[Federal Register Volume 69, Number 137 (Monday, July 19, 2004)]
[Rules and Regulations]
[Pages 42880-42884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16203]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R04-OAR-2004-GA-0001-200420; FRL-7788-3]
Approval and Promulgation of Implementation Plans Georgia:
Approval of Revisions to the State Implementation Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is finalizing the approval of a revision to the
Georgia State Implementation Plan (SIP) submitted by the Georgia
Environmental
[[Page 42881]]
Protection Division (GAEPD) on December 24, 2003. The revision pertains
to the Post-1999 Rate-of-Progress Plan (Post-1999 ROP Plan). This
submittal was made to meet the reasonable further progress requirements
of section 182 of the Clean Air Act, as amended in 1990 (CAA). The SIP
revision also establishes a motor vehicle emissions budget (MVEB) for
transportation conformity purposes. EPA is approving Georgia's Post-
1999 ROP plan, including the 2004 MVEB adequacy determination and
addressing comments submitted in response to EPA's proposed rule/
notification of adequacy process published/posted previously for this
action.
DATES: This rule will be effective August 18, 2004.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. R04-OAR-2004-GA-0001. All documents in the docket are listed in the
index. Although listed in the index, some information is not publicly
available, i.e., CBI or other information whose disclosure is
restricted by statute. Publicly available docket materials are
available in hard copy at: 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. The Regional Office's official hours of
business are Monday through Friday, 9 to 3:30, excluding Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Mr. Scott M. Martin, 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. The telephone number
is (404) 562-9036. Mr. Martin can also be reached via electronic mail
at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Today's Action
III. Response to Comments
IV. Final Action
V. Statutory and Executive Order Reviews
I. Background
Section 182 of the CAA requires ozone nonattainment areas with air
quality classified as ``moderate'' or worse to submit plans showing
reasonable further progress towards attainment of the national ambient
air quality standards (NAAQS). Because Atlanta was classified as a
``serious'' nonattainment area for ozone, the CAA required Georgia to
develop a SIP to reduce emissions of VOCs in the 13-county Atlanta 1-
hour ozone nonattainment area by 15 percent from 1990 to 1996. The most
recent revision to Georgia's 15% ROP SIP (i.e., the 15% Plan) was
submitted by the GAEPD on June 17, 1996, and was approved by the EPA
effective May 26, 1999, (64 FR 20186).
The CAA also requires Post-1996 emission reductions of VOCs and/or
NOX totaling 3 percent per year, averaged over each
consecutive three-year period beginning in 1996 and continuing through
the attainment date. Georgia chose to rely solely on NOX
emission reductions in its Post-1996 ROP SIP (i.e., the 9% Plan). This
plan was required to describe how Georgia would achieve reasonable
further progress towards attaining the ozone NAAQS between 1996 and
1999, the attainment deadline for serious nonattainment areas. The most
recent revision to Georgia's 9% Plan was submitted June 17, 1996, and
was approved by EPA effective April 19, 1999, (64 FR 13348).
On July 17, 2001, GAEPD submitted the Atlanta 1-hour ozone
attainment SIP to EPA which included a demonstration that Atlanta would
attain the 1-hour ozone NAAQS by November 15, 2004. That attainment
demonstration, including the extension of the attainment date, was
approved by the EPA in a notice published in the Federal Register on
May 7, 2002, (67 FR 30574), which cited EPA's policy to grant
attainment date extensions for areas dependent upon upwind states'
emission reductions mandated by the regional NOX SIP Call as
a basis for approval. On June 25, 2002, a challenge to EPA's approval
of the attainment demonstration was filed in the 11th Circuit Court of
Appeals. Subsequently, in challenges to other attainment date
extensions, several federal appeals courts ruled that EPA lacked the
authority to grant such attainment date extensions. On February 20,
2003, EPA filed a motion for voluntary vacatur of Atlanta's attainment
date extension and approval of Atlanta's ozone attainment
demonstration. On June 16, 2003, the United States Court of Appeals for
the Eleventh Circuit issued an order granting EPA's motion, thereby
vacating approval of the July 17, 2001, attainment demonstration.
In response to these court rulings, EPA issued a final rulemaking
action in the September 26, 2003, Federal Register (68 FR 55469). It
included a determination that the Atlanta area had failed to attain the
1-hour ozone standard by the statutory deadline of November 1, 1999,
and that by operation of law, the Atlanta area was being reclassified
to a ``severe'' ozone nonattainment area effective January 1, 2004.
Under section 181(a)(1) of the CAA, the attainment deadline for Atlanta
as a new ``severe'' nonattainment area is ``as expeditiously as
practicable,'' but not later than November 15, 2005.
GAEPD has recently conducted an Early Attainment Assessment to
review the progress made to date in implementing the July 17, 2001,
ozone attainment SIP. The Early Attainment Assessment indicates that
the emission reductions achieved to date from the 1-hour ozone
attainment SIP control measures have been effective in reducing
monitored levels of ozone and that the area appears to be on track to
attain by the end of the 2004 ozone season.
EPA's September 26, 2003, action requires submission of a severe
area Post-1999 ROP SIP. The severe area Post-1999 ROP SIP must describe
how at least a 3 percent per year reduction in emissions of ozone
precursors (VOCs or NOX) will be achieved, from the time of
failure to meet the ``serious'' area attainment date (November 15,
1999) until the ``severe'' area attainment date.
This Atlanta severe area Post-1999 ROP SIP contains a description
of how the 3 percent per year reductions in ozone precursor emissions,
required over the period from November 15, 1999, through November 15,
2004, will be achieved. It also contains MVEBs for the Atlanta 1-hour
ozone nonattainment area. Submission only through 2004 is based on the
State's Early Attainment Assessment discussed above.
On January 6, 2004, EPA provided the public with an opportunity to
review and comment on the adequacy of new VOC and NOX MVEBs
for the year 2004 for purposes of determining transportation
conformity. The adequacy comment period ended on February 5, 2004. On
May 6, 2004, (69 FR 25348) EPA published a notice of proposed
rulemaking (NPR) proposing to approve the Post-1999 ROP Plan. The May
6, 2004, NPR provides a detailed description of each of these matters
and the rationale for each of EPA's proposed actions, together with a
discussion of the opportunity to comment on the adequacy of the 2004
MVEB. The public comment period for the NPR ended on June 7, 2004. EPA
received adverse comments during both these comment periods.
II. Today's Action
In this final rulemaking, EPA is responding to comments made on
EPA's proposed rulemaking published May 6,
[[Page 42882]]
2004 (69 FR 25348) and during the adequacy comment period which ran
from January 6, 2004, through February 5, 2004. EPA is approving the
Georgia Post-1999 Rate-of-Progress Plan and providing notice that it
has determined the 2004 VOC and NOX MVEBs to be adequate
under the requirements of 40 CFR 93.118(e)(4). Additionally, through
this action, EPA is approving the 2004 MVEBs.
On December 24, 2003, Georgia submitted a revision to its SIP
pertaining to the Post-1999 ROP Plan. Today, EPA is addressing comments
received on the May 6, 2004, NPR and approving the Post-1999 ROP Plan.
Additionally, through this rulemaking, EPA is providing notice that it
has determined that the 2004 MVEBs for VOC and NOX, as
discussed above, meet the substantive criteria for ``adequacy'' as set
out in 40 CFR 93.118(e)(4), and are adequate for purposes of
transportation conformity.
EPA's adequacy determination for the 2004 MVEBs is also being
announced on EPA's conformity Web site: BM--1-- http:// www.epa.gov/otaq/transp.htm, (once there, click on the ``Transportation
Conformity'' text icon, then look for ``Adequacy Review of State
Implementation Plan (SIP) Submissions for Conformity''). The new budget
for VOCs is 160.68 tons per day (tpd) and 318.24 tpd of NOX.
III. Response to Comments
1. The Rate of Progress State Implementation Plan Fails To Demonstrate
Adequate Reductions of NOX in the Nonattainment Area
Comment: The commentor states that the proposed ROP SIP is flawed
because the EPD takes credit for reductions at five coal fired electric
power plants located outside the 13 county ozone nonattainment area in
order to demonstrate the required three percent per year reduction in
emissions and that these reductions are inconsistent with CAA
requirements.
Response: EPA refers the commentor to a December 23, 1997, memo
from Richard D. Wilson, Acting Assistant Administrator for Air and
Radiation, entitled ``Guidance for Implementing the 1-Hour Ozone and
Pre-existing PM10 NAAQS.'' This document outlines EPA policy
relating to allowing states flexibility to expand the geographic size
of the area from which they can obtain emission reductions to meet
their annual average 3 percent per year ROP requirements. Specifically,
EPA states that an area in nonattainment for the 1-hour NAAQS should be
allowed to take credit for emissions reductions obtained from sources
outside the designated nonattainment area for the post-1999 ROP
requirement as long as the sources are no farther than 100 km (for VOC
sources) or 200 km (for NOX sources) away from the
nonattainment area. Because the ROP requirement is a general ROP
requirement for at least 3 percent-per-year and not a requirement for
specific programs or measures such as vehicle inspection and
maintenance, this flexibility would continue to provide the same ROP in
terms of reducing emissions. EPA believes that this additional
flexibility for crediting reductions outside nonattainment areas is
consistent with the CAA.
EPA believes that emissions from the source(s) outside the
nonattainment area that are involved in the substitution must be
included in the baseline ROP emissions and target ROP reduction
calculation. Emissions from source(s) outside the nonattainment area
that are not involved in the substitution would not have to be
inventoried or included in the baseline ROP emissions and target ROP
calculation. Under this approach, States will need to track and record
emission reductions and certify to EPA the amount of emission
reductions achieved for ROP.
In order to develop the Post-1999 ROP Plan in accordance with EPA
guidance, EPD updated the 1990 NOX emissions inventory and
adjusted the inventory by removing NOX already scheduled for
control by previous federal regulations on motor vehicles and gasoline
volatility. The required NOX reductions and the resulting
target levels of future NOX emissions were calculated,
growth in NOX emissions was estimated, and the effects on
projected emissions of various emissions control rules already adopted
and implemented, or scheduled for implementation prior to the end of
2004, were calculated.
EPD is including reductions of NOX emissions at five
coal-fired electrical power plants. These Georgia Power Company plants
impact the nonattainment area but are located in neighboring counties
designated as attainment for the 1-hour ozone standard. As a control
strategy to attain the 1-hour ozone standard in Atlanta, stricter
controls have been placed on these power plants. All five of these
power plants are located within 200 kilometers of the Atlanta 1-hour
ozone nonattainment area.
EPD has recently conducted an Early Attainment Assessment to review
the progress made to date in implementing the July 17, 2001, ozone
attainment SIP. The Early Attainment Assessment indicates that the
emission reductions achieved to date from the 1-hour ozone attainment
SIP control measures have been effective in reducing monitored levels
of ozone and that the area appears to be on track to attain in 2004.
2. The Early Attainment Demonstration Is Flawed
Comment: This commentor stated that the early attainment
demonstration performed by the state is flawed and does not demonstrate
attainment since it was not based on photochemical grid modeling.
Response: As explained in the Proposal Notice, the purpose of the
ROP SIP is to demonstrate a percentage of emission reductions from the
baseline emissions and is not an attainment demonstration SIP. Thus
these comments are not applicable to the ROP SIP or the adequacy of
MVEBs established in the ROP SIP. EPA will take comments regarding the
adequacy and approvability of the MVEBs established in the attainment
demonstration when it takes action on the attainment SIP.
3. Proposed Early Adequacy Determination for Motor Vehicle
Emissions Budgets
Comment: EPA may not approve the revised, higher MVEBs for 2004
absent a showing that they will be adequate to attain the NAAQS. Since
no demonstration has been submitted to demonstrate that the SIP as a
whole, including the higher motor vehicle emissions budgets, will
provide for attainment, there is no basis for EPA to approve or find
these proposed budgets adequate pursuant to 40 CFR 93.118(e)(4).
Response: The comment refers to the budgets providing for
attainment. However, the purpose of the implementation plan is to
demonstrate reasonable further progress toward attainment. To quote 40
CFR 93.118 (e)(4)(iv) in full--``the motor vehicle emissions budget(s)
when considered together with all other emissions sources, is
consistent with the applicable requirements for reasonable further
progress, attainment or maintenance (whichever is relevant to the given
implementation plan submission).'' Since the purpose of the relevant
implementation plan is to demonstrate reasonable further progress,
commonly referred to as a ROP demonstration, the budgets do not need to
provide for attainment as suggested by the commentors.
Furthermore, EPA believes that it is correct that the inventory of
mobile emissions is higher than the past SIP mobile emissions because
they are based upon use of updated planning assumptions and emissions
models.
[[Page 42883]]
Since the time of last rate of progress SIP submittal and approval a
new emission model has been approved by EPA--MOBILE 6. EPA requires
that the latest emissions model approved by EPA be used for the
development of implementation plans (Section 110 of the CAA). The
previously submitted implementation plan referenced by the commentors
was based on version 5 of the MOBILE model applicable at the time of
its development. Therefore, comparisons between inventories developed
using different models and updated planning assumptions, models, and
methodologies are not valid. In accordance with EPA's MOBILE6 policy
guidance (http ://www.epa.govlotaqlmodelslmobile6/m6policy), base year
and future year motor vehicle emission inventories for this Post-1999
ROP plan were recalculated with the latest available planning
assumptions. As stated in section 6.2 of the Post-1999 ROP plan,
``These mobile source inventories reflect the most up-to-date mobile
modeling assumptions, including * * * VMT projected from a state-of-
the-art travel demand model for the 13 counties and emission factors
from EPA's latest mobile source emission factor model, MOBILE6.2.''
Other updated planning assumptions and methodologies reflected in
the Post-1999 ROP plan's projected mobile source emissions inventories
include revised speeds and fleet age distributions, and the use of a
travel demand model link-based emissions estimation procedure.
Comment: Compliance with the ROP requirements requires that total
NOX be reduced in 2004 to 392.2 tpd, even conceding EPD's
new flawed baseline methodology or 376.7 tpd under the proper baseline
methodology employed by the agency in 1997. The SIP does not contain
measures that will achieve this level of NOX emissions if
the MVEB are 318 tpd. All other emissions of NOX must be
reduced to 58 tpd in order to allow an MVEB at 318 tpd in 2004.
Response: This comment is based in part on the position that
emissions for the five power plants within 200 kilometers of the
nonattainment area cannot be included in the ROP calculation. As
explained by EPD in the State's responses to the commentor issues 1 and
2 on pages 2 and 3 of the December 24, 2003, comments response memo
from EPD, EPD followed EPA's guidance, which allows states the
flexibility to expand the geographic size of the area from which the
state can obtain emission reductions. EPA has explained its position on
this issue in the first response to comment.
In accordance with EPA policy, EPD did account for the required 9%
reduction in NOX emissions for the period 1996-1999 in
calculating the 2002 and 2004 target levels of emissions. The state
explains this in the response to commentor Issue 3 on page 3 of the
December 24, 2003, State's comments response memo. This memo explained
how EPD used the correct methodology for calculating ROP target levels
of emissions, Georgia's 9% Plan, and how the emissions reductions
required between 1996 and 1999 would be achieved. For the Post-1999 ROP
plan, EPD followed EPA guidance in updating the 1999 NOX
target level of emissions, in calculating the post-1999 target levels,
and in projecting 2002 and 2004 emissions for all source sectors. In
accordance with EPA guidance, EPD modeled the mobile and nonroad source
sectors for 2002 and 2004, and grew (with an EPA computer model
entitled: Economic Growth and Analysis System) all other emissions from
those compiled in Georgia's 1999 Periodic Emissions Inventory. This
methodology correctly accounts for all growth as well as reductions in
emissions that occurred up to 1999, and results in a NOX
emissions target for 2004 of 854.7 tpd.
Comment: MVEB in a submitted SIP may not be approved unless the SIP
``is consistent with applicable requirements for reasonable further
progress, attainment or maintenance.'' 40 CFR 93.118 (e)(4) (iv).
Response: As stated above the commentors's citation is incomplete
and the quotation omits the key contextual phrase, ``whichever is
relevant to the given implementation plan or submission.'' The
regulatory text to which the commentor refers is 40 CFR
93.118(e)(4)(iv). That section states: ``(4) EPA will not find a motor
vehicle emissions budget in a submitted control strategy implementation
plan revision or maintenance plan to be adequate for transportation
conformity purposes unless the following minimum criteria are
satisfied: [subparagraphs i through iii omitted] (iv) The motor vehicle
emissions budget(s), when considered together with all other emissions
sources, is consistent with applicable requirements for reasonable
further progress, attainment, or maintenance (whichever is relevant to
the given implementation plan submission);''
The SIP now under consideration is not an attainment demonstration,
but a ``reasonable further progress'' SIP within the context of 40 CFR
93.1 18(e)(4)(iv). Accordingly, the relevant criterion for MVEB
adequacy is that the MVEB, when considered together with all other
emissions sources, is consistent with the requirement to show an
average 3% per year reduction in ozone precursors from 1999 to the
anticipated attainment date of 2004. The Post-1999 ROP SIP does show
this required reduction, in full accordance with guidance issued by
EPA.
Comment: With regard to the State's draft Vehicle Miles Traveled
(VMT) SIP, currently under internal review prior to submission to EPA,
concern is raised regarding the lack of controls, coupled with the
proposed elevated MVEB and a regional transportation plan, that, while
still in draft form, demonstrates an almost overwhelming preference for
road-building projects, will place Atlanta at a disadvantage in the
long run as it struggles to meet the more stringent 8-hour standard
that will be in place as of April 15, 2005.
Response: The VMT requirement is separate from the ROP SIP
requirement. The purpose of the ROP SIP is to demonstrate a percentage
of emission reductions. Its purpose is not to meet the VMT requirement
in the severe classification attainment SIP pursuant to section 182 of
the CAA. EPA will take comments regarding the VMT requirement in the
attainment demonstration when that SIP is submitted and EPA takes
action on that SIP. Furthermore, EPA continues to consult and work
closely with the state transportation and air quality stakeholders in
the development of the 2030 regional transportation plan and the air
quality motor vehicle emissions analysis of that plan to ensure that it
does not create new violations of the Federal air quality standards,
increase the frequency or severity of existing violations of the
standard or delay attainment of the standards in Atlanta.
IV. Final Action
EPA is approving the Georgia Post-1999 Rate-of-Progress Plan and
providing notice that it has determined the 2004 VOC and NOX
MVEBs to be adequate under the requirements of 40 CFR 93.118(e)(4).
Additionally, through this action, EPA is approving the 2004 MVEBs.
V. 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
[[Page 42884]]
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 Clean
Air Act. 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 Clean Air Act. 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 Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) 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 agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. 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 Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 17, 2004. 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, Carbon monoxide,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements.
Dated: July 9, 2004.
A. Stanley Meiburg,
Acting 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.
Subpart L--Georgia
0
2. Section 52.570(e), is amended by adding a new entry at the end of
the table for ``Post-1999 Rate of Progress Plan'' to read as follows:
Sec. 52.570 Identification of plan.
* * * * *
(e) * * *
----------------------------------------------------------------------------------------------------------------
Applicable geographic or State submittal date/
Name of nonregulatory SIP provision nonattainment area effective date EPA approval date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
19. Post-1999 Rate of Progress Plan Atlanta Metropolitan Area.. December 24, 2003..... July 19, 2004 [Insert
citation of
publication]
----------------------------------------------------------------------------------------------------------------
[FR Doc. 04-16203 Filed 7-16-04; 8:45 am]
BILLING CODE 6560-50-P