[Federal Register Volume 73, Number 78 (Tuesday, April 22, 2008)]
[Rules and Regulations]
[Pages 21528-21538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8673]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[EPA-HQ-OAR-2004-0439, FRL-8556-2]
RIN 2060-AN12


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this action, EPA is amending a final rule it issued under 
Section 110 of the Clean Air Act (CAA) related to the 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 (Georgia) to submit revisions to its State Implementation Plan 
(SIP) to include provisions 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

[[Page 21529]]

or Petitioners) filed a Petition for Reconsideration requesting that 
EPA reconsider the applicability of the NOX SIP Call Rule to 
Georgia.
    In response to this Petition, and based upon review of additional 
available information, EPA proposed to remove Georgia from the 
NOX SIP Call Rule. (June 8, 2007). Specifically, EPA 
proposed to rescind the applicability of the requirements of the Phase 
II NOX SIP Call Rule to Georgia, only. Six parties commented 
on the proposed rule. No requests were made to hold a public hearing. 
After considering these comments, EPA is issuing a final rule as 
proposed.

DATES: This final rule is effective on May 22, 2008.

ADDRESSES: The EPA has established a docket for this action, identified 
by Docket ID No. EPA-HQ-OAR-2005-0439. All documents in the docket are 
listed in the http://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 http://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. 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 removes the applicability of certain requirements 
related to NOX emissions in 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. 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. How Is This Preamble Organized?
II. Background
    A. Background on NOX SIP Call Rule, Subsequent 
Litigation and Rulemaking Related to Georgia
    B. GCSEP Requests Related to Phase II NOX SIP Call 
Rule
III. Proposed Response to GCSEP's Petition for Reconsideration
    A. Proposed Action
    B. Rationale for Proposed Action
    C. Final Action
IV. Response to Comments on Proposal
    A. Legal Rationale
    B. Emissions Cap
    C. Comparison With the Atlanta State Implementation Plan
    D. Other Issues
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
    K. Congressional Review Act
    L. Judicial Review

II. Background

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

    On October 27, 1998, EPA took final action to prohibit specified 
amounts of emissions of oxides of 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 23 States were emitting 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. We explained 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 also explained 
that ``nonattainment [area] 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.
    Further, we assessed each upwind State's contribution to 1-hour 
standard downwind nonattainment independent of the State's contribution 
to 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 as 
required for the 1-hour standard (63 FR

[[Page 21530]]

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 Georgia, we determined that sources and emitting 
activities in Georgia were significantly contributing to 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 of promulgation of the NOX SIP Call rule. In 
addition, the modeling done at that time showed that the Memphis and 
Birmingham areas were modeled to have nonattainment air quality for the 
1-hr standard in the year 2007. Thus, at that time Memphis, Tennessee 
and Birmingham, Alabama were ``nonattainment'' 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 the eastern part of the state of 
Missouri (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 
the geographic area for photochemical modeling known as the ``fine 
grid,'' and thus, that the record for the rulemaking supported only 
including those portions of the two States.\5\
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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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    Subsequently, in response to the Court decision in Michigan, we 
proposed (in what is known as the ``Phase II NOX SIP Call 
rule''), the inclusion of only the fine grid parts 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 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).

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 the notice and comment 
period on our February 22, 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).'' CAA Section 307(d)(7)(B). In 
addition, GCSEP further asserted that its objection was ``of central 
relevance to the outcome of the rule.'' CAA Section 307(d)(7)(B).
    Request for Stay of Effectiveness. GCSEP also requested an 
administrative stay of the effectiveness of the Phase II NOX 
SIP Call Rule as it relates to 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. On March 1, 
2005, EPA proposed to stay the effectiveness of the Phase II 
NOX SIP Call Rule, as requested by GCSEP, as to Georgia 
only. (70 FR 9897, (March 1, 2005)). Four parties commented on the 
proposed rule, raising issues related to the merits of the stay, and 
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 merits of the 
Petition in a subsequent rulemaking that would address the Petition.
    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.

III. Proposed Response to GCSEP's Petition For Reconsideration

A. Proposed Action

    In a June 8, 2007, rulemaking notice, EPA initiated the process to 
respond to the Petition. In that notice, we proposed to remove only 
Georgia from inclusion in the Phase II NOX SIP call rule. In 
the proposal, EPA specifically noted that we were not reopening any 
other portions of the NOX SIP Call and Phase II 
NOX SIP Call rules for public comment and reconsideration. 
72 FR 31774 (June 8, 2007).
    In the Petition, GCSEP had argued that Georgia did not meet EPA's 
stated

[[Page 21531]]

rationale for the NOX SIP call rule 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) but that 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 Rule.
    At proposal, we explained that in the 1998 NOX SIP Call 
Rule, we articulated a test for defining a given downwind ``receptor'' 
location as ``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 when SIP Call controls would be in place.
    As earlier explained, with regard to Georgia, EPA had determined 
that sources and emitting activity in that 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\ While 
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, the earlier 
referenced modeling results indicated 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 both of these areas as 1-hour ozone 
attainment areas and both currently have monitored air quality data 
that does not violate the 1-hour ozone standard. 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 at promulgation of the Phase II 
NOX SIP Call Rule, both Memphis, Tennessee and Birmingham, 
Alabama are now in attainment of the 1-hour ozone standard. Thus, both 
areas 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.

B. Final Action

    At promulgation of the Phase II NOX SIP Call Rule, both 
Memphis, Tennessee and Birmingham, Alabama were in attainment of the 1-
hour ozone standard. In light of the fact that both downwind receptor 
areas are no longer ``nonattainment'' areas, for purposes of the 
significant contribution analysis, we are withdrawing our findings of 
significant contribution for Georgia for the 1-hr ozone standard, as 
proposed. This in effect means that Georgia is no longer required to 
submit a revised SIP that prohibits certain amounts of NOX 
emissions under the Phase II NOX SIP Call Rule.

IV. Response to Comments on the Proposed Rule

    Six commenters submitted comments on the June 8, 2007 proposal. The 
comments are summarized below along with EPA's responses. In this 
section, we are also responding to those comments on the merits of this 
Petition that we received at proposal of the stay of the effectiveness 
of the NOX SIP Call rule in Georgia and had indicated would 
be better addressed in the context of this rulemaking. 70 FR 51591, 
51594 (August 31, 2005).

A. Legal Rationale

    Comment: Several commenters agreed with EPA's proposed rationale 
for removing Georgia from the NOX SIP Call rule. These 
commenters agreed with EPA that Georgia no longer met EPA's criteria 
for ``significant contribution'' when Birmingham was redesignated as 
attainment area.
    Response: EPA agrees with these commenters.
    Comment: One commenter stated that given the NOX 
emissions reduction requirements that are already in place in Georgia, 
implementing the NOX SIP Call rule would not result in 
further NOX emissions reductions, particularly from 
electricity generating units (EGUs). This commenter asserted that 
requiring Georgia to implement the NOX SIP Call requirements 
without regard to those reductions already achieved and required in the 
future, would be ``arbitrary, capricious and not in accordance with the 
law.''
    Response: As earlier stated, in the June 8, 2007, proposal we 
explained that our inclusion of Georgia in the Phase II NOX 
SIP Call rule was based on our definition of ``nonattainment'' and 
determination of ``significant contribution to downwind nonattainment'' 
as articulated in the 1998 NOX SIP Call rule. 72 FR 31773. 
Based on this definition and determination, we had found that emissions 
activities from northern Georgia contributed significantly to 
nonattainment of the one-hour ozone standard in both Memphis, Tennessee 
and Birmingham, Alabama. 72 FR 31774. We also explained at proposal 
that both Memphis, Tennessee and Birmingham, Alabama were designated as 
attainment areas at the time of the Phase II NOX SIP Call 
Rule. 72 FR 31774. Consequently, this rulemaking reflects our belief 
that emissions activities in Georgia did not meet the 1998 
NOX SIP Call rule definition and determination at the time 
of the Phase II NOX SIP Call Rule and thus, that emissions 
from northern Georgia could no longer be identified as ``contributing 
significantly'' to downwind nonattainment problems. Thus, although the 
commenter suggests we consider achieved and future reductions, our 
basis for this action does not rely on other emissions controls in 
Georgia.
    Comment: One commenter disagreed with both EPA's proposed removal 
of Georgia, and stated rationale for the removal. This commenter noted 
that Michigan, 213 F.3d 663, did not question the inclusion of the 
northern Georgia or the ``fine grid'' portion of the NOX SIP 
Call photochemical modeling in the NOX SIP Call rule. This 
commenter believed that because the inclusion of the fine grid portion 
of Georgia was never in question, EPA cannot legally question that now. 
This commenter also asserted that the grounds presented by GCSEP are 
not of ``central relevance to the outcome of the rule'' because the 
inclusion of the ``fine

[[Page 21532]]

grid'' portion of Georgia was not at issue and therefore, that 
reconsideration of Georgia's inclusion in the NOX SIP Call 
rule is not appropriate. The commenter asserted that the only 
``relevant'' issues were the line between the fine grid and coarse grid 
and the calculation of emissions budgets, neither of which were 
addressed by the Petition. One commenter disagreed with another 
commenter's assertion that EPA cannot revisit the original findings as 
it related to Georgia. This commenter believed that the issue of 
whether the Court questioned any conclusions on ``significant 
contribution'' is irrelevant in this context because the facts and 
issues presented in this rulemaking were not before the Court in 
Michigan.
    Response: Our position on the continued inclusion of Georgia in the 
NOX SIP Call rule is not inconsistent with the Michigan 
holding, inter alia, that ``[b]efore assessing `significance,' EPA must 
find (1) emissions activity within a state; (2) show with modeling or 
other evidence that such emissions are migrating into other states; and 
(3) show that the emissions are contributing to nonattainment.'' 
Michigan, 213 F.3d at 680 (emphasis added). Further, we note that the 
petitioners had maintained that there was record support for inclusion 
of emissions from only the eastern half of Missouri and the northern 
two thirds of Georgia as contributing to downwind ozone problems. We 
also note the holding that ``the fine grid portion[] of [Georgia was] 
closest to * * * [the Birmingham] nonattainment area[ ].''Michigan, 213 
F.3d at 682. Thus, this action reflects our belief that with the 
redesignation of the Birmingham, Alabama nonattainment area, we can no 
longer conclude that emissions activities in Georgia are ``contributing 
to [the Birmingham] nonattainment [area].''
    We do agree, however, that Michigan did not question either the 
``proposition that the fine grid portion of each State should be 
considered to make a significant contribution downwind,'' or OTAG's 
modeling analysis, but again we note the applicable holding that the 
``critical issue is whether the targeted `source' or `emissions 
activity' `contribute[s] significantly to nonattainment' in another 
state.'' Michigan, 213 F.3d at 682 (alteration in original). Again, we 
believe that the redesignation of Birmingham, Alabama and Memphis, 
Tennessee raises the question as to ``whether the targeted `source' or 
`emissions activity' `contribute[s] significantly to nonattainment' in 
another state,'' at the time of the Phase II NOX SIP Call 
rule. And we believe we no longer have record support showing that 
Georgia `contribute[s] significantly to nonattainment' in another 
state'' that would warrant our continued inclusion of Georgia in the 
NOX SIP Call rule.
    We also note that the issue at hand in this rulemaking was not 
presented in Michigan and thus, was not decided in Michigan. That is, 
the Court did not rule on whether EPA could continue to subject a State 
to the NOX SIP Call requirements if, at the time of the 
rulemaking for inclusion of that State, emissions activity from sources 
in that State were no longer significantly contributing to 
nonattainment in downwind areas. And even if we concede and agree with 
both comments that Michigan does not require us to revisit the 
inclusion of the ``fine grid portion'' in the NOX SIP Call 
rule, and that GCSEP's petition raises issues beyond the scope of the 
Phase II NOX SIP Call rulemaking, we believe we must be 
cognizant of the fact that Memphis, Tennessee and Birmingham, Alabama 
are no longer downwind nonattainment receptors as contemplated by the 
NOX SIP Call rule, and take action accordingly. EPA must 
have a rational basis for including any area within the scope of the 
NOX SIP Call and EPA concludes that it would not be rational 
to apply the SIP Call to an area that does not contribute to any 
downwind receptor.
    We also disagree with the comment that petitioners did not meet the 
grounds for reconsideration as provided in CAA section 307(d)(7)(B). 
Much confusion exists as to whether this rulemaking is under CAA 
section 307(d)(7)(B). Although GCSEP invoked CAA section 307(d)(7)(B) 
as authority for its Petition, earlier we had informed them, by letter 
dated October 22, 2004, that our response would be under the authority 
of the Administrative Proceedings Act (APA), because CAA section 
307(d)(7)(B) was clearly inapplicable. (A copy of this letter is in the 
docket for this rulemaking.) Thus, this rulemaking is being taken under 
Section 553(e) of the APA, which ``give[s] an interested person the 
right to petition for the * * * amendment, or repeal of a rule.'' 5 
U.S.C. Sec.  553(e). See also our earlier response to a comment 
regarding our authority to stay the effectiveness of the NOX 
SIP Call with respect to Georgia pending a final reconsideration 
rulemaking. 70 FR 51592-93 (August 31, 2005).
    Comment: One commenter noted that subsequent to the Phase II 
NOX SIP Call rule, EPA has revoked the one-hour ozone 
standard and asserted that the NOX SIP Call requirements are 
obsolete for Georgia as a result of the revocation. This commenter 
believed that Georgia cannot significantly contribute to nonattainment, 
nor interfere with maintenance, of a standard that no longer exists. 
The commenter asserted that we cannot justify this rule because of our 
authority to regulate activity that interferes with maintenance of the 
one-hour standard.
    Response: As stated earlier, in this action, we are finalizing our 
removal of Georgia from the NOX SIP Call rule in light of 
our redesignation of downwind receptors that emissions activities in 
Georgia were determined to be significantly contributing to. We note, 
however, that the NOX SIP Call rule continues to apply in 
other areas subsequent to the revocation of the 1-hour ozone standard 
for purposes of anti-backsliding during transition to implementation of 
the 8-hour standard, 40 CFR 51.905(f) (2005), and is therefore not 
``obsolete.'' Further, with regard to our authority to regulate 
emissions activity that interferes with the 1-hour ozone standard 
maintenance, under section 110(a)(2)(D)(i)(I), we had also determined, 
in the 1998 NOX SIP Call rule, that this requirement was 
inapplicable to the extent the 1-hour standard would no longer apply to 
an area subsequent to our attainment determination. ``Under these 
circumstances, emissions from an upwind area cannot interfere with 
maintenance of the 1-hour NAAQS.'' 63 FR 57379.
    Comment: One commenter, citing EPA's response to comments on the 
continued inclusion of Missouri in the Phase II NOX SIP Call 
rulemaking, argued that EPA has always taken a ``once-in-always-in'' 
approach to the NOX SIP Call. The commenter asserted that 
the proposed rule is contrary to EPA's previous ``once-in-always-in'' 
approach. The commenter noted that the facts giving rise to GCSEP's 
petition occurred only at the end of a lengthy, delayed rulemaking for 
the Phase II NOX SIP Call rule. This commenter also believed 
that the proposed rule, which took into account updated information, 
was inconsistent with our previous statements relating to the continued 
inclusion of Missouri in the NOX SIP Call rule. The 
commenter also cited our specific response to comments on this issue 
that,

    (1) ``We disagree that a new emissions inventory is necessary 
that takes into account Missouri's statewide NOX rule and 
other post-1998 CAA rules. Because SIPs are constantly changing, it 
is impractical to revise emissions inventories and modeling analyses 
each time changes are made,'' and (2) ``* * * completing the 
NOX SIP Call rule in Missouri is an equitable approach. 
It

[[Page 21533]]

would be inequitable to use 2003 air quality analysis for Missouri 
but to hold other NOX SIP Call States to the 1998 
analysis.'' (69 FR 21626).

    The commenter also noted our statement at the time that ``an agency 
should not revisit an otherwise sound rulemaking just due to the 
passage of time leading to changed circumstances, because circumstances 
always change.'' Response to Comments: Phase II NOX SIP Call 
Rule p. 47.
    One commenter disagreed with another commenter's assertion that the 
proposed rule violated the ``once-in-always-in'' approach, because (1) 
the NOX SIP Call rule had yet to be implemented in Georgia 
and (2) that NOX emissions reductions have already been made 
by the State of Georgia under other State regulatory authorities.
    Response: EPA does not agree that this rule is inconsistent with an 
``once-in-always-in'' approach. The issue at hand is not whether 
Georgia (or parts of Georgia) should continue to be ``in,'' but whether 
as an initial matter Georgia (or parts of Georgia) should be ``in'' the 
Phase II NOX SIP Call rule at all. As earlier explained, 
States are subject to the NOX SIP Call requirements if they 
meet the 1998 NOX SIP Call rule test for significant 
contribution to ``nonattainment'' receptors. (63 FR 57373; 57375-85). 
States that meet this test continue to be subject to the NOX 
SIP Call requirements even with the revocation of the 1-hour ozone 
standard. 40 CFR 51.905(f) (2005). Because both Birmingham, Alabama and 
Memphis, Tennessee were meeting the 1-hour ozone standard and had been 
redesignated as attainment areas at the time of the Phase II 
NOX SIP Call Rule, we no longer believe that the fine grid 
portion of Georgia met the test for significant contribution to 
``nonattainment'' receptors at the time of promulgation of the Phase II 
rule.
    We are also not persuaded by commenter's citation of our responses 
to comments in the Phase II NOX SIP Call rule regarding our 
rejection of 2003 air quality data that would take into account current 
(at the time) emissions reductions by Missouri and our continued 
reliance on emissions data from the NOX SIP Call in 
subjecting Missouri to the NOX SIP Call requirements. (See 
69 FR 21262). We do not believe that our response on this issue is 
analogous primarily because the Chicago, Illinois nonattainment area 
that eastern Missouri was significantly contributing to was still in 
nonattainment at the time of promulgation of the Phase II 
NOX SIP Call rule. Thus, eastern Missouri continued to meet 
the 1998 NOX SIP Call rule test for significant contribution 
to downwind ``nonattainment.'' Again this would not be the case with 
respect to Georgia in this instance because both Birmingham, Alabama 
and Memphis, Tennessee had been designated as attaining the 1-hour 
ozone standard prior to promulgation of the Phase II rule.
    Further we disagree with the assertion that this rulemaking amounts 
to revisiting the question of whether sources in northern Georgia are 
linked to downwind nonattainment contrary to our stated position that 
``we should not revisit an otherwise sound rulemaking just due to the 
passage of time.'' Rather as earlier stated we believe that their clean 
air quality and our redesignation of Birmingham, Alabama, and Memphis, 
Tennessee nonattainment calls into question the validity of our 
existing determination that Georgia ``significantly contributes to 
downwind nonattainment'' as construed in the NOX SIP Call 
Rule. 63 FR 57376. Our decision also comports with our earlier 
statement that we intended to review the NOX SIP Call rule 
to make necessary adjustments. 63 FR 57428. Further, as earlier stated, 
even if we concede and agree with both comments that Michigan does not 
require us to revisit the inclusion of Georgia's fine-grid portion and 
that GCSEP's petition raises issues beyond the scope of the Phase II 
NOX SIP Call rulemaking, we believe we must be cognizant of 
the fact that Memphis, Tennessee and Birmingham, Alabama were no longer 
downwind nonattainment receptors as contemplated by the NOX 
SIP Call at the time of the Phase II Rule. Both areas achieved the 1-
hour ozone standard without the implementation of the NOX 
SIP Call Rule in Georgia and thus, we see no reason for Georgia's 
continued inclusion in the NOX SIP Call. Rather, we believe 
that our continued subjection of the State of Georgia to the 
NOX SIP Call requirements could likely be viewed as 
arbitrary and capricious and not in accordance with the law in light of 
the facts pertinent to the two downwind receptors at the time of 
promulgation of the Phase II NOX SIP Call rule.
    Comment: One commenter asserted that our proposal was an attempt at 
resurrecting the pre-1990 version of CAA Section 110(a)(2)(D)(i). The 
commenter noted that prior to the 1990 amendments, this section 
required the elimination of emissions that ``prevent attainment or 
maintenance'' of the NAAQS by another State, while under the 1990 
amendments this section now prohibits emissions that ``contribute 
significantly to nonattainment'' in another State. The commenter 
asserted that under the proposed rule, EPA seems to be applying the 
pre-1990 provision by concluding that if the downwind State had 
attained, without the assistance of one particular group of upwind 
sources, then those sources must not be part of the problem.
    Response: We disagree. Under CAA Section 110(a)(2)(D)(i)(I), SIPs 
must contain provisions prohibiting amounts of emissions ``which will 
contribute significantly to nonattainment'' of an air quality standard 
in a downwind state. In the NOX SIP Call Rule we interpreted 
the term ``contribute significantly'' by explaining that:

    The determination of significant contribution includes both air 
quality factors relating to amounts of upwind emissions and their 
ambient impact downwind, as well as cost factors relating to the 
costs of the upwind emissions reductions. Once an amount of 
emissions is identified in an upwind State that contributes 
significantly to a nonattainment problem downwind * * * the SIP must 
include provisions to eliminate that amount of emissions. 63 FR 
57376 (October 27, 1998).

    We also set out the multi-factor test we applied in determining 
whether emissions from an upwind state ``contribute[s] significantly'' 
to downwind nonattainment. These factors included:

    [T]he overall nature of the ozone problem (i.e., collective 
contribution'); The extent of the downwind nonattainment problems to 
which the upwind State's emissions are linked, including the ambient 
impact of controls required under the CAA or otherwise implemented 
in the downwind areas; [and] [t]he ambient impact of the emissions 
from the upwind State's sources on the downwind nonattainment 
problems. Id.

    In the June 8, 2007, proposal, we explained that our inclusion of 
Georgia in the NOX SIP Call was based on a finding that emissions from 
northern Georgia contributed significantly to nonattainment of the one-
hour ozone standard by both Memphis, Tennessee and Birmingham, Alabama. 
72 FR 31774. We also explained that both Memphis, Tennessee and 
Birmingham, Alabama were designated as attainment areas at the time of 
the Phase II NOX SIP Call Rule. 72 FR 31774. Consequently, today's 
rulemaking reflects our belief that emissions activities in Georgia no 
longer meet both our determination of ``significant contribution'' and 
the multi-factor test, which we made at promulgation of the 
NOX SIP Call Rule under the current section 
110(a)(2)(D)(i)(I), and thus, that emissions from northern Georgia can 
no longer be identified as ``contributing

[[Page 21534]]

significantly'' to downwind nonattainment problems. Thus, Georgia would 
not need NOX SIP Call provisions to prevent any such contribution.

B. Emissions Cap Comment

    One commenter believed that our non-inclusion of Georgia in the NOX 
SIP Call Rule would result in EGUs located in Georgia not being subject 
to an emissions cap during ozone seasons, and that the lack of a cap 
for sources that would otherwise be subject to the NOX SIP Call rule 
may impede the ability of downwind states to maintain attainment of the 
1-hour ozone NAAQS. Another commenter noted that EGUs are subject to 
annual caps under the Clean Air Interstate rule (CAIR), and that 
Georgia rules require that any add-on controls for CAIR compliance 
purposes should be operational during the ozone season.
    Response: This action is based on the fact that the attainment of 
the 1-hour ozone standard and redesignation of Birmingham, Alabama and 
Memphis, Tennessee raises the question as to ``whether the targeted 
`source' or `emissions activity' `contribute[s] significantly to 
nonattainment' in another state.'' It is also based on our conclusion 
that emitting activities in Georgia no longer `` `contribute[s] 
significantly to nonattainment' in another state.'' Although not a 
basis for our action, EPA notes, after reviewing the current Georgia 
regulations, that by adopting stringent requirements for EGU NOX 
emissions in the SIP Georgia has effectively capped EGUs emissions at 
levels that are more stringent than would be achieved by implementing 
the NOX SIP Call requirements.
    With regard to the comment that the absence of a cap for sources in 
Georgia may impede the ability of downwind maintenance of the 1-hour 
ozone standard, see our earlier response, in Section III.A above, on 
our authority to regulate emissions activity that interfere with the 
maintenance of the 1-hour ozone standard.

C. Comparison With the Atlanta State Implementation Plan

    We also received comments on our analysis and conclusion at 
proposal that NOX emissions controls under current and anticipated 
Atlanta SIP requirements would ensure equivalent or better levels of 
NOX emissions than would be achieved under the NOX SIP Call. 72 FR 
31775-76. Comments addressed the degree of reductions from the Atlanta 
SIP in comparison to the emissions reductions assumed in the NOX SIP 
Call budgets for: EGUs, non-EGU boilers, cement kilns and IC engines, 
as well as emissions from other categories not included within the NOX 
SIP Call.
    Comment: One commenter believed that EGUs requirements in the 
Atlanta SIP were less stringent than the levels assumed in the NOX SIP 
Call budgets. This commenter noted that the NOX SIP Call Rule was based 
on an average level of 0.15 pounds NOX per million BTU for EGUs, while 
the 1999 Atlanta SIP was based on a level of an average of 0.20 pounds 
NOX per million BTU. Moreover, the commenter noted that our 
calculations did not take into consideration Georgia's 60 counties that 
would have been subject to the Phase II NOX SIP Call rule that are not 
all addressed by the Atlanta SIP.
    Other commenters believed that the emissions reductions for EGUs 
that would be achieved by the 1999 and subsequent Atlanta SIP 
requirements exceeded the requirements of the NOX SIP Call rule. One 
commenter noted that emissions by 27 of the 28 EGUs that would be 
covered by the NOX SIP Call rule are limited by the 1999 Atlanta SIP 
requirements, and that only 4 percent of the total EGUs NOX emissions 
for the 2006 ozone season are emitted by the sole EGU that is not 
covered by those requirements. The commenter did agree that the 27 
units covered under the 1999 Atlanta SIP were subject to an overall 
average limit of 0.20 pounds per million BTU. The commenter further 
stated that 19 of the 27 EGUs were required to meet 0.13 pounds per 
million BTU during the ozone season beginning May 1, 2003, or one year 
earlier than the NOX SIP Call requirements, which were effective with 
the 2004 ozone season.
    Several commenters noted that, based on a review of our 
calculations, the overall actual NOX emissions for the 2003-2006 time 
period, and taking into account early reduction allowances that EGUs 
subject to 0.13 pounds per million BTU limits would have earned, 
Georgia would not only have complied with the NOX SIP Call for this 
time period, but could have maintained 4027 tons of banked excess 
allowances as of the end of the 2006 ozone season. This estimate was 
based on (1) calculations by Georgia, under the NOX SIP Call trading 
program at 40 CFR part 96, showing that EGUs allocations would have 
been 29,416 tons per year in addition to the compliance supplement pool 
(CSP) allowance of 10,728 tons in 2004, or in sum, 98,976 tons from 
2004 through 2006 ozone seasons; (2) actual EGUs NOX emissions of 
24,966, 35,272, and 34,711 tons, respectively, for the 2004 through 
2006 ozone seasons. (The commenter attributed these numbers to the 
Agency's Clean Air Market Division's Web site.) This would result in a 
total of 94,949 tons for the 2004-2006 ozone seasons; and (3) a 
comparison of the NOX SIP Call allocations of 98,976 tons with the 
94,949 tons of actual emissions to determine that actual emissions were 
4,027 tons less than would have been allocated under the NOX SIP Call 
trading program. The commenters noted that, were Georgia in the NOX SIP 
Call rule, Georgia could have sold these allowances, and that this 
would have likely resulted in NOX emissions increases from sources in 
other States.
    One commenter also noted that the Atlanta SIP requires both limits 
that are to be met on a 30 day rolling average, which is more 
restrictive than the seasonal budgets identified in the NOX SIP Call 
trading program, and a stringent cap on EGUs emissions because the 
limits cannot be complied with by purchasing allowances.
    Response: As earlier stated, in the June 8, 2007, proposal we 
explained that our inclusion of the State of Georgia in the NOX SIP 
Call was based on our definition of ``nonattainment'' and determination 
of ``significant contribution to downwind nonattainment'' as 
articulated in the 1998 NOX SIP Call rule. 72 FR 31773. Based on this 
definition and determination we found that emissions activities from 
northern Georgia contributed significantly to nonattainment of the one-
hour ozone standard in both Memphis, Tennessee and Birmingham, Alabama. 
72 FR 31774. We also explained that both Memphis, Tennessee and 
Birmingham, Alabama were designated as attainment areas at the time of 
the Phase II NOX SIP Call Rule. 72 FR 31774. Consequently, this 
rulemaking reflects our belief that emissions activities in Georgia did 
not meet the 1998 NOX SIP Call rule definition and determination at the 
time of the Phase II NOX SIP Call Rule and thus, that emissions from 
northern Georgia can no longer be identified as ``contributing 
significantly'' to downwind nonattainment problems.
    Nonetheless, we note that the compliance date for Phase II NOX SIP 
Call Rule was May 31, 2007, instead of May 31, 2004, assumed by the 
above calculations. We also note that these calculations strongly 
support our conclusion that existing requirements under the Atlanta SIP 
result in NOX emissions reductions which are more stringent than the 
NOX SIP call.
    Comment: One commenter believed that the appropriate basis for 
comparison between the Atlanta SIP and the NOX SIP Call budgets should 
not be 2004, but rather 2007 and

[[Page 21535]]

subsequent years. Because the NOX SIP Call is based upon achieving the 
2007 NOX SIP Call budget, the better analysis would be to assess 
whether sources in northern Georgia are modeled to achieve the 2007 NOX 
SIP Call budget. The commenter stated that we had not made this 
showing. The commenter also stated that our documentation in the 
proposal did not clearly address future reductions from EGUs and other 
sources. (72 FR 31776). The commenter asserted that our predicted EGUs 
reductions based upon the Integrated Planning Model (IPM) are also 
indeterminate.
    Other commenters supported EPA's view that existing and future 
Atlanta SIP requirements would result in a future trend towards 
decreasing EGU NOX emissions. One commenter noted that in February 2007 
(effective May 1, 2007), EGUs requirements, under the Atlanta SIP, 
became more stringent because the applicable average limits changed 
from 0.20 to 0.18 lbs/MMBTU. Additionally, the Georgia 
``multipollutant'' rule would require the installation of 12 additional 
selective catalytic reduction (SCR) units between 2008 and 2015. The 
commenter also noted that Georgia Power has submitted an application to 
retire two coal-fired units in the Atlanta area and replace them with 
lower-emitting natural gas combined-cycle units.
    Response: As explained earlier, we are determining that Georgia no 
longer meets the ``significant contribution'' test articulated in the 
1998 NOX SIP Call rule because both Memphis and Birmingham were in 
attainment at the time of the Phase II NOX SIP Call rule. Nevertheless, 
after reviewing the available information, EPA finds ample evidence to 
note that beginning with the 2007 ozone season, NOX emissions in 
northern Georgia will be less than assumed by the NOX SIP Call budgets. 
Because, as noted in comments, Georgia NOX requirements for the SIP are 
becoming more stringent over time, emissions for 2007 and subsequent 
years would likely result in even more favorable comparisons for the 
Georgia SIP requirements relative to the NOX SIP Call rule. This 
assessment is not based on what the commenter terms as 
``indeterminate'' predictions of the IPM model, but rather on the 
enforceable requirements of the Atlanta SIP.
    Comment: Two commenters also noted that, under the Atlanta SIP, NOX 
emissions reductions for IC engines and cement kilns are significantly 
beyond the NOX SIP Call rule reductions. The commenters stated that 
these additional reductions were achieved as a result of the Georgia 
RACT rules for fuel burning equipment, stationary turbines, stationary 
engines, large gas turbines, and small fuel burning equipment. One 
commenter noted that non-EGUs boilers (i.e., greater than 250 Million 
BTU/hour) might have become small-scale net purchasers of allowances 
under the Phase II NOX SIP Call rule due to the absence of controls at 
the levels assumed in setting the NOX SIP Call budgets. Nonetheless, 
the commenter believed that the additional reductions from other 
sources would more than offset those purchases, and would not affect 
the finding that Georgia would have been a net exporter of NOX 
emissions allowances under the Phase II NOX SIP Call rule.
    One commenter expressed concerns that reductions from other (non-
EGUs) sources were not well documented in the proposal, and that they 
may be at least already partially included in the calculations for the 
comparison of reductions between the Atlanta SIP and Phase II NOX SIP 
Call rule.
    Response: As explained earlier, we are determining that Georgia no 
longer meets the ``significant contribution'' test articulated in the 
1998 NOX SIP Call Rule because both Memphis and Birmingham 
attained the 1-hour ozone standard and were redesignated at the time we 
promulgated the Phase II NOX SIP Call rule. Nonetheless, EPA 
notes that documentation provided by commenters for the non-EGUs 
measures in the Georgia SIP would appear to support the assertion that 
Georgia would have been a likely net exporter of allowances under the 
NOX SIP call rule.

D. Other Issues

    Comment: One commenter opposed EPA's proposed rule, and recommended 
that not only should Georgia be included in the NOX SIP Call 
rule, but should also be responsible for NOX emissions 
reductions under the rule. The commenter noted that NOX 
emissions are contributors to smog, and that Atlanta suffers from urban 
sprawl with no incentive to keep growth within city limits.
    Response: EPA agrees with the commenter that NOX is an 
important contributor to air pollution in Georgia, and that Georgia may 
need further NOX reductions in order to meet applicable 
ozone standards. This rule, however, reflects a determination that at 
the time of promulgation of the Phase II NOX SIP Call rule, 
emissions activities from sources in Georgia were no longer 
significantly contributing to downwind nonattainment in other States. 
Thus, it is not appropriate for EPA to impose NOX reductions 
requirements in Georgia under the SIP Call.
    Comment: One commenter believed that the proposed action encourages 
parties to hinder rulemakings in hopes that new circumstances will 
provide a technical basis for a reprieve.
    Response: EPA disagrees. We believe we are acting appropriately 
based on the facts at the time of the Phase II NOX SIP Call 
rulemaking. Moreover, any delay in finalizing the Phase II 
NOX SIP Call Rule did not contribute to adverse air quality 
in Birmingham and Memphis because these areas were able to attain the 
1-hour standard in the intervening period. EPA also notes that during 
this intervening period, the Agency had to juggle competing rulemaking 
demands on our limited scientific and legal staff.
    Comment: Two commenters expressed the concern that including 
Georgia in the NOX SIP call would impose resource 
expenditures without significant NOX emissions reductions. 
One commenter cited concerns over resource expenditures for (1) non-
EGUs compliance with 40 CFR part 75 monitoring, (2) EGUs recordkeeping 
in addition to acid rain and CAIR, (3) Georgia SIP obligations, and (4) 
EPA tracking of ozone season allocations. The other commenter expressed 
concerns that imposition of the NOX SIP Call would require 
Georgia to conduct a lengthy and expensive rulemaking process and would 
divert limited state resources from other efforts such as eight-hour 
ozone SIPs, PM2.5 SIPs, and regional haze SIPs.
    Response: EPA generally agrees that these resource considerations 
support the proposed rule.
    Comment: One commenter noted that numerous modeling studies have 
assumed full implementation of the NOX SIP Call in all 
affected States including Georgia. Thus, the commenter argues, if 
Georgia does not implement the SIP Call, all of these modeling analyses 
would be incorrect.
    Response: The commenter appears to assume, without providing any 
support, that not including Georgia in the NOX SIP Call Rule 
would result in future emissions being greater than those used as 
inputs to previous modeling studies, and that those increased emissions 
would lead to increases in modeled estimates of ozone concentrations. 
This assumption is incorrect. As noted in the preamble to the proposed 
rule (72 FR 31775-31776) and as discussed above, EPA has determined 
that future NOX emissions from Georgia, because of Atlanta 
SIP requirements, would most likely be less than the emissions that 
were projected to occur from implementation of the NOX SIP 
Call rule by Georgia. In other words, the emission levels required by 
the Georgia SIP are

[[Page 21536]]

lower than those that would have occurred from implementation of the 
NOX SIP Call in Georgia. Thus, any assumption regarding 
Georgia's participation in the NOX SIP Call would likely not 
have affected estimates of Georgia emissions in various modeling 
analyses. For these reasons, we can conclude that the removal of 
Georgia from the NOX SIP Call would not be expected to 
impact modeling inputs or results of the modeling studies.
    Comment: One commenter noted that the commenter's problem with 
EPA's proposed rule was compounded by exclusion of Georgia from the 
seasonal CAIR program. The commenter further stated that Georgia is the 
only state out of 22 states east of the Mississippi subject to CAIR 
that is not otherwise subject to the CAIR summertime NOX 
program.
    Response: We disagree. Georgia is subject to both annual emissions 
budgets for NOX under CAIR, and stringent requirements under 
the 1999 and subsequent Atlanta SIP requirements. In addition, as noted 
by commenters, Georgia SIP rules require that controls installed for 
purposes of meeting annual CAIR requirements must be operated during 
the ozone season. In sum, we believe that all these requirements will 
assure substantial reductions in summertime NOX emissions in 
Georgia. See also 72 FR 31775-56.
    Comment: One commenter noted that EPA did find in its original 
analysis for the NOX SIP Call rule that the NOX 
emissions in Georgia significantly contributed to 8-hour ozone 
nonattainment areas in 10 downwind States, including Alabama. The 
commenter was also cognizant of the stay of the findings of the 
NOX SIP Call rule as it relates to the 8-hour ozone 
standard. Thus this commenter recommended that Georgia should not be 
removed from the Phase II NOX SIP Call rule.
    Another commenter expressed concerns that Georgia sources do not 
have summertime NOX emissions caps despite significant 
contributions to 8-hour ozone levels.
    Response: This comment and any other comments on the 8-hour basis 
of the NOX SIP Call rule are beyond the scope of the 
proposed rule. The stay of effectiveness of the 8-hour basis for the 
NOX SIP Call continues, and the proposed rule neither 
addressed nor reopened any issues relating to the 8-hour basis for the 
NOX SIP Call rule. 72 FR 31774.
    EPA notes, however, that as stated above, Georgia is subject to 
annual emissions budgets for NOX under CAIR, that controls 
installed for purposes of meeting annual CAIR requirements must be 
operated during the ozone season in Georgia, and that the Georgia SIP 
requirements designed to achieve emission reductions aimed at 
addressing 8-hour ozone nonattainment in Atlanta will assure that 
stringent levels of NOX emissions will be met. As noted 
earlier above, these levels are more stringent than required by the 
NOX SIP Call budgets.
    Comment: One commenter noted that certain controls in Georgia were 
installed a year earlier than similar requirements in North Carolina, 
and the average pounds/million BTU emissions rate is lower in Georgia 
than in North Carolina or Alabama.
    Response: This comment is beyond the scope of the proposed rule.

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 grants a 
petition for reconsideration and removes the State of Georgia from the 
NOX SIP Call Rule. It does not impose any requirement on 
regulated entities.

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 removes 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 final 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 final 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 grants a petition for reconsideration and removes the 
State of Georgia from the NOX SIP Call Rule and therefore, 
is not expected to have a significant economic impact on a substantial 
number of small entities. This action neither imposes requirements on 
small entities, nor is it expected that there will be impacts on small 
entities beyond those, if any, required by or resulting from the 
NOX SIP Call and the Section 126 Rules.

[[Page 21537]]

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 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 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.

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 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.

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 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.

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

[[Page 21538]]

not to use available and applicable voluntary consensus standards. This 
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 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 the environment. For the final 
NOX SIP Call rule, 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.

K. 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. The EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective May 22, 2008.

L. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the District of Columbia Circuit by June 23, 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 
must 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 CAA Section 307(b)(2).

List of Subjects in 40 CFR Part 51

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

    Dated: April 16, 2008.
Stephen L. Johnson,
Administrator.

0
For the reasons set forth in the preamble, part 51 of chapter I of 
title 40 of the Code of Federal Regulations is amended as follows:

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

0
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

0
2. Section 51.121 is amended as follows:
0
a. By revising paragraph (c)(2).
0
b. By removing the entry for ``Georgia'' from the tables in paragraphs 
(e)(2)(i), (e)(4)(iii) and (g)(2)(ii).
0
c. By removing and reserving paragraph (e)(2)(ii)(C).
0
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. E8-8673 Filed 4-21-08; 8:45 am]
BILLING CODE 6560-50-P