[Federal Register Volume 73, Number 45 (Thursday, March 6, 2008)]
[Rules and Regulations]
[Pages 12013-12017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-4349]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R04-OAR-2007-0958-200802; FRL-8539-2]


Determination of Nonattainment and Reclassification of the 
Atlanta, GA 8-hour Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This rule finalizes EPA's finding that the Atlanta, Georgia 
marginal 8-hour ozone nonattainment area (Atlanta Area) has failed to 
attain the 8-hour ozone national ambient air quality standard 
(``NAAQS'' or ``standard'') by June 15, 2007, the attainment deadline 
set forth in the Clean Air Act (CAA) and Code of Federal Regulations 
(CFR) for marginal nonattainment areas. As a result of this finding, 
the Atlanta Area will be reclassified from a marginal to a moderate 8-
hour ozone nonattainment area by operation of law, on the effective 
date of this rule. The effect of this reclassification will be to 
change the classification of the Atlanta Area, and to require continued 
progress towards attainment of the 8-hour ozone NAAQS through 
development of a revision to the Georgia State Implementation Plan 
(SIP) addressing the CAA's pollution control requirements for moderate 
ozone nonattainment areas. The SIP revision is due as expeditiously as 
practicable, but no later than December 31, 2008. The moderate area 
attainment date for the Atlanta Area is as expeditiously as 
practicable, but no later than June 15, 2010. This determination was 
proposed on October 16, 2007, and no comments were received.

DATES: Effective Date: This rule will be effective April 7, 2008.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2007-0958. All documents in the docket 
are listed on the www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, i.e., Confidential 
Business Information or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy at the Regulatory Development Section, Air Planning Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 
30303-8960. EPA requests that if at all possible, you contact the 
person listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 8:30 to 4:30, excluding federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Stacy Harder, Air Planning Branch, 
Air, Pesticides and Toxics Management Division, U.S. EPA Region 4, 61 
Forsyth Street, SW., Atlanta, Georgia 30303-8960. Phone: (404) 562-
9042. E-mail: [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What is the Background for This Action?
II. What is the Effect of This Action?
III. What is the New Attainment Date for the Atlanta Area and When 
Must Georgia Submit a SIP Revision Fulfilling the Requirements for 
Moderate Ozone Nonattainment Areas?
IV. Final Action
V. Statutory and Executive Order Reviews

I. What Is the Background for This Action?

    The CAA requires EPA to establish a NAAQS for pollutants that ``may 
reasonably be anticipated to endanger public health and welfare'' and 
to develop a primary and secondary standard for each NAAQS. The primary

[[Page 12014]]

standard is designed to protect human health with an adequate margin of 
safety and the secondary standard is designed to protect public welfare 
and the environment. EPA has set NAAQS for six common air pollutants 
referred to as criteria pollutants: Carbon monoxide, lead, nitrogen 
dioxide, ozone, particulate matter, and sulfur dioxide. On July 18, 
1997, EPA promulgated a revised 8-hour ozone standard of 0.08 ppm. 
Under EPA regulations at 40 CFR part 50, the 8-hour ozone standard is 
attained when the 3-year average of the annual fourth highest daily 
maximum 8-hour average ambient air quality ozone concentration is less 
than or equal to 0.08 ppm (i.e., 0.084 ppm when rounding is 
considered). (See, 69 FR 23857 (April 30, 2004) FOR FURTHER INFORMATION 
CONTACT.)
    The Atlanta Area is located in Northern Georgia and consists of 
Barrow, Barton, Carroll, Cherokee, Clayton, Cobb, Coweta, DeKalb, 
Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Newton, Paulding, 
Pickens, Rockdale, Spaulding, and Walton Counties. The Atlanta Area was 
initially designated for the 8-hour ozone standard on April 30, 2004, 
and classified as ``marginal'' nonattainment. For areas subject to 
title I, Part D, Subpart 2 of the CAA, such as the Atlanta Area, the 
maximum period for attainment runs from the effective date of 
designations for the 8-hour ozone NAAQS. This attainment period must 
also be the same period as provided in Table 1 of section 181(a) of the 
CAA: Marginal--3 years; Moderate--6 years; Serious--9 years, Severe--15 
or 17 years; and Extreme--20 years.
    On October 16, 2007, EPA published a rulemaking proposing its 
determination that the Atlanta Area did not attain the 8-hour ozone 
NAAQS by June 15, 2007, the applicable attainment date for marginal 
nonattainment areas, and proposing a SIP submission schedule. See, 72 
FR 58572. The proposed finding was based on ambient air quality data 
from years 2004, 2005 and 2006. In the October 16, 2007, proposal, EPA 
explained that, consistent with Section 181(b)(2) of the CAA, when EPA 
finalizes its determination that the Atlanta Area failed to attain, and 
that requirement becomes effective, the Atlanta Area would be 
reclassified by operation of law to the next highest classification, or 
``moderate'' nonattainment. See the discussion of the appropriate 
reclassification of the area in the proposal at 72 FR 58572, 58574. EPA 
further proposed that the State submit the SIP revisions meeting the 
new moderate area requirements as expeditiously as practicable, but no 
later than December 31, 2008. For further background, see EPA's October 
16, 2007, proposal. EPA provided an opportunity for public comment on 
its October 16, 2007, proposal, but received no comments.

II. What Is the Effect of This Action?

    This action finalizes EPA's October 16, 2007, proposed finding that 
the Atlanta Area failed to attain the 8-hour ozone standard by June 15, 
2007, as prescribed by the CAA for marginal ozone nonattainment areas. 
The basis of this final action is the 2004-2006 air quality data 
demonstrating that the Atlanta Area did not attain the standard by the 
attainment date. Under the CAA, the effect of a final finding that an 
area has not attained the 8-hour ozone standard by the attainment date 
is that the area is reclassified by operation of law to a higher 
classification. For further information on reclassifications in general 
and specific information regarding the Atlanta Area reclassification, 
see, EPA's proposal at 72 FR 58572. As a result of EPA's determination, 
the Atlanta Area will be reclassified by operation of law to moderate 
nonattainment pursuant to section 181(b)(2) of the CAA on the effective 
date of this action. In addition, this action sets the dates by which 
Georgia must submit revisions to the Georgia SIP addressing the CAA's 
pollution control requirements for moderate ozone nonattainment areas 
and attainment of the 8-hour ozone standard.

III. What Is the New Attainment Date for the Atlanta Area and When Must 
Georgia Submit a SIP Revision Fulfilling the Requirements for Moderate 
Ozone Nonattainment Areas?

    When an area is reclassified, a new attainment date for the 
reclassified area must be established. Section 181 of the CAA states 
that the attainment date for moderate nonattainment areas shall be as 
expeditiously as practicable, but not later than six years after 
designation, or June 15, 2010, in the case of the Atlanta Area. The 
``as expeditiously as practicable'' attainment date will be determined 
as part of the action on the required SIP submittal demonstrating 
attainment of the 8-hour ozone standard.
    When an area is reclassified, EPA has the authority under section 
182(i) of the CAA to adjust the CAA's submittal deadlines for any new 
SIP revisions that are required as a result of the reclassification. 
Pursuant to 40 CFR 51.908(d), for each nonattainment area, the state 
must provide for implementation of all control measures needed for 
attainment no later than the beginning of the attainment year ozone 
season. The attainment year ozone season is the ozone season 
immediately preceding a nonattainment area's attainment date, in this 
case, 2009 (40 CFR 51.900(g)). The ozone season is the ozone monitoring 
season as defined in 40 CFR part 58, Appendix D, section 4.1, Table D-3 
(October 17, 2006, 71 FR 61236). For the purposes of this 
reclassification of the Atlanta Area, March 1, 2009, is the beginning 
of the ozone monitoring season. As a result and in light of discussions 
with Georgia, EPA determines that the required SIP revision be 
submitted as expeditiously as practicable, but no later than December 
31, 2008. This timeline also calls for implementation of applicable 
controls no later than the beginning of the ozone monitoring season. 
The SIP revision must include the requirements for moderate areas. See, 
EPA's proposal at 72 FR 58572, 58575.

IV. Final Action

    Pursuant to CAA section 181(b)(2), EPA is now finalizing its 
determination that the Atlanta Area failed to attain the 8-hour ozone 
standard by June 15, 2007, the CAA's attainment date for marginal ozone 
nonattainment areas. As a result, the Atlanta Area will be reclassified 
by operation of law as a moderate nonattainment area on the effective 
date of this rulemaking. The submittal of Georgia's moderate 
nonattainment SIP revision will be due as expeditiously as practicable, 
but no later than December 31, 2008. The requirements for this SIP 
submittal are described in section 182 of the CAA and applicable EPA 
guidance. See, EPA's October 16, 2007, proposal, for further 
information regarding this action.

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 12866 (58 FR 51735, October 4, 1993), and is 
therefore not subject to review under the Executive Order.
    The Agency has determined that the finding of nonattainment would 
result in none of the effects identified in 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.

[[Page 12015]]

B. Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
This final rule reclassifying the Atlanta Area as a moderate ozone 
nonattainment area and adjusting applicable deadlines does not 
establish any new information collection burden. 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 Office of Management and Budget (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

    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 
Procedure Act or any other statute unless the agency certifies 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 action on small 
entities, small entity is defined as: (1) A small business that is a 
small industrial entity as defined in the U.S. Small Business 
Administration (SBA) size standards, see, 13 CFR part 121; (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. 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. After 
considering the economic impacts of this action on small entities, I 
certify that this final rule will not have a significant economic 
impact on a substantial number of small entities.

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 proposed and final rules with ``Federal mandates'' that 
may result in expenditures to state, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA 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 to 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 
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 final rule does not include a Federal mandate within the 
meaning of UMRA that may result in expenditures of $100 million or more 
in any one year by either state, local, or Tribal governments in the 
aggregate or to the private sector, and therefore, is not subject to 
the requirements of sections 202 and 205 of the UMRA. Also, EPA has 
determined that this rule contains no regulatory requirements that 
might significantly or uniquely affect small governments and therefore, 
is not subject to the requirements of section 203. EPA believes that 
the finding of nonattainment is a factual determination based upon air 
quality considerations and that the resulting reclassification of the 
Atlanta Area must occur by operation of law. Thus, EPA believes that 
this 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.

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 final 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 rule merely determines that 
the Atlanta Area has not attained the 8-hour ozone standard by its 
applicable attainment date, and reclassifies the Atlanta Area as a 
moderate ozone nonattainment area and adjusts applicable deadlines. 
Thus, Executive Order 13132 does not apply to this final rule.

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 action does not have 
``Tribal implications'' as specified in Executive Order 13175. This 
action

[[Page 12016]]

merely determines that the Atlanta Area has not attained the 8-hour 
ozone standard by its applicable attainment date, and reclassifies the 
Atlanta area as a moderate ozone nonattainment area and adjusts 
applicable deadlines. The CAA and the Tribal Authority Rule establish 
the relationship of the Federal government and Tribes in developing 
plans to attain the NAAQS, and this rule does nothing to modify that 
relationship. Thus, Executive Order 13175 does not apply to this final 
rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045: ``Protection of Children From Environmental 
Health 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 
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 
rule is not subject to Executive Order 13045 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 risks or safety risks addressed by this rule present a 
disproportionate risk to children. This action merely determines that 
the Atlanta Area has not attained the 8-hour ozone standard by its 
applicable attainment date, and reclassifies the Atlanta area as a 
moderate ozone nonattainment area and adjusts applicable deadlines.

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

    This action is not subject to Executive Order 13211, ``Actions That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer 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 (VCS) 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 VCS bodies. The NTTAA directs EPA to provide Congress, 
through OMB, explanations when the Agency decides not to use available 
and applicable VCS. This final rule merely determines that the Atlanta 
Area has not attained the 8-hour ozone standard by its applicable 
attainment date, and reclassifies the Atlanta Area as a moderate ozone 
nonattainment area and adjusts applicable deadlines. Therefore, EPA did 
not consider the use of any voluntary consensus standards.

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 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 CAA, petitions for judicial review 
of this final action must be filed in the United States Court of 
Appeals for the appropriate circuit by May 5, 2008. Filing a petition 
for reconsideration by the Administrator of this final rule does not 
affect the finality of this rule for the purposes of judicial review 
nor does it extend the time within which a petition for judicial review 
may be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See, section 307(b)(2) of the CAA.)

List of Subjects in 40 CFR Part 81

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

    Dated: February 22, 2008.
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.

Subpart C--Section 107 Attainment Status Designation

0
2. In Sec.  81.311, the table entitled ``Georgia-Ozone (8-Hour 
Standard)'' is amended by revising the entry for ``Atlanta, GA'' to 
read as follows:


Sec.  81.311  Georgia.

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                                         Georgia-Ozone (8-Hour Standard)
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                                             Designation \a\                     Category/classification
         Designated area          ------------------------------------------------------------------------------
                                      Date \1\             Type               Date \1\               Type
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Atlanta, GA:
    Barrow County................  ..............  Nonattainment......  April 7, 2008......  Subpart 2/Moderate.
    Bartow County................  ..............  Nonattainment......  April 7, 2008......  Subpart 2/Moderate.
    Carroll County...............  ..............  Nonattainment......  April 7, 2008......  Subpart 2/Moderate.
    Cherokee County..............  ..............  Nonattainment......  April 7, 2008......  Subpart 2/Moderate.
    Clayton County...............  ..............  Nonattainment......  April 7, 2008......  Subpart 2/Moderate.
    Cobb County..................  ..............  Nonattainment......  April 7, 2008......  Subpart 2/Moderate.
    Coweta County................  ..............  Nonattainment......  April 7, 2008......  Subpart 2/Moderate.
    DeKalb County................  ..............  Nonattainment......  April 7, 2008......  Subpart 2/Moderate.
    Douglas County...............  ..............  Nonattainment......  April 7, 2008......  Subpart 2/Moderate.
    Fayette County...............  ..............  Nonattainment......  April 7, 2008......  Subpart 2/Moderate.

[[Page 12017]]

 
    Forsyth County...............  ..............  Nonattainment......  April 7, 2008......  Subpart 2/Moderate.
    Fulton County................  ..............  Nonattainment......  April 7, 2008......  Subpart 2/Moderate.
    Gwinnett County..............  ..............  Nonattainment......  April 7, 2008......  Subpart 2/Moderate.
    Hall County..................  ..............  Nonattainment......  April 7, 2008......  Subpart 2/Moderate.
    Henry County.................  ..............  Nonattainment......  April 7, 2008......  Subpart 2/Moderate.
    Newton County................  ..............  Nonattainment......  April 7, 2008......  Subpart 2/Moderate.
    Paulding County..............  ..............  Nonattainment......  April 7, 2008......  Subpart 2/Moderate.
    Rockdale County..............  ..............  Nonattainment......  April 7, 2008......  Subpart 2/Moderate.
    Spalding County..............  ..............  Nonattainment......  April 7, 2008......  Subpart 2/Moderate.
    Walton County................  ..............  Nonattainment......  April 7, 2008......  Subpart 2/Moderate.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.

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[FR Doc. E8-4349 Filed 3-5-08; 8:45 am]
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