81 is amended as follows:

PART 81--[AMENDED]

0
1. The authority citation for part 81 continues to read as follows:

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

0
2. In Sec.  81.311 the table entitled ``Georgia--Ozone (1-hour 
standard)'' is amended by revising the entry for the Atlanta area to 
read as follows:


Sec.  81.311  Georgia.

* * * * *

                                                            Georgia--Ozone (1-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Designation                                             Classification
            Designated area            -----------------------------------------------------------------------------------------------------------------
                                           Date \1\                       Type                      Date \1\                  Classification
--------------------------------------------------------------------------------------------------------------------------------------------------------
Atlanta Area:
    Cherokee County...................      11/15/1990  Nonattainment..........................       1/01/2004  Severe.
    Clayton County....................      11/15/1990  Nonattainment..........................       1/01/2004  Severe.
    Cobb County.......................      11/15/1990  Nonattainment..........................       1/01/2004  Severe.
    Coweta County.....................      11/15/1990  Nonattainment..........................       1/01/2004  Severe.
    DeKalb County.....................      11/15/1990  Nonattainment..........................       1/01/2004  Severe.
    Douglas County....................      11/15/1990  Nonattainment..........................       1/01/2004  Severe.
    Fayette County....................      11/15/1990  Nonattainment..........................       1/01/2004  Severe.
    Forsyth County....................      11/15/1990  Nonattainment..........................       1/01/2004  Severe.
    Fulton County.....................      11/15/1990  Nonattainment..........................       1/01/2004  Severe.
    Gwinnett County...................      11/15/1990  Nonattainment..........................       1/01/2004  Severe.
    Henry County......................      11/15/1990  Nonattainment..........................       1/01/2004  Severe.
    Paulding County...................      11/15/1990  Nonattainment..........................       1/01/2004  Severe.
    Rockdale County...................      11/15/1990  Nonattainment..........................       1/01/2004  Severe.
 
                                                                     * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
 \1\ This date is October 18, 2000, unless otherwise noted.

[FR Doc. 03-24404 Filed 9-25-03; 8:45 am]
BILLING CODE 6560-50-P