[Federal Register Volume 72, Number 110 (Friday, June 8, 2007)]
[Proposed Rules]
[Pages 31771-31778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11036]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51, 78, and 97

[EPA-HQ-OAR-2004-0439, FRL-8323-4]
RIN 2060-AN12


Petition for Reconsideration and Proposal for Withdrawal of 
Findings of Significant Contribution and Rulemaking for Georgia for 
Purposes of Reducing Ozone Interstate Transport

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: In this action, we are requesting comments on EPA's response 
to a Petition for Reconsideration regarding a final rule we issued 
under Section 110 of the Clean Air Act (CAA) related to the interstate 
transport of nitrogen oxides (NOX).
    On April 21, 2004, we issued a final rule (Phase II NOX 
SIP Call Rule) that required the State of Georgia to submit revisions 
to its State Implementation Plan (SIP) that prohibit specified amounts 
of NOX emissions--one of the precursors to ozone (smog) 
pollution--for the purposes of reducing NOX and ozone 
transport across State boundaries in the eastern half of the United 
States. This rule became effective on June 21, 2004.
    Subsequently, the Georgia Coalition for Sound Environmental Policy 
(GCSEP or Petitioners) filed a Petition for Reconsideration requesting 
that EPA reconsider the applicability of the NOX SIP Call 
Rule to the State of Georgia. In response to this Petition, and based 
upon review of additional available information, EPA is proposing to 
remove Georgia from the NOX SIP call region. Specifically, 
EPA proposes to rescind the applicability of the requirements of the 
Phase II NOX SIP Call Rule to the State of Georgia, only.

DATES: Comments. Comments must be received on or before July 23, 2007.
    Public Hearing. If anyone contacts us requesting to speak at a 
public hearing by June 25, 2007, we will hold a public hearing and hold 
the record open for purposes of rebuttal comments. Additional 
information about the hearing and rebuttal comments would be published 
in a subsequent Federal Register notice.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2005-0439, by one of the following methods:
     http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: (202) 566-9744.
     Mail: Attention Docket ID No. EPA-HQ-OAR-2004-0439, U.S. 
Environmental Protection Agency, EPA West (Air Docket), Room 3334, 1301 
Constitution Avenue, Northwest, Washington, DC. Please include a total 
of two copies.
     Hand Delivery: U.S. Environmental Protection Agency, EPA 
West (Air Docket), 1301 Constitution Avenue, Northwest, Room 3334, 
Washington, DC 20004. Such deliveries are only accepted during the 
Docket's normal hours of operation, and special arrangements should be 
made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2004-0439. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air Docket, EPA/DC, EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. This 
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Air 
Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Tim Smith, Air Quality Policy 
Division, Geographic Strategies Group (C539-04), Environmental 
Protection Agency, Research Triangle Park, NC 27711, telephone (919) 
541-4718, e-mail [email protected]. For legal questions, please contact 
Winifred Okoye, U.S.

[[Page 31772]]

EPA, Office of General Counsel, Mail Code 2344A, 1200 Pennsylvania 
Avenue, NW., Washington, DC 20460, telephone (202) 564-5446, e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    This action proposes to remove the applicability of certain 
requirements related to NOX emissions in the State of 
Georgia. If these requirements were not removed, they would potentially 
affect electric utilities, cement manufacturing, and industries 
employing large stationary source internal combustion engines.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit information that you consider to 
be CBI electronically through www.regulations.gov or e-mail. Clearly 
mark the part or all of the information that you claim to be CBI. For 
CBI information in a disk or CD ROM that you mail to EPA, mark the 
outside of the disk or CD ROM as CBI and then identify electronically 
within the disk or CD ROM the specific information that is claimed as 
CBI. In addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR Part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (e.g., subject heading, Federal Register 
proposal publication date and reference page number(s)).
     Follow directions--The EPA may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and provide substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the specified comment 
period deadline.
    Commenters wishing to submit proprietary information for 
consideration must clearly distinguish such information from other 
comments and clearly label it as CBI. Send submissions containing such 
proprietary information directly to the following address, and not to 
the public docket, to ensure that proprietary information is not 
inadvertently placed in the docket: Attention: Mr. Roberto Morales, 
U.S. Environmental Protection Agency, OAQPS Document Control Officer, 
109 TW Alexander Drive, Room C404-02, Research Triangle Park, NC 27711. 
The EPA will disclose information identified as CBI only to the extent 
allowed by the procedures set forth in 40 CFR part 2. If no claim of 
confidentiality accompanies a submission when it is received by EPA, 
the information may be made available to the public without further 
notice to the commenter.

C. How Can I Find Information About a Possible Hearing?

    People interested in presenting oral testimony or inquiring as to 
whether a hearing is to be held should contact Ms. Pam Long, Air 
Quality Planning Division, Office of Air Quality Planning and Standards 
(C504-03), U.S. Environmental Protection Agency, Research Triangle 
Park, NC 27711, telephone (919) 541-0641, fax number (919) 541-5509, e-
mail address [email protected], at least 2 days in advance of the public 
hearing. People interested in attending the public hearing should also 
call Ms. Long to verify the time, date, and location of the hearing. 
The public hearing will provide interested parties the opportunity to 
present data, views, or arguments concerning the proposed action. If a 
public hearing is held, further information will be contained in a 
subsequent notice, including the scheduled date, and it will be held at 
9:00 a.m. in EPA's Auditorium in Research Triangle Park, North 
Carolina, or at an alternate site nearby.

D. How Is This Preamble Organized?

    The information presented in this preamble is organized as follows:

I. General Information
    A. Does This Action Apply to Me?
    B. What Should I Consider as I Prepare My Comments for EPA?
    C. How Can I Find Information About a Possible Hearing?
    D. How is This Preamble Organized?
II. Background
    A. Background on NOX SIP Call, Subsequent Litigation 
and Rulemaking Related to the State of Georgia
    B. GCSEP Requests Related to Phase II NOX SIP Call 
Rule
    C. Purpose of this Proposal.
III. Proposed Response to GCSEP's Petition for Reconsideration
    A. Proposed Action
    B. Rationale for Proposed Action
    C. Other Issues Raised by the Petitioner.
IV. Response to Previous Comments on the Reconsideration Issue
V. Request for Public Comment on Issues Contained in the Petition
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

II. Background

A. Background on NOX SIP Call, Subsequent Litigation and Rulemaking 
Related to the State of Georgia

    On October 27, 1998, EPA took final action to prohibit specified 
amounts of emissions of oxides of Nitrogen (NOX), one of the 
main precursors of ground-level ozone, from being transported across 
State boundaries in the eastern half of the United States. (The 
NOX SIP Call Rule) (63 FR 57356, (October 27, 1998)). We 
found that sources and emitting activities in 22 States and the 
District of Columbia (23 States) \1\ were emitting NOX in 
amounts that significantly contribute to downwind nonattainment of the 
1-hour ozone national ambient air quality standard (NAAQS or standard). 
(63 FR 57356). We also determined separately that sources and emitting 
activities in these

[[Page 31773]]

23 States emit NOX in amounts that significantly contribute 
to and interfere with maintenance of downwind nonattainment of the 8-
hour ozone NAAQS (63 FR 57358, 57379)). To determine significant 
contribution, we examined both the air quality impacts of emissions and 
the amount of reductions that could be achieved through the application 
of highly cost effective controls. The air quality impacts portion of 
our significant contribution analysis relied on state specific 
modeling, and modeling and recommendations by the Ozone Transport 
Assessment Group (OTAG) (62 FR 60335,(November 7, 1997), and 63 FR 
57381-57399).
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    \1\ The 23 states were Alabama, Connecticut, Delaware, District 
of Columbia, Georgia, Illinois, Indiana, Kentucky, Maryland, 
Massachusetts, Michigan, Missouri, North Carolina, New Jersey, New 
York, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, 
Virginia, West Virginia, and Wisconsin (63 FR 57394).
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    This analysis examined the impact of upwind emissions on downwind 
nonattainment areas. The preamble defined nonattainment for purposes of 
this analysis. It stated that a downwind area should be considered,

    ``nonattainment,'' for purposes of section 110(a)(2)(D)(i)(I), 
under the 1-hour ozone NAAQS if the area (as of 1994-96 time period) 
had nonattainment air quality and if the area was modeled to have 
nonattainment air quality in the year 2007, after implementation of 
all measures specifically required of the area under the CAA as well 
as implementation of Federal measures required or expected to be 
implemented by that date.

63 FR 57386; See also 63 FR 57373-75; 62 FR 60324-25. We explained that 
``nonattainment [areas] includes areas that have monitored violations 
of the standard and areas that 'contribute to ambient air quality in a 
nearby area' that is violating the standard.'' 63 FR 57373. Thus, to 
qualify as a downwind nonattainment receptor, an area had to be both in 
current nonattainment and also modeled to have nonattainment air 
quality in 2007. An area shown to be in attainment at either time was 
not considered a downwind receptor. 63 FR 57371, 73-75, 57382-83. See 
also 63 FR 57385-87 for our discussion on the determination of downwind 
nonattainment receptors.
    We assessed each upwind State's contribution to the 1-hour standard 
downwind nonattainment independent of the State's contribution to the 
8-hour standard nonattainment. 62 FR 60326; 63 FR 57377 and 57395. We 
determined and concluded that the level of NOX emissions 
reductions necessary to address the significant contribution for the 8-
hour NAAQS would be achieved using the same control measures for the 1-
hour standard (63 FR 57446). Therefore, we promulgated only one 
NOX emissions budget for each of the affected upwind States 
(63 FR 57439). Further, we required these States to submit revised 
SIPs, prohibiting those amounts of NOX emissions such that 
any remaining emissions would not exceed the level specified in the 
NOX SIP Call regulations for that State in 2007. 62 FR 
60364-5; 63 FR 57378 and 57426.
    With regard to the State of Georgia, we determined that sources and 
emitting activities in the State of Georgia were significantly 
contributing to the 1-hour standard nonattainment in Birmingham, 
Alabama and Memphis, Tennessee (63 FR 57394). At the time the 
NOX SIP Call Rule was being developed, monitored air quality 
data for 1994-1996 indicated that Memphis, Tennessee had nonattainment 
air quality \2\ although we had redesignated the Memphis, Tennessee 
nonattainment area as an attainment area in 1995.\3\ 60 FR 3352, 
(January 17, 1995). Further, Birmingham, Alabama was a designated 
nonattainment area for the 1-hour ozone NAAQS at the time we issued the 
SIP Call. In addition, the modeling done at that time showed that 
receptors in the Memphis and Birmingham areas were modeled to have 
nonattainment air quality in the year 2007. Thus, Memphis, Tennessee 
and Birmingham, Alabama were ``nonattainment'' areas for purposes of 
the NOX SIP Call Rule.
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    \2\ Monitored air quality data indicated that the Memphis, 
Tennessee nonattainment area had nonattainment air quality from 1994 
through 2000. Since 2001, the Memphis, Tennessee nonattainment area 
has had monitored attainment air quality data.
    \3\ In the NOX SIP Call Rule, we relied on the 
designated area solely as a proxy to determine which areas have air 
quality in nonattainment. ``Our reliance on designated nonattainment 
areas for purposes of the 1-hour NAAQS does not indicate that the 
reference in section 110(a)(2)(D)(i)(I) to `nonattainment' should be 
interpreted to refer to areas designated nonattainment.'' 63 FR 
57375 n.25.
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    A number of parties, including certain States as well as industry 
and labor groups, challenged the NOX SIP Call Rule. 
Specifically, Georgia and Missouri industry petitioners, citing the 
OTAG modeling and recommendations, maintained that EPA had record 
support for the inclusion of only eastern Missouri and northern Georgia 
as contributing significantly to downwind nonattainment. The United 
States Court of Appeals for the District of Columbia (D.C. Circuit or 
Court), upheld our findings of significant contribution for almost all 
jurisdictions covered by the NOX SIP Call, with respect to 
the 1-hour standard \4\ but vacated and remanded the inclusion of 
Georgia and Missouri, Michigan v. EPA, 213 F. 3d 663 (D.C. Cir. 2000), 
cert. denied, 121 S. Ct. 1225 (2001)(Michigan). The Court agreed with 
the litigants that only the Eastern portion of Missouri and Northern 
portion of Georgia were within a geographic area for photochemical 
modeling known as the ``fine grid,'' and thus, the record for the 
rulemaking supported only including those portions of the two 
States.\5\ Subsequently, in response to the Court decision in Michigan, 
we proposed (in what is referred to as the ``Phase II NOX 
SIP Call rule''), the inclusion of only the fine grid parts of the 
States of Georgia and Missouri in the NOX SIP Call with 
respect to the 1-hour standard only. (67 FR 8396, (February 22, 2002)). 
We also proposed revised NOX budgets for the States of 
Georgia and Missouri that would include only the fine grid portions of 
these States. On April 21, 2004, we finalized the Phase II 
NOX SIP Call rule. This rule included eastern Missouri and 
northern Georgia as proposed, allocated revised NOX budgets 
that reflected the inclusion of sources in only these areas, and set 
revised SIP submittal and full compliance dates of April 1, 2005 and 
May 1, 2007, respectively. 69 FR 21604, (April 21, 2004).
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    \4\ In light of various challenges to the 8-hour standard, we 
stayed the 8-hour basis for the NOX SIP Call rule 
indefinitely. (65 FR 56245, (September 18, 2000).
    \5\ As the Court stated, ``[a]ccordingly, they say the 
NOX Budget for Missouri and Georgia should be based 
solely on those emissions.'' 213 F. 3d at 684.
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B. GCSEP Requests Related to Phase II NOX SIP Call Rule

    After our promulgation of the Phase II NOX SIP Call 
rule, GCSEP, on June 16, 2004, took several legal actions: (1) A 
request that EPA reconsider the rulemaking in light of new information 
(2) a request that EPA stay the effectiveness of the rule pending a 
review of that information, and (3) a formal challenge to the rule in 
Federal Courts.
    Petition for Reconsideration. GCSEP requested that EPA ``convene a 
proceeding for reconsideration of the rule,'' under section 
307(d)(7)(B) of the Act. (Petition for Reconsideration, June 16, 2004) 
(Petition). GCSEP made this request based on assertions that:

--Certain events occurred after the close of notice and comment period 
of our February 21, 2002, proposal (that is, these events occurred 
after April 15, 2002), and
--EPA needed to reopen the rule for public notice and comment on those 
specific events.
    GCSEP asserted that it ``was impracticable to raise [its] objection 
within [the provided comment period] or [that] the grounds for [its] 
objection arose after the public comment period (but within the time 
specified for judicial review).'' Section 307(d)(7)(B).

[[Page 31774]]

In addition, GCSEP further asserted that its objection was ``of central 
relevance to the outcome of the rule.'' Section 307(d)(7)(B).
    Request for Stay of Effectiveness. GCSEP also requested a stay of 
the effectiveness of the Phase II NOX SIP Call Rule as it 
relates to the State of Georgia only. The stay would delay the 
applicability of Phase II NOX SIP Call requirements to 
Georgia during the period EPA would conduct notice-and-comment 
rulemaking to address the issues raised in the Petition (i.e., the 
action initiated in this notice). On March 1, 2005, EPA proposed to 
stay the effectiveness of the Phase II NOX SIP Call Rule as 
requested by GCSEP. (70 FR 9897, (March 1, 2005)). Four parties 
commented on the proposed rule, raising issues related to the merits of 
the stay, and also raising issues related to the merits of the 
Petition. On August 31, 2005, EPA finalized, as proposed, a stay of the 
effectiveness of the Phase II NOX SIP Call Rule as it 
related to Georgia only. (70 FR 51591, (August 31, 2005)). EPA also 
responded to comments on the stay but indicated that it would respond 
to comments on the reconsideration in any subsequent reconsideration 
action.
    Challenge in Circuit Court. Finally, GCSEP filed a challenge to the 
Phase II NOX SIP call rule in the Court of Appeals for the 
11th Circuit, which has since been transferred to the D.C. Circuit. 
Georgia Coalition for Sound Environmental Policy v. EPA, Case No. 04-
13088-C. The EPA and GCSEP have requested and the Court has granted the 
request to hold the challenge in abeyance pending completion of the 
present rulemaking.

C. Purpose of This Proposal

    This proposal initiates the process to respond to the Petition for 
Reconsideration. We propose to agree with the central point raised by 
the petitioner. That is, we propose to amend EPA regulations as 
recommended by GCSEP to remove only the State of Georgia from inclusion 
in the Phase II NOX SIP call rule based on additional 
information that became available after the close of the comment period 
for the proposed Phase II rule. We are not reopening any other portions 
of the NOX SIP Call and Phase II NOX SIP Call 
rules for public comment and reconsideration.
    The primary purpose of this notice is to provide our rationale and 
an opportunity to comment on our proposed response to the Petition.
    As noted in Section III below, the four parties who commented on 
the March 1, 2005 proposal related to the Stay of Effectiveness also 
provided a number of comments related to the Petition for 
Reconsideration. In this notice, we respond to a number of issues 
raised in these previous comments. We will fully respond to all 
substantive comments on the reconsideration in the final action on this 
proposal.

III. Proposed Response to GCSEP's Petition for Reconsideration

A. Proposed Action

    The EPA proposes to amend the Phase II NOX SIP call rule 
to remove the State of Georgia only. The EPA proposes to agree with 
GCSEP's request, and in this action we are proposing to rescind or 
withdraw our finding that sources and emitting activities in the State 
of Georgia emit NOX in amounts that significantly contribute 
to nonattainment of the 1-hour ozone standard in nonattainment areas in 
other States. We request comment on this proposal. We are not reopening 
any other portions of the NOX SIP Call and Phase II 
NOX SIP Call rules for public comment and reconsideration.

B. Rationale for Proposed Action

    In the Petition for Reconsideration, GCSEP argued that the State of 
Georgia did not meet EPA's stated rationale for the NOX SIP 
call when EPA promulgated the Phase II NOX SIP Call rule. In 
short, GCSEP argued that (1) EPA based its inclusion of Northern 
Georgia on a finding that Northern Georgia contributes to nonattainment 
of the one-hour standard in Birmingham, Alabama and Memphis, Tennessee; 
(2) neither Birmingham nor Memphis was a nonattainment area at the time 
of the Phase II rulemaking; and (3) as a result of the revised 
attainment status of Birmingham and Memphis, there are no 1-hour ozone 
nonattainment areas in any States affected by NOX emissions 
from Northern Georgia, and (4) therefore Northern Georgia no longer 
satisfied EPA's stated rationale for inclusion in the NOX 
SIP call regulation. On each of these points, EPA proposes to agree.
    In the 1998 NOX SIP Call Rule, we articulated a test for 
selecting the receptors used in evaluating impacts on downwind 
``nonattainment,'' under section 110(a)(2)(D)(i)(I). We defined 
``nonattainment'' areas as including ``areas that have monitored 
violations of the standard and areas that `contribute to ambient air 
quality in a nearby area' that is violating the standard'' (63 FR 
57373; See also, 63 FR 57375-85). Additionally, as noted previously, to 
be defined as ``nonattainment'' receptors, the receptor also had to be 
modeled to have nonattainment air quality in the year 2007.
    As earlier explained, with regard to the State of Georgia, EPA 
determined that sources and emitting activity in this State emit 
NOX in amounts that significantly contribute to 
nonattainment of the 1-hour ozone standard in the Birmingham, Alabama 
and Memphis, Tennessee nonattainment areas (63 FR 57394). Although we 
had redesignated the Memphis, Tennessee nonattainment area in 1995, 
monitored air quality data for 1994-1996 indicated nonattainment air 
quality.\6\ Birmingham, Alabama was designated nonattainment for the 1-
hour ozone NAAQS and also had nonattainment air quality. Thus, at the 
time of the promulgation of the 1998 NOX SIP Call rule, both 
Memphis, Tennessee and Birmingham, Alabama were in ``nonattainment'' 
for purposes of the NOX SIP Call Rule. In addition, modeling 
done at that time showed that both areas were also projected to have 
nonattainment air quality in 2007.
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    \6\ Monitored air quality data indicated that the Memphis, 
Tennessee nonattainment area had nonattainment air quality from 1994 
through 2000. Since 2001, the Memphis, Tennessee nonattainment area 
has had monitored attainment air quality data.
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    We have now redesignated these areas to 1-hour ozone attainment 
areas and both currently have monitored air quality data that does not 
violate the 1-hour ozone standard. More specifically, on March 12, 
2004, we redesignated Birmingham, Alabama, to attainment of the 1-hour 
ozone NAAQS. 69 FR 11798, (March 12, 2004). In addition, the Memphis, 
Tennessee nonattainment area, which was redesignated in 1995 has had 
monitored attainment air quality data since 2001.
    Therefore, we agree with GCSEP that after promulgation of the 
NOX SIP Call Rule in 1998, both Memphis, Tennessee and 
Birmingham, Alabama now show attainment of the 1-hour ozone standard. 
Thus, they no longer meet the definition of ``nonattainment'' used in 
the 1998 NOX SIP Call to identify downwind receptor areas 
for the air quality impacts portion of the significant contribution 
analysis.
    In light of the fact that both downwind receptor areas no longer 
qualify as nonattainment areas for purposes of the significant 
contribution analysis, we are proposing to withdraw our findings of 
significant contribution for the State of Georgia for the 1-hr 
standard. This in effect would mean that the State of Georgia would no 
longer be required to submit a revised SIP, by April 1, 2005, that 
prohibits certain amounts of NOX emissions. Additionally, we 
would no longer require the State of Georgia to adopt and implement 
NOX control measures,

[[Page 31775]]

(originally required by May 1, 2007), that ensure the State achieves 
the aggregate NOX emissions budget set out in the Phase II 
NOX SIP Call Rule in the 2007 ozone season. There are no 
other areas that would be affected by our decision to withdraw the 
findings of significant contribution for the State of Georgia. We are 
soliciting comments on this proposal.

C. Other Issues Raised by the Petitioner

    In addition to the issue of our redesignation of downwind 
receptors, discussed above, GCSEP raised a number of additional issues 
and concerns in its petition. GCSEP believes these additional issues 
and concerns provide additional rationale for its petition, and for the 
recommendation to not include Georgia in the NOX SIP call 
regulations. Because EPA is proposing to rescind the findings of 
significant contribution for the State of Georgia, and therefore, the 
requirement to comply with the NOX SIP call requirements, we 
do not believe that we need to take comment on these additional issues 
and concerns. Moreover, we believe that petitioners could have raised 
most of these issues and concerns during the comment period for the 
Phase II rulemaking. Therefore, we do not believe that they are of 
central relevance to the outcome of that rulemaking. Section 
307(d)(7)(B) requires a petitioner to make a showing that it was 
``impracticable to raise [an] objection within the provided comment 
period or [that] the grounds for such objection arose after the period 
for public comment * * * and that such objection is of central 
relevance to the outcome of the rule.'' Because EPA is proposing to 
rescind the SIP call requirements for Georgia on the grounds discussed 
herein, we do not believe it is either necessary or appropriate to 
respond to these additional arguments in this notice. A brief summary 
of each of these additional points is contained below:
    Flaws in SIP call methodology. GCSEP's petition asserts that the 
CAA requires State-specific findings regarding a State's contribution. 
Citing CAA language in sections 110(k)(5) and 110(a)(2)(D), and noting 
that the NOX SIP Call relied on ``subregional'' runs with 
multi-State aggregations, GCSEP argues that the NOX SIP Call 
was flawed.
    Changes to Georgia's SIP. GCSEP's petition notes that Georgia's 
current SIP contains regulations that achieve additional NOX 
reductions which went into effect between May 1, 2003 and June 1, 2004. 
For example, NOX emissions from electric generating units 
(EGUs), in the fine grid area of Georgia were reduced approximately 66% 
from 2000 levels. Because these required emissions reductions were not 
part of Georgia's SIP when EPA originally evaluated the adequacy of the 
SIP in 1997 and 1998, GCSEP argues that the Phase II NOX SIP 
Call Rule should have revisited its prior determination that the SIP 
was ``inadequate'' to prevent significant downwind impacts.
    EPA's analysis outdated. GCSEP notes that there is a significant 
time period between EPA's additional analysis of the original 1998 rule 
and the Final Phase II rule in 2004. As a result, GCSEP asserts that 
EPA's record and basis for including Georgia in the SIP Call is so 
``stale'' that data can no longer be used to support EPA's decision.
    Assertions that EPA's decision to proceed with the final rule is 
arbitrary and capricious. GCSEP argues in the petition that EPA was 
``arbritrary and capricious'' in including Georgia in its final rule 
without considering new information related to redesignation of areas 
in Alabama and Tennessee. In support of this argument, GCSEP discusses 
hypothetical arguments EPA might have made in rejecting its petition 
for reconsideration, using a response to a comment regarding our 
continued inclusion of Missouri in the Phase II NOX SIP Call 
Rule. (69 FR 21626-27).

IV. Response to Previous Comments on the Reconsideration Issue

    As we stated in the final rule staying the effectiveness of the 
requirements of Phase II in Georgia, we received four comments raising 
issues that we deemed beyond the scope of the proposed stay. In this 
notice, EPA is now providing responses to those comments because we had 
indicated that we would be responding to them within the context of 
this rulemaking. (70 FR 51594).
    Lack of a NOX emissions cap. Two commenters--the North 
Carolina Division of Air Quality (NCDAQ), and the Alabama Department of 
Environmental Management (ADEM)--opposed GCSEP's request for 
reconsideration and recommendation to remove Georgia from the SIP call 
regulations. Both NCDAQ and ADEM acknowledged that the current Georgia 
ozone SIP may currently be achieving greater NOX emissions 
reductions from Georgia sources that would have been subject to the 
NOX SIP call. Nonetheless, both NCDAQ and ADEM expressed 
concerns that sources of NOX emissions in Georgia would not 
be subject to an emissions cap unlike sources located in neighboring 
states that are subject to the NOX SIP Call Rule.
    The EPA agrees that certain sources in Georgia would not formally 
be subject to an emissions cap. The EPA believes, however, that in 
practice it is extremely unlikely that NOX emissions in 
Georgia could increase above the levels required by the NOX 
SIP Call even in the absence of a cap. The principal reason that 
emissions will not increase is that local NOX emission 
reductions continue to be needed to address 8-hour ozone nonattainment 
in Atlanta. Given this long term need, SIP revisions will continually 
seek and provide decreases in NOX emissions. See also our 
response below to the comment on the effect of our removal of Georgia 
from the NOX SIP Call Rule on 8-hour ozone standard 
nonattainment downwind areas.
    Effects on downwind 8-hour ozone standard nonattainment. Both NCDAQ 
and ADEM expressed concerns that the lack of a ``cap'' on certain 
sources in Georgia may impede the ability of neighboring States to meet 
and maintain the 8-hour ozone NAAQS.
    The EPA believes that current analyses show that sources and 
emitting activities in Georgia do not contribute significantly to 8-
hour ozone standard nonattainment in any other States. In the analysis 
for the final Clean Air Interstate Rule (CAIR),(70 FR 25162, (May 12, 
2005)), EPA concluded that sources and emitting activities in Georgia 
do not significantly contribute to ozone nonattainment in other States, 
and accordingly, did not include Georgia within the region subject to 
NOX caps under CAIR for the ozone season.
    ADEM notes in their comments that the CAIR modeling analysis 
assumed full implementation of the NOX SIP call in all 
affected States including Georgia. Although the ADEM does not make this 
point specifically, EPA infers from this comment a suggestion that EPA 
would have to revisit the CAIR modeling, without subjecting Georgia to 
the NOX SIP call, for EPA's conclusions related to Georgia's 
contribution in other States to continue to be supportable.
    The EPA believes there is ample evidence that shows that the 
current Atlanta SIP reductions achieves greater reductions than would 
have been required by the Phase II NOX SIP Call Rule. The 
EPA has conducted an analysis, included in the docket for this rule, 
which shows that this is currently the case. Control measures 
implemented for the 1-hour ozone attainment demonstration for the 
Atlanta area were phased in beginning in 1999 and were fully 
implemented by the 2003 ozone

[[Page 31776]]

season. This analysis showed, for example, that:

-- Due to the 1999 Atlanta attainment SIP, five EGUs are limited to the 
equivalent of 0.13 lb/million BTU (five plant average). In combination 
with the two remaining EGUs, there is a seven plant limit of 0.20 lb/
million BTU.
-- Total NOX reductions modeled for the Atlanta attainment 
SIP were 431 tons per day, while the Phase II NOX SIP Call 
Rule would have achieved emission reductions of 387 tons per day of 
NOX (59,258 tons per ozone season (69 FR 21629). Thus, total 
emission reductions from the Atlanta attainment SIP were estimated to 
be at least as great as reductions from the Phase II NOX SIP 
Call Rule.
-- Future emissions projections of EGU emissions, conducted by EPA 
using its integrated planning model (IPM), indicate that some EGUs 
located within the fine grid area will be controlled by advanced 
NOX controls (selective catalytic reduction), based on the 
Atlanta attainment SIP instead of the projected Phase II SIP SIP Call 
requirements.
-- The Atlanta attainment SIP achieves substantial NOX 
emission reductions from non-EGU control measures in the Atlanta 
control plan. This includes, for example, RACT requirements for sources 
not included in the NOX SIP Call Rule, and restrictions on 
open burning.

    Moreover, as noted previously, Georgia will need further reductions 
in NOX emissions over time to continue to address 8-hour 
ozone nonattainment in Atlanta. Accordingly, EPA finds no basis to 
question its conclusion in the CAIR analysis that Georgia emissions do 
not contribute to 8-hour ozone nonattainment in other States.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO. This action is 
proposing to grant a petition of reconsideration requesting that the 
State of Georgia not be included in the NOX SIP Call and 
does not impose any additional control requirements or incur any 
additional costs.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
because the action proposes to remove a regulatory requirement.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedures Act or any other statute 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 organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this proposed rule on 
small entities, small entity is defined as: (1) A small business as 
defined in the Small Business Administration's (SBA) regulations at 13 
CFR 12.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of this proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves regulatory burden, or otherwise has a positive economic effect 
on all of the small entities subject to the rule.
    This action neither imposes requirements on small entities, nor 
will there be impacts on small entities beyond those, if any, required 
by or resulting from the NOX SIP Call and the Section 126 
Rules. We have therefore concluded that this proposed rule will relieve 
regulatory burden for all small entities affected by this rule. We 
continue to be interested in the potential impacts of the proposed rule 
on small entities and welcome comments on issues related to such 
impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for any proposed or final rules with ``Federal mandates'' 
that may result in the expenditure to State, local, and Tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more in any 1 year. Before promulgating a rule for which a 
written statement is needed, section 205 of the UMRA generally requires 
EPA to identify and consider a reasonable number of regulatory 
alternatives and adopt the least costly, most cost-effective or least 
burdensome alternative that achieves the objectives of the rule. The 
provisions of section 205 do not apply when they are inconsistent with 
applicable law. Moreover, section 205 allows EPA to adopt an 
alternative other than the least costly, most cost-effective or least 
burdensome alternative if the Administrator publishes with the final 
rule an explanation why that alternative was not adopted. Before EPA 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including Tribal governments, it 
must have developed under section 203 of the UMRA a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling

[[Page 31777]]

officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    This rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or Tribal 
governments or the private sector. The EPA prepared a statement for the 
final NOX SIP Call that would be required by UMRA if its 
statutory provisions applied. This action does not create any 
additional requirements beyond those of the final NOX SIP 
Call, and will actually reduce the requirements by excluding the State 
of Georgia, and therefore no further UMRA analysis is needed.

E. 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.''
    This proposed rule does not have federalism implications. It 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. This action does not impose an 
enforceable duty on these entities. This action imposes no additional 
burdens beyond those imposed by the final NOX SIP Call. 
Thus, Executive Order 13132 does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This proposed rule does not 
have Tribal implications, as specified in Executive Order 13175.
    It will not have substantial direct effects on Tribal governments, 
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 in Executive Order 
13175. This action does not significantly or uniquely affect the 
communities of Indian Tribal governments. The EPA stated in the final 
NOX SIP Call Rule that Executive Order 13084 did not apply 
because that final rule does not significantly or uniquely affect the 
communities of Indian Tribal governments or call on States to regulate 
NOX sources located on Tribal lands. The same is true of 
this action. Thus, Executive Order 13175 does not apply to this rule. 
EPA specifically solicits additional comment on this proposed rule from 
tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health 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 proposed rule is not subject to the Executive Order because it 
is not economically significant as defined in Executive Order 12866, 
and because the Agency does not have reason to believe the 
environmental health or safety risks addressed by this action present a 
disproportionate risk to children. This action does not impose 
requirements beyond those, if any, required by or resulting from the 
NOX SIP Call and Section 126 Rules.
    The public is invited to submit or identify peer-reviewed studies 
and data, of which the Agency may not be aware, that assessed results 
of early life exposure to NOX (or ground-level ozone, of 
which NOX is a precursor).

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

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. Further, we have 
concluded that this rule is not likely to have any adverse energy 
effects.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law No. 104-113, 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 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 proposed 
rulemaking does not involve technical standards, therefore, EPA is not 
considering the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or

[[Page 31778]]

the environment. For the final NOX SIP Call, the Agency 
conducted a general analysis of the potential changes in ozone and 
particulate matter levels that may be experienced by minority and low-
income populations as a result of the requirements of that rule. These 
findings were presented in the RIA for the NOX SIP Call. 
This action does not affect this analysis.

List of Subjects

40 CFR Part 51

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Ozone, Reporting 
and recordkeeping requirements.

40 CFR Part 78

    Acid rain, Air pollution control, Nitrogen oxides, Ozone, Reporting 
and recordkeeping requirements.

40 CFR Part 97

    Administrative practice and procedure, Air pollution control, 
Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and 
recordkeeping requirements.

    Dated: June 1, 2007.
William L. Wehrum,
Assistant Administrator for Air and Radiation.
    For the reasons set forth in the preamble, part 51 of chapter I of 
title 40 of the Code of Federal Regulations is proposed to be amended 
as follows:

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION AND SUBMITTAL OF 
IMPLEMENTATION PLANS

    1. The authority citation for Part 51 continues to read as follows:

    Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.

Subpart G--Control Strategy

    2. Section 51.121 is amended as follows:
    a. By revising paragraph (c)(2).
    b. By removing the entry for ``Georgia'' from the tables in 
paragraphs (e)(2)(i), (e)(4)(iii) and (g)(2)(ii).
    c. By removing and reserving paragraph (e)(2)(ii)(C).
    d. By removing paragraph (s).


Sec.  51.121  Findings and requirements for submission of State 
implementation plan revisions relating to emissions of oxides of 
nitrogen.

* * * * *
    (c) * * *
    (2) With respect to the 1-hour ozone NAAQS, the portions of 
Missouri, Michigan, and Alabama within the fine grid of the OTAG 
modeling domain. The fine grid is the area encompassed by a box with 
the following geographic coordinates: Southwest Corner, 92 degrees West 
longitude and 32 degrees North latitude; and Northeast Corner, 69.5 
degrees West longitude and 44 degrees North latitude.
* * * * *
[FR Doc. E7-11036 Filed 6-7-07; 8:45 am]
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