[Federal Register Volume 70, Number 113 (Tuesday, June 14, 2005)]
[Rules and Regulations]
[Pages 34358-34362]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11719]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[RO4-OAR-2005-GA-0002; RO4-OAR-2005-GA-0003; R04-OAR-2004-GA-0003-
200517; FRL-7924-2-]
Approval and Promulgation of Implementation Plans; Georgia,
Determination of Attainment for Atlanta 1-Hour Severe Ozone
Nonattainment Area and Severe Area Vehicle Miles Traveled
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is determining that the Atlanta area has attained the 1-
hour ozone National Ambient Air Quality Standard (NAAQS). This
determination is based on three years of complete, quality-assured
ambient air quality monitoring data for the 2002 through 2004 ozone
seasons. Based on this determination, EPA is also determining that
certain attainment demonstration and reasonable further progress
requirements, along with other related requirements of part D of title
I of the Clean Air Act (CAA or Act), are not applicable to the Atlanta
area for so long as the area continues to attain the 1-hour ozone
standard. The current Atlanta 1-hour severe ozone nonattainment area
consists of the following counties: Cherokee, Clayton, Cobb, Coweta,
DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Paulding
and Rockdale (Atlanta area).
Additionally, EPA is granting final approval to Georgia's Severe
Area Vehicle Miles Traveled (VMT) State Implementation Plan (SIP)
submittal.
DATES: Effective Date: This rule is effective June 14, 2005.
ADDRESSES: EPA has established a docket for this action under Regional
Material in EDocket (RME) ID No. RO4-OAR-2005--GA-0002; RO4-OAR-2005-
GA-0003; R04-OAR-2004-GA-0003. All documents in the docket are listed
in the RME index at http://docket.epa.gov/rmepub/. Once in the system,
select ``quick search,'' then key in the appropriate RME Docket
identification number. Although listed in the index, some information
is not publicly available, i.e., confidential business information
(CBI) 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
[[Page 34359]]
electronically in RME 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: Scott M. Martin, Regulatory
Development Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, Region 4, U.S. Environmental Protection Agency, 61
Forsyth Street, SW., Atlanta, Georgia, 30303-8960. The telephone number
is (404) 562-9036. Mr. Martin can also be reached via electronic mail
at [email protected].
SUPPLEMENTARY INFORMATION: The use of ``we,'' ``us,'' or ``our'' in
this document refers to EPA.
Table of Contents
I. What Is the Background for This Action?
II. What Actions Are We Taking and When Are They Effective?
III. What Comments Did We Receive and What Are Our Responses?
IV. Statutory and Executive Order Reviews
I. What Is the Background for This Action?
On June 30, 2004, the Georgia Environmental Protection Division
(EPD) submitted a SIP revision addressing the Severe Area VMT
requirement (section 182(d)(1)(A) of the Act) for the Atlanta 1-hour
ozone nonattainment area. Section 182(d)(1)(A) requires severe ozone
nonattainment areas to submit a SIP revision that identifies whether it
is necessary to adopt transportation control measures (TCMs) to offset
growth in emissions attributable to growth in VMT. On April 12, 2005,
(70 FR 19031), EPA published a proposed rule proposing to approve
Georgia's VMT SIP submittal because the State had demonstrated that
emissions increases from increases in VMT, or the numbers of vehicle
trips, within the Atlanta area did not rise above an established
ceiling by 2004, the year the area attained the 1-hour ozone NAAQS.
Please see the proposed rule for a detailed discussion of the VMT
submittal and of EPA's rationale for its proposed approval.
In addition, on February 1, 2005, EPD submitted a request to
redesignate the 1-hour ozone NAAQS nonattainment area of Atlanta,
Georgia, to attainment, and a request for EPA approval of a Georgia SIP
revision containing a 10-year maintenance plan for the 13-county
Atlanta area. The 10-year maintenance plan includes new motor vehicle
emissions budgets (MVEB) for the year 2015. Georgia EPD also requested
that EPA make a determination that certain SIP submittal requirements
related to attainment demonstrations, contingency measures, and
reasonable further progress are not applicable requirements because the
Atlanta area has attained the 1-hour ozone NAAQS based on ambient air
monitoring data for the 3-year period including the years 2002, 2003,
and 2004.
On April 20, 2005, (70 FR 20495), EPA published a proposed rule
proposing four actions: To find that the Atlanta area has attained the
1-hour ozone NAAQS; to find that certain attainment demonstration and
reasonable further progress requirements, along with other related
requirements of part D of title I of the CAA, are not applicable to the
Atlanta area for so long as it continues to attain the 1-hour ozone
standard; to approve the 10-year maintenance plan, including the 2015
MVEBs; and to approve the 1-hour ozone redesignation request for the
Atlanta area. Please see the proposed rule for a detailed discussion of
EPD's submittals and of EPA's rationale for its proposed actions.
II. What Actions Are We Taking and When Are They Effective?
Today, EPA is granting final approval of two of the four actions
proposed by EPA on April 20, 2005, (70 FR 20495), and granting final
approval of EPD's VMT submittal which was proposed by EPA on April 12,
2005, (70 FR 19031). First, EPA is determining that the Atlanta area
has attained the 1-hour ozone NAAQS based on air quality monitoring
data for the 2002 through 2004 ozone season. Based on this
determination, EPA is also determining that certain CAA SIP submittal
requirements related to attainment demonstrations and reasonable
further progress, along with other related requirements of part D of
title I of the CAA, are not currently applicable to the Atlanta area
because the area is attaining the 1-hour ozone standard. If an area has
in fact attained the 1-hour ozone standard, the stated purpose of CAA
SIP submissions relating to attainment demonstrations and reasonable
further progress (i.e. to ensure timely attainment of the 1-hour ozone
standard) has already been fulfilled and there is no need for an area
to make further submissions containing additional measures to achieve
attainment, so long as the area remains in attainment. See Memorandum
from John S. Seitz, Office of Air Quality Planning and Standards,
entitled, ``Reasonable Further Progress, Attainment Demonstration, and
Related Requirements for Ozone Nonattainment Areas Meeting the Ozone
National Ambient Air Quality Standard,'' dated May 10, 1995 (Seitz
Memorandum).
Second, EPA is granting final approval to Georgia's Severe Area VMT
SIP submittal which satisfies the requirements of section 182(d)(1)(A)
of the Act.
In this rulemaking, EPA is not taking action on its April 20, 2005,
proposed approval of the redesignation request and 10-year maintenance
plan for the Atlanta area. Final action on the redesignation request
and 10-year maintenance plan will be taken in a separate rulemaking.
A. Determination of Attainment and Nonapplicable Requirements
EPA interprets the CAA's general nonattainment provisions of
subpart 1 of part D of title I (sections 171 and 172) and the more
specific attainment demonstration and related provisions of subpart 2
(section 182), relating to SIP requirements for ozone nonattainment
areas to not require the submission of SIP revisions concerning
reasonable further progress (RFP), attainment demonstrations, or
contingency measures for areas where the monitoring data show that the
area is attaining the 1-hour ozone standard. See Sierra Club v. EPA, 99
F.3d 1551 (10th Cir. 1996). The rationale behind this interpretation is
discussed in the Seitz Memorandum.
EPA believes it is reasonable to interpret the provisions regarding
RFP and attainment demonstrations, along with other certain related
provisions, not to require SIP submissions if an ozone nonattainment
area subject to those requirements is monitoring attainment of the
ozone standard (i.e., attainment of the NAAQS demonstrated with three
consecutive years of complete, quality-assured, air quality monitoring
data). EPA believes this interpretation is reasonable because the
stated purpose of CAA provisions addressing or relating to RFP and
attainment demonstrations is to ensure attainment of the standard by
the applicable attainment date. If an area has in fact attained the
standard, the stated purpose of the requirement will have been
fulfilled and there will be no need for an area to make a further
submission containing additional measures to achieve attainment. EPA
has explained at length in other actions
[[Page 34360]]
its rationale for the reasonableness of this interpretation of the CAA
and incorporates those explanations by reference. See (68 FR 25418) (
St. Louis, MO., May 12, 2003); (68 FR 4847, 4848) (St. Louis, MO.,
January 30, 2003); (66 FR 27483, 27486) (Louisville, Kentucky, May 17,
2001); (67 FR 49600) (Cincinnati-Hamilton, Kentucky, July 31, 2002);
(66 FR 53095) (Pittsburgh-Beaver Valley, Pennsylvania, October 19,
2001); (65 FR 37879) (Cincinnati-Hamilton, Ohio and Kentucky, June 19,
2000); (61 FR 20458) (Cleveland-Akron-Lorain, Ohio, May 7, 1996); (60
FR 36723) (Salt Lake and Davis Counties, Utah, July 18, 1995); (60 FR
37366) (July 20, 1995); (61 FR 31832-31833) (June 21, 1996) (Grand
Rapids, MI). The United States Court of Appeals for the Tenth Circuit
has upheld EPA's interpretation. See Sierra Club v. EPA, 99 F.3d 1551
(10th Cir. 1996); see also Sierra Club v. EPA, 375 F.3d 537 (7th Cir.
2004) (rejecting a challenge to the interpretation).
EPA has reviewed the ambient air monitoring data for 1-hour ozone
(consistent with the requirements contained in 40 CFR part 58 and
recorded in EPA's Aerometric Information Retrieval System (AIRS)) for
the Atlanta ozone nonattainment area from the 2002 through 2004 ozone
seasons. On the basis of this review, EPA is making its final
determination that the area has attained the 1-hour ozone standard
during the 2002 through 2004 period and continues to attain the
standard. On the basis of this final determination of 1-hour ozone
attainment, the State of Georgia is not required to make the following
submittals for the Atlanta area: section 172(c)(2) reasonable further
progress requirements, section 172(c)(9) and section 182(c)(9)
contingency measures, sections 182(b)(1)(A) and 182(c)(2)(B) reasonable
further progress requirements, sections 172(c)(1), 182(c)(2)(A), and
section 182(j) attainment demonstration and reasonably available
control measures requirements, section 182(c)(5) demonstrations, and
section 182(g) milestones. See 70 FR 20500-20501 (April 20, 2005). The
Atlanta area does not need any other measures to attain the 1-hour
ozone standard, so long as the area continues to monitor attainment of
the 1-hour standard. When and if a violation occurs, the requirements
referenced above would need to be addressed.
The State of Georgia must continue to operate an appropriate
network, in accordance with 40 CFR part 58, to verify the attainment
status of the Atlanta area. The air quality data relied upon to
determine that the area is attaining the 1-hour ozone standard must be
consistent with 40 CFR part 58 requirements and other relevant EPA
guidance and recorded in EPA's AIRS.
B. Severe Area Vehicle Miles Traveled
On April 12, 2005, (70 FR 19031), EPA published a proposed rule
proposing to find that Georgia's Severe Area VMT SIP revision had
addressed the requirement of section 182(d)(1)(A) of the Act that
severe ozone nonattainment areas submit a SIP revision that identifies
whether it is necessary to adopt TCMs to offset growth in emissions
attributable to growth in VMT. EPA's longstanding policy is that the
purpose of the VMT SIP requirement is to prevent a growth in motor
vehicle emissions from canceling out the emissions reduction benefits
of the federally mandated programs of the CAA. See 60 FR 48,896, 48,897
(Sept. 21, 1995) (EPA final approval of Illinois' VMT SIP). EPA
interprets this provision to require that sufficient measures be
adopted so that projected motor vehicle volatile organic compound (VOC)
emissions will never be higher during the ozone season in one year than
during the ozone season in the year before. When growth in VMT and
vehicle trips would otherwise cause a motor vehicle emissions upturn,
this upturn must be prevented. The emissions level at the point of
upturn becomes a ceiling on motor vehicle emissions. This requirement
applies to projected emissions in the years between the submission of
the SIP revision and the attainment deadline, and is above and beyond
the separate requirements for the RFP and the attainment
demonstrations. The ceiling line is defined, therefore, up to the point
of upturn, as motor vehicle emissions that would occur in the ozone
season of that year, with VMT growth, if all measures for that area in
that year were implemented as required by the CAA. When this curve
begins to turn up due to growth in VMT or vehicle trips, the ceiling
becomes a fixed value. The ceiling line would include the effects of
federal measures such as new motor vehicle standards, phase II reid
vapor pressure (RVP) controls, and reformulated gasoline, as well as
the CAA-mandated SIP requirements.
For each year from 1999 to 2004, typical summer day highway mobile
source emissions inventories were estimated for the Atlanta 13-county
1-hour ozone nonattainment area. These inventories, which reflect the
most recent planning assumptions available and include all federal and
State mobile source control rules, demonstrate that motor vehicle
emissions of both VOC and nitrogen oxide (NOX) decreased
each year, for a six-year period, through the 2004 attainment year for
the Atlanta severe 1-hour ozone nonattainment area. Therefore, pursuant
to the Act and EPA policy, the adoption of additional TCMs is not
required for Atlanta to demonstrate attainment of the 1-hour NAAQS
standard for ozone or to satisfy the requirements of section
182(d)(1)(A). EPA is granting final approval to Georgia's Severe Area
VMT SIP revision in this action.
C. Effective Date of This Action
EPA finds that there is good cause for the determination of
attainment and the determination of non-applicability of certain CAA
SIP submittal requirements to become effective June 14, 2005, because a
delayed effective date is unnecessary due to the nature of the
determinations, which relieve the Atlanta area from certain CAA
requirements that would otherwise apply to it for so long as the area
remains in attainment of the 1-hour ozone standard. The expedited
effective date for these actions is authorized under both 5 U.S.C.
553(d)(1), which provides that rulemaking actions may become effective
less than 30 days after publication if the rule ``grants or recognizes
an exemption or relieves a restriction'' and section 553(d)(3), which
allows an effective date less than 30 days after publication ``as
otherwise provided by the agency for good cause found and published
with the rule.''
As indicated above, EPA's September 26, 2003, final rule
reclassified the Atlanta area to a ``severe'' nonattainment area and
established a schedule for submission of SIP revisions fulfilling the
requirements for severe ozone nonattainment areas. Upon the effective
date of this rule, the State of Georgia will be relieved of the
obligation to develop and submit several of these SIP revisions, which
are specifically identified above, for so long as the area remains in
attainment of the 1-hour ozone standard. The relief from these
obligations is sufficient reason to allow an expedited effective date
of this rule under 5 U.S.C. 553(d)(1). In addition, Georgia's relief
from these SIP submittal obligations provides good cause to make this
rule effective June 14, 2005, pursuant to 5 U.S.C. 553(d)(3). The
purpose of the 30-day waiting period prescribed in 5 U.S.C. 553(d) is
to give affected parties a reasonable time to adjust their behavior and
prepare before the final rule takes effect. Where, as here, the final
rule relieves obligations rather than imposes obligations, affected
parties such as the
[[Page 34361]]
State of Georgia do not need time to adjust and prepare before the rule
takes effect.
For these same reasons, EPA also finds that there is good cause for
the final approval of Georgia's Severe Area VMT SIP to become effective
June 14, 2005. The final approval relieves Georgia from adopting
additional TCMs to offset growth in emissions attributable to growth in
VMT. This relief is sufficient reason to allow an expedited effective
date of this rulemaking under 5 U.S.C. 553(d)(1) and 553(d)(3).
III. What Comments Did We Receive and What Are Our Responses?
Severe Area Vehicles Miles Traveled
On April 12, 2005, (70 FR 19031), EPA published a proposed approval
of Georgia's submittal regarding severe area VMT for the Atlanta 1-hour
severe ozone nonattainment area. The comment period ended on May 12,
2005. EPA received no adverse comment.
Proposed Redesignation of the Atlanta 1-Hour Severe Nonattainment Area
to Attainment for Ozone
On April 20, 2005, (70 FR 20495), EPA published a proposed rule
proposing four actions: To find that the Atlanta area has attained the
1-hour ozone NAAQS; to find that certain attainment demonstration and
reasonable further progress requirements, along with other related
requirements of part D of title I of the CAA, are not applicable to the
Atlanta area for so long as it continues to attain the 1-hour ozone
standard; to approve the 10-year maintenance plan; and to approve the
1-hour ozone redesignation request for the Atlanta area. The comment
period ended on May 20, 2005. One comment, discussed below, was
received regarding the maintenance plan portion of EPA's April 20,
2005, proposed rule. The comment, however, contained a footnote
addressing emissions increases and a monitoring violation of the 1-hour
ozone standard. While EPA does not believe that the footnote was
directly submitted as a comment on the attainment determination, we are
providing the following clarification on this footnote in this
rulemaking.
The Renewable Fuels Association submitted comments with respect to
the showing of maintenance which will be addressed by EPA in a separate
rulemaking action on the redesignation request and maintenance plan.
The comments included a footnote (footnote 3) asserting that ``Georgia
submitted data related to only 11 monitors in ten of the thirteen
counties. In 2002, however, there was a twelfth monitor located within
the 13-county area--Waleska in Cherokee County * * * The monitoring
data show that the ozone levels at this monitor were steadily
increasing from 2000 to 2002, resulting in a violation in 2002.''
In response, EPA notes that there was a special purpose monitor
(SPM) in Cherokee County, Georgia, (Waleska site) that operated from
1999-2002.\1\ This monitor recorded only one exceedance of the 1-hour
ozone standard during this period that occurred in 2002. This one
exceedance does not constitute a violation of the 1-hour ozone
standard.\2\ The monitor at the Waleska site was terminated by the
State due to siting issues (potential interference by trees and a
school's chemistry laboratory). The Waleska site was designated a SPM,
and for this type of monitor the states are not required to obtain EPA
concurrence for its termination.
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\1\ A special purpose monitor is a generic term used for all
monitors other than State and Local Air Monitoring Stations (SLAMS),
National Air Monitoring Stations (NAMS), Photochemical Assessment
Monitoring Stations (PAMS), and Prevention of Significant
Deterioration (PSD) monitors included in an agency's monitoring
network for monitors used in a special study whose data area
officially reported to EPA.
\2\ A violation of this standard occurs when the daily maximum
1-hour average concentration measured by a continuous ambient air
monitor exceeds 0.12 parts per million more than once per year,
averaged over three consecutive years.
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Georgia's request for redesignation and a determination of
attainment did include data from all ozone monitors in the Atlanta area
with complete data for the period of 2002-2004, showing no violations
of the 1-hour ozone standard. Thus, there were no recorded violations
of the 1-hour ozone standard omitted from Georgia's redesignation
request as implied by the commentator.
IV. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the CAA.
This rule also is not subject to Executive Order 13045 ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. In this
context, in the absence of a prior existing requirement for the State
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the CAA. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272) do not apply. This rule does not impose an information
collection burden under the provisions of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. 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
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agency promulgating the rule must submit a rule report, which includes
a copy of the rule, to each House of the Congress and to the
Comptroller General of the United States. EPA will submit a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives, and the Comptroller General of the
United States prior to June 14, 2005. 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).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by August 15, 2005. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Dated: June 7, 2005.
J.I. Palmer, Jr.,
Regional Administrator, Region 4.
0
Part 52 of chapter I, title 40, Code of Federal Regulations, is amended
as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Section 52.570(e) is amended by adding a new entry in numerical
order for ``20. Severe Area Vehicle Miles Traveled (VMT SIP) for the
Atlanta 1-hour severe ozone nonattainment area.'' to read as follows:
Sec. 52.570 Identification of Plan.
* * * * *
(e) EPA Approved Georgia Nonregulatory Provisions.
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State
Name of nonregulatory SIP provision Applicable geographic or submittal date/ EPA approval date
nonattainment area effective date
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* * * * * * *
20. Severe Area Vehicle Miles Traveled Atlanta 1-hour ozone severe June 30, 2004 June 14, 2005. [Insert
(VMT SIP) for the Atlanta 1-hour nonattainment area. first page number of
severe ozone nonattainment area. publication].
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[FR Doc. 05-11719 Filed 6-13-05; 8:45 am]
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