Determination of Nonattainment as of November 15, 1999, and Reclassification of the Atlanta 1-Hour Ozone Nonattainment Area; State of Georgia

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: September 26, 2003 (Volume 68, Number 187)]
[Rules and Regulations]
[Page 55469-55475]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26se03-13]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[GA-57-200341; FRL-7563-4]

Determination of Nonattainment as of November 15, 1999, and
Reclassification of the Atlanta 1-Hour Ozone Nonattainment Area; State
of Georgia

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: EPA is taking final action to issue a determination that the
Metropolitan Atlanta 1-hour serious ozone nonattainment area
(hereinafter referred to as the Atlanta area) did not attain the 1-hour
ozone national ambient air quality standard (NAAQS) by the November 15,
1999, Clean Air Act (CAA) deadline for serious ozone nonattainment
areas. As a result, the Atlanta area is reclassified by operation of
law as a severe ozone nonattainment area on the effective date of this
rule. The Georgia Environmental Protection Division (GAEPD) must submit
by July 1, 2004, a State Implementation Plan (SIP) revision for the
Atlanta area that meets the severe area 1-hour ozone nonattainment area
requirements of CAA section 182(d). The due date for the section 185
enforcement rule is July 1, 2005, due to the need for the State to
acquire the necessary statutory authority to implement this rule.
Finally, EPA is adjusting the dates by which the area must achieve a
Rate of Progress plan (ROP) to cover an average of 3 percent per year
reduction in ozone precursor emissions from 1999 to the attainment year
and adjusting contingency measure requirements as this relates to the
ROP milestone. In an Order entered on June 16, 2003, the United States
Court of Appeals for the Eleventh Circuit granted EPA's motion for
voluntary vacatur of the EPA's extension of the 1-hour ozone attainment
date for the Atlanta area and EPA's approval of the 1-hour ozone
attainment demonstration SIP submitted by the GAEPD on July 17, 2001,
and remanded the matter to the agency for further proceedings
consistent with the court's order. This final determination and this
notice are in direct response to and comply with the court's order.

DATES: This final rule is effective January 1, 2004.

ADDRESSES: Copies of documents relevant to this action are available
for public inspection during normal business hours at the following
addresses: U.S. EPA, Region 4 Air Planning Branch, 61 Forsyth Street,
SW., Atlanta, Georgia 30303-8960.
Air Protection Branch, Georgia Environmental Protection Division,
Georgia Department of Natural Resources, 4244 International Parkway,
Suite 120, Atlanta, Georgia 30354. Telephone (404) 363-7000.

FOR FURTHER INFORMATION CONTACT: Scott M. Martin, EPA Region 4,
(404) 562-9036 or email: martin.scott@epa.gov.

SUPPLEMENTARY INFORMATION: The use of ``we,'' ``us,'' or ``our'' in
this document refers to EPA.

Table of Contents

I. Background
II. Atlanta 1-Hour Ozone Nonattainment Area
III. Explanation of a SIP
IV. The NAAQS For Ozone
V. Application of the CAA Provisions Regarding Determinations of
Nonattainment and Reclassifications
VI. Necessity of This Action
VII. Results of This Action
VIII. Reclassification
IX. Effective Date of Reclassification
X. Severe Area Attainment Date
XI. Severe Area Requirements SIP Submittal
XII. Rate-of-Progress (ROP) Schedule
XIII. Use of MOBILE6 in SIP Submittals
XIV. Impacts on the Title V Program
XV. Vacatur of Previous Approval
XVI. Comment and Response
XVII. Final Action
XVIII. Statutory and Executive Order Reviews

I. Background

In a Federal Register notice published on December 11, 2001, (66 FR
63972) EPA proposed to approve the 1-hour ozone attainment
demonstration for the Atlanta 1-hour ozone nonattainment area which was
submitted by the GAEPD on July 17, 2001, and extend the attainment date
to November 15, 2004. Additionally, in the alternative, EPA proposed to
find that the Atlanta area had failed to attain the 1-hour ozone NAAQS
by November 15, 1999, the date set forth in the CAA for serious
nonattainment areas. Subsequently, in a Federal Register notice
published on May 7, 2002, (67 FR 30574) EPA granted final approval to
the 1-hour ozone attainment demonstration for the Atlanta area as
submitted on July 17, 2001, the Reasonably Available Control Measures
(RACM) analysis, commitment to perform an early attainment assessment,
contingency measures, the 2004 motor vehicle emissions budget (MVEB),
and the Partnership for a Smog Free Georgia (PSG) program, and EPA
extended the area's attainment date to November 15, 2004. At that time,
EPA did not finalize the finding of failure to attain and the

[[Page 55470]]

Atlanta area remained classified as a serious nonattainment area.
EPA cited its July 16, 1998, guidance memorandum entitled
``Extension of Attainment Dates for Downwind Areas'' which was
published in a notice of interpretation on March 25, 1999, (64 FR
14441) as justification for the extension of the attainment date
without reclassification. On July 2, 2002, the D.C. Circuit Court,
Sierra Club v. EPA, 294 F.3d 155, determined that the CAA precluded the
attainment date extension policy as a matter of law. The Seventh
Circuit, Sierra Club v. EPA,, 311 F.3d 853 (7th Cir. Nov. 25, 2002),
and the Fifth Circuit, Sierra Club v. EPA, 314 F.3d 735 (5th Cir. Dec.
11, 2002) subsequently issued opinions that reached the same conclusion
with respect to extensions granted to St. Louis, MO and Beaumont, TX
\1\. In light of the decisions of these circuits, on February 20, 2003,
the EPA filed a motion for voluntary vacatur of its extension of the
attainment date deadline for the Atlanta 1-hour ozone nonattainment
area and its approval of the Atlanta area 1-hour ozone attainment
demonstration SIP. The Eleventh Circuit Court of Appeals granted EPA's
request on June 16, 2003, and the Court remanded the matter to EPA for
further proceedings consistent with the court's order.
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\1\ In the wake of these decisions, EPA issued final rulemakings
reclassifying the Washington, DC ozone nonattainment area, 68 FR
3410 (January 24, 2003), and the St. Louis ozone nonattainment area,
68 FR 4835 (January 30, 2003). (EPA subsequently redesignated the
St. Louis area to attainment for the ozone standard 68 FR 25418 and
68 FR 25442 (May 12, 2003).) In addition, in light of the Fifth
Circuit's decision on Beaumont, EPA recently issued a final rule
withdrawing a transport-based attainment date extension and
reclassifying the Baton Rouge ozone nonattainment area (68 FR 20077
(April 24, 2003)) and has proposed to do the same for the Beaumont
area (68 FR 36756 (June 19, 2003)).
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II. Atlanta 1-Hour Ozone Nonattainment Area

The Atlanta 1-hour ozone nonattainment area consists of the
following counties: Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas,
Fayette, Forsyth, Fulton, Gwinnett, Henry, Paulding, and Rockdale.

III. Explanation of a SIP

Section 110 of the CAA requires states to develop air pollution
regulations and control strategies to ensure that state air quality
meets the NAAQS established by EPA. These ambient standards are
established under section 109 of the CAA, and they currently address
six criteria pollutants: carbon monoxide, nitrogen dioxide, ozone,
lead, particulate matter, and sulfur dioxide. Each state must submit
these regulations and control strategies to us for approval and
incorporation into the Federally-enforceable SIP. Each Federally-
approved SIP protects air quality primarily by addressing air pollution
at its point of origin. These SIPs can be extensive. They may contain
state regulations or other enforceable documents and supporting
information such as emission inventories, monitoring networks, and
modeling demonstrations.

IV. The NAAQS For Ozone

Table 1.--Summary of Ozone Standards
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Standard Value Type Method of compliance
--------------------------------------------------------------------------------------------------------------------------------------------------------
1-hour................................ 0.12 ppm.................. Primary and Secondary...................... Must not be exceeded, on average, more
than one day per year over any three-
year period at any monitor within an
area.
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(Primary standards are designed to protect public health and secondary standards are designed to protect public welfare and the environment.)

The 1-hour ozone standard of 0.12 parts per million (ppm) was
promulgated in 1979. The 1-hour ozone standard continues to apply to
the Atlanta area, and it is the classification of the Atlanta area with
respect to the 1-hour ozone standard that is addressed in this
document.

V. Application of the CAA Provisions Regarding Determinations of
Nonattainment and Reclassifications

On December 11, 2001, EPA proposed its finding that the Atlanta
area did not attain the 1-hour ozone standard by the applicable date
(66 FR 63972). In that notice of proposed rulemaking we discussed how
we believed the provisions of section 181(b)(2), the relevant sections
of the CAA regarding determinations of attainment and reclassifications
for failure to attain, would apply to the Atlanta area. The proposed
finding was based upon ambient ozone concentration data for the period
1997 through 1999, from the monitoring sites in the Atlanta area,
several of which recorded an average of more than one exceedance per
year.
Section 181(b)(2)(A) of the CAA requires that when EPA determines
that an area has not attained the standard by its statutorily required
date the area shall be reclassified by operation of law to the higher
of:
(1) The next higher classification for the area, or
(2) The classification applicable to the area's design value as
determined at the time EPA publishes its notice that the area failed to
attain.
Even if a serious area's design value at the time of
reclassification is lower than the design value for serious areas that
serious area cannot be reclassified to a lower classification because
the minimum statutory classification resulting from a failure to attain
is severe. No area can be reclassified to a category higher than
severe. Extreme is the only classification higher than severe, but the
statute does not permit reclassification to this level.
The air quality data upon which we made the proposed finding of
failure to attain the ozone NAAQS were available for comment in our
December 11, 2001, notice of proposed rulemaking. We received no
adverse comments pertaining to that air quality data and the proposed
determination of nonattainment.

Table 2.--Air Quality Monitoring Data for the Atlanta Area 1997-1999
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Total Annual average
Site ID County exceedances 97- design expected Design value
99 exceedances (ppm)
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13-089-0002....................... DeKalb.............. 16 6.7 0.142
13-089-3001....................... DeKalb.............. 10 4.4 0.135

[[Page 55471]]

13-097-0004....................... Douglas............. 9 3.5 0.131
13-121-0055....................... Fulton.............. 28 10.8 0.156
13-135-0002....................... Gwinnett............ 7 2.9 0.138
13-223-0003....................... Paulding............ 3 1.1 0.124
13-247-0001....................... Rockdale............ 28 10.3 0.153
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*Only monitors with three complete years of data were used for these calculations.

EPA has determined that the relevant air quality data for the
period of 1997 through 1999, inclusive, for the Atlanta area shows that
the Atlanta area contained at least one monitor with an average annual
number of expected exceedances that was greater than the 1.0 allowed by
the 1-hour ozone NAAQS. Therefore, we make the determination pursuant
to section 181(b)(2)(B) of the CAA that the Atlanta area did not attain
the 1-hour ozone standard by the November 15, 1999, attainment date,
and that the area is reclassified by operation of law to severe
nonattainment on the effective date of this rule.

VI. Necessity for This Action

On May 7, 2002, EPA granted final approval to the 1-hour ozone
attainment demonstration for the Atlanta area and extended the
attainment date to November 15, 2004. Subsequently, the Southern
Organizing Committee for Economic and Social Justice, the Georgia
Coalition for the People's Agenda and the Sierra Club petitioned for
review of the agency's action to the 11th Circuit Court of Appeals. Due
to a series of prior rulings in other circuits that EPA's attainment
date extension policy was invalid as a matter of law, EPA filed a
motion for voluntary vacatur with the 11th Circuit Court of Appeals on
February 20, 2003. The 11th Circuit granted the request for voluntary
vacatur on June 16, 2003, and remanded the matter to the agency for
further proceedings consistent with the court's order.

VII. Results of This Action

In this action, EPA is issuing a final determination pursuant to
section 181(b)(2) of the CAA, that the Atlanta area did not attain the
1-hour ozone NAAQS by November 15, 1999. In doing so, EPA is fulfilling
our nondiscretionary duty pursuant to the CAA. As a result of this
final determination, the Atlanta area is reclassified by operation of
law to severe ozone nonattainment pursuant to section 181(b)(2) of the
CAA. In addition, this action sets the dates by which the Atlanta area
must submit a SIP revision addressing the CAA's pollution control
requirements for severe ozone nonattainment areas (the ``severe area
SIP'') and to attain the 1-hour NAAQS for ozone.
Section 182(i) states that the Administrator may adjust applicable
deadlines (other than attainment dates) to the extent such adjustment
is necessary or appropriate to assure consistency for submission of the
requirements applicable to the reclassified area. An area reclassified
to severe is required to submit SIP revisions addressing the severe
area requirements for the 1-hour ozone NAAQS in section 182(d) and the
penalty requirement in section 185.
In the December 11, 2001, (66 FR 63972) supplemental proposed rule
EPA requested comment on the time frame for the State to submit the
severe area SIP requirements. The proposal requested comment on two
potential time frames of 12 months and 18 months. No comments were
received by EPA on this issue. Due to the short time frames, GAEPD in a
letter dated September 8, 2003, agreed to submit all SIPs, with one
exception, by July 1, 2004, which is less than the proposed time
frames. The one exception is the section 185 penalty rule. This SIP is
due 18 months after the effective date of this action, July 1, 2005,
because the State will need the full 18 months to acquire the necessary
statutory authority to implement this rule.

VIII. Reclassification

Section 181(b)(2)(A) of the CAA requires that, when an area is
reclassified for failure to attain, its reclassification be the higher
of the next higher classification or the classification applicable to
the area's ozone design value at the time the notice of
reclassification is published in the Federal Register. Section
181(b)(2)(A)(ii) provides that no area shall be reclassified as
Extreme. The Atlanta area is a serious nonattainment area with a design
value of 0.156 ppm based on monitoring data for the years 1997 to 1999.
Therefore, the Atlanta area is reclassified, by operation of law, as a
severe nonattainment area.

IX. Effective Date of Reclassification

EPA is setting the effective date of this action as January 1,
2004, because the GAEPD has calendar year contracts for sampling for
the Georgia fuel rule, as well as, calendar year reporting
requirements. The same suppliers and importers for the Georgia fuel
rule will be impacted by the requirement, beginning one year after the
effective date of the reclassification, to supply gasoline that
complies with the federal reformulated gasoline standards. Therefore,
this effective date will minimize complications regarding reporting and
compliance with both the State and federal fuel requirements.

X. Severe Area Attainment Date

Under section 181(a)(1) of the CAA, the new severe area attainment
deadline for the Atlanta area as reclassified pursuant to section
181(b)(2) is as expeditiously as practicable but no later than November
15, 2005. The expeditiously as practicable attainment date will be
determined as part of the approval of the severe area attainment
demonstration.

XI. Severe Area Requirements SIP Submittal

Under section 181(a)(1) of the CAA, the attainment deadline for
serious ozone nonattainment areas reclassified to severe under section
181(b)(2) is as expeditiously as practicable but no later than November
15, 2005. Under section 182(i), such areas are required to submit SIP
revisions addressing the severe area requirements for the 1-hour ozone
NAAQS. Under section 182(d), severe area plans are required to meet all
the requirements for serious area plans plus the requirements for
severe areas, including, but not limited to: (1) A 25 ton per year
major stationary source threshold; (2) additional reasonably available
control technology (RACT) rules for sources subject to the new lower
major applicability cutoff; (3) a

[[Page 55472]]

new source review (NSR) offset requirement of at least 1.3 to 1; (4) a
post-1999 rate-of-progress plan containing emission reductions of ozone
precursors of at least 3 percent per year from November 15, 1999, until
the attainment date; and (5) additional transportation control measures
(TCMs) needed to offset growth in emissions due to growth in vehicle
miles traveled (VMT); and (6) a fee requirement for major sources of
volatile organic compounds (VOC) and nitrogen oxides (NO_X)
should the area fail to attain by 2005. Additionally, section 211
``Reformulated Gasoline and Oxygenated Gasoline'' of CAA requires any
area reclassified from ``serious'' to ``severe'' to implement
reformulated gasoline. We have issued a ``General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990''
that sets forth our preliminary views on these section 182 requirements
and how we will act on SIPs submitted under Title I. See 57 FR 13498
(April 16, 1992) and 57 FR 18070 (April 28, 1992). Further, Georgia is
required to submit a revision to the SIP containing contingency
measures under sections 172(c)(9) and 182(c)(9) for its severe area SIP
to meet ROP requirements and for failure to attain.
The GAEPD's severe SIP for the Atlanta area must also contain
adopted regulations, and/or enforceable commitments to adopt and
implement control measures in regulatory form by specified dates,
sufficient to make the required rate-of-progress and to attain the 1-
hour ozone NAAQS as expeditiously as practicable but no later than
November 15, 2005. These adopted regulations must include, at a
minimum, the regulations to meet the specific requirements listed above
and any other emission reductions necessary to achieve attainment.

XII. Rate-of-Progress (ROP) Schedule

The section 182(c)(2)(B) reasonable further progress requirement
requires volatile organic compounds (VOC) or nitrogen oxides
(NO_X) reductions of 3 percent per year, averaged over a 3-
year period, until the attainment date, for serious and above ozone
nonattainment areas designated and classified under the 1-hour ozone
NAAQS. The EPA refers to these reductions as the ROP requirement.
The first required post-1999 ROP 9 percent reduction originally was
required by November 15, 2002 under the CAA. However, that date has
elapsed prior to the time Atlanta was redesignated and first became
subject to the requirement. Therefore, in this action EPA is allowing
the Atlanta area to demonstrate that the first required post-1999 9
percent ROP is achieved as expeditiously as practicable after November
15, 2002, but in any case no later than November 15, 2005. EPA is also
allowing the Atlanta area to link contingency measures for the 2002 ROP
milestone to this new date.
In light of the fact that the statutory deadline has passed, it is
impossible for the State to demonstrate any progress by a date that
passed before the time the area became classified as a severe area and
thus first became subject to the requirement to demonstrate post-1999
ROP. EPA agrees that the Atlanta area must now demonstrate such
progress, but reasonably concludes that the State must have some time
in which to actually develop and implement the measures to achieve such
ROP. EPA has addressed similar issues on several occasions in the past
when areas for various reasons have not timely submitted progress SIPs,
and when the date for achieving progress had passed prior to EPA action
on a progress SIP. EPA has routinely concluded in these circumstances
that the area should demonstrate the required ROP as expeditiously as
practicable once the statutory date for achieving such ROP had passed.
See, e.g., 65 FR 31485 (May 18, 2000), 63 FR 28898 (May 27, 1998), 62
FR 31343 (June 9, 1997). Even though there is no provision in the
statute expressly addressing the situation where an area has failed to
timely submit a progress SIP, EPA must fill the statutory gap where
such SIPs are submitted after the date for achieving progress, and EPA
has reasonably done so in this case by following its past practice of
requiring such SIPs to demonstrate ROP as expeditiously as practicable.
Although no court has directly addressed the issue of the propriety of
this ``as expeditious as practicable'' standard, courts have addressed
other issues concerning ROP plans submitted after the statutory date
for achieving ROP, which have demonstrated ROP as expeditiously as
practicable, without expressing any concern with that standard. See,
e.g., Sierra Club v. EPA, 252 F.3d 943 (8th Cir. 2001) (Court upheld
calculation methods used in 15 percent ROP plan submitted three years
after statutory date demonstrating achievement of ROP seven years after
statutory date).
For the reasons set forth in this final rulemaking notice and
pursuant to section 182(i) of the CAA, EPA is allowing the Atlanta area
to demonstrate the first required post-1999 9 percent ROP, due under
the CAA by November 15, 2002, as expeditiously as practicable after
that date (but in any case no later than November 15, 2005) in the
event that control measures currently in the Atlanta area SIP or
already promulgated by EPA did not achieve the required 9 percent
reduction by November 15, 2002.
The severe area SIP will have to provide for a total of a 3 percent
per year reduction from base line emissions between November 15, 1999,
and the attainment year. Because the 2002 ROP deadline is now past, the
ROP reduction requirement for the period 1999 to 2002 will have to be
achieved as expeditiously as practicable after November 15, 2002. EPA
understands that the GAEPD would likely submit one ROP plan which
includes all the ROP required until the attainment date, and will
demonstrate that the 1999-2002 increment is achieved as expeditiously
as practicable. The State must submit by July 1, 2004, an ROP plan to
achieve a three percent reduction in the precursor emissions per year
until the as expeditiously as practicable attainment year.
Additionally, the area must submit adequate on-road mobile source
emission budgets consistent with that plan.
Because EPA is allowing the GAEPD to demonstrate the first required
post-1999 9 percent ROP, due under the CAA by November 15, 2002, as
expeditiously as practicable after that date (but in any case no later
than November 15, 2005), EPA is also allowing the GAEPD to adopt
contingency measures keyed to this new date. Thus, the GAEPD must
submit contingency measures to take effect if the area fails to achieve
the first post 1999 9 percent ROP by the as expeditiously as
practicable date.

XIII. Use of MOBILE6 in SIP Submittals

The January 18, 2002, memorandum from John S. Seitz and Margo
Tsirigotis Oge ``Policy Guidance for the Use of MOBILE6 in SIP
Development and Transportation Conformity'' indicates, among other
things, that newly developed SIPS, including the motor vehicle
emissions budgets in the post-1999 rate-of-progress plans, will have to
be developed using MOBILE6. Using MOBILE6 may require a revision to the
1990 base year inventory and ROP targets.

XIV. Impacts on the Title V Program

Upon reclassification to severe, the major stationary source
threshold will be lowered. Consequently, the State's Title V operating
permits program regulations need to cover existing sources that will
become subject to the appropriate lower major stationary source
threshold. Any new major

[[Page 55473]]

stationary sources must submit a timely Title V permit application. ``A
timely application for a source applying for a part 70 permit for the
first time is one that is submitted within 12 months after the source
becomes subject to the permit program or on or before such earlier date
as the permitting authority may establish.'' See 40 CFR 70.5(a)(1). The
12 month (or earlier date set by the applicable permitting authority)
time period to submit a timely application will commence on the
effective date of the reclassification.

XV. Vacatur of Previous Approval

On May 7, 2002, EPA granted final approval to the 1-hour ozone
attainment demonstration for the Atlanta area and extended the
attainment date to November 15, 2004, (see 67 FR 30574). Subsequently,
the Southern Organizing Committee for Economic and Social Justice, the
Georgia Coalition for the People's Agenda and the Sierra Club
petitioned for review of the agency's action to the 11th Circuit Court
of Appeals alleging that EPA exceeded its authority because the CAA
precludes extension of attainment dates. Due to a series of prior
rulings, in other cases, which held that EPA's attainment date
extension policy was an invalid exercise of EPA's authority, on
February 20, 2003, EPA filed, with the 11th Circuit, a motion for
voluntary vacatur of the attainment date extension for the Atlanta area
and of EPA's approval of the attainment demonstration. On June 16,
2003, the 11th Circuit granted the request for voluntary vacatur and
remanded the matter to the agency for further proceedings consistent
with this order.
One result of vacating the attainment demonstration for the Atlanta
area is that the MVEBs contained in that approval were vacated as well.
The vacatur of the MVEB resulted in reverting to the previously
approved MVEBs for the purposes of transportation conformity. These
budgets can be found in the approval of the 15 Percent Rate of Progress
plan and the Post 1996 Rate of Progress Plan. These plans were granted
final approval on April 26, 1999, (see 64 FR 20186) and March 18, 1999,
(see 64 FR 13348), respectively.

XVI. Comment and Response

In the December 11, 2001, notice of supplemental proposed
rulemaking (66 FR 63972) for this action, EPA proposed to find that the
Atlanta area had failed to attain the 1-hour ozone NAAQS by November
15, 1999, the date set forth in the CAA for serious nonattainment areas
and that if EPA finalized this finding, the Atlanta area would be
reclassified, by operation of law, as a severe nonattainment area. EPA
also solicited comment on the schedule for submittal of the SIP
revisions required for severe areas should the area be reclassified.
In this document, EPA is responding to adverse comments that are
germane to this final action and which were submitted in response to
the December 11, 2001 (66 FR 63972), supplemental proposed rulemaking.
EPA received no adverse comments pertaining to the data used for our
nonattainment determination, and therefore we are making the
determination that the Atlanta area did not attain by its attainment
deadline.
Comment: Reclassification to severe nonattainment would not shorten
the time for meeting Atlanta's air quality goals. In fact, it would
extend the time for compliance to at least 2005. Regardless of whether
EPA grants an extension pursuant to the downwind extension policy, EPA
is prohibited from reclassifying the Atlanta area under Subpart 2 of
the federal CAA. Under 42 U.S.C. 7509(c), an area can be reclassified
only if EPA makes a formal finding ``[w]ithin 6 months following the
applicable attainment date'' that the area failed to attain the ozone
NAAQS. EPA did not make such a determination within six months of the
nominal 1999 attainment deadline for the Atlanta area, and thus is now
prohibited from doing so.
Response: EPA agrees that reclassification must be based on a
notice and comment rulemaking. See D.C. Circuit Slip opinion Sierra
Club v. Whitman No. 01-5123 and 015299 April 5, 2002, Slip Opinion
(D.C. Cir). EPA does not agree, however, that missing a mandatory
deadline means that EPA loses the power to act to discharge the duty to
which the deadline applied. EPA retains the power to act to discharge
the duty after the deadline has passed. Southwestern Pennsylvania
Growth Alliance v. Browner, 121 F.3d 106, 113-114 (3d Cir. 1997). (EPA
does not lose power to perform mandatory duty to act on redesignation
request after 18-month statutory period has elapsed).

XVII. Final Action

For the reasons set forth in the notice of proposed rulemaking and
in this final rulemaking notice, EPA has determined that the Atlanta 1-
hour ozone nonattainment area failed to attain the 1-hour ozone NAAQS
by November 15, 1999, as required by section 181(a) of the CAA, and the
Atlanta 1-hour ozone nonattainment area is reclassified by operation of
law to severe ozone nonattainment pursuant to section 181(b)(2) of the
CAA.

XVIII. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA is
required to determine whether regulatory actions are significant and
therefore should be subject to Office of Management and Budget (OMB)
review, economic analysis, and the requirements of the Executive Order.
The Executive Order defines a ``significant regulatory action'' as one
that is likely to result in a rule that may meet at least one of the
four criteria identified in section 3(f), including, under paragraph
(1), that the rule may ``have an annual effect on the economy of $100
million or more or adversely affect, in a material way, the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or state, local or tribal
governments or communities.''
The Agency has determined that the finding of nonattainment would
result in none of the effects identified in section 3(f) of the
Executive Order. Under section 181(b)(2) of the CAA, determinations of
nonattainment are based upon air quality considerations and the
resulting reclassifications must occur by operation of law. They do
not, in and of themselves, impose any new requirements on any sectors
of the economy. In addition, because the statutory requirements are
clearly defined with respect to the differently classified areas, and
because those requirements are automatically triggered by
classifications that, in turn, are triggered by air quality values,
determinations of nonattainment and reclassification cannot be said to
impose a materially adverse impact on state, local, or tribal
governments or communities.

B. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards 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

[[Page 55474]]

bodies. The NTTAA directs EPA to provide Congress, through OMB,
explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
This final action to reclassify the Atlanta area as a severe ozone
nonattainment area and to adjust applicable deadlines does not involve
technical standards. Therefore, EPA did not consider the use of any
voluntary consensus standards.

C. Paperwork Reduction Act

This final action to reclassify the Atlanta area as a severe ozone
nonattainment area and to adjust applicable deadlines does not impose
an information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

D. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements 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 not-for-profit enterprises, and small governmental
jurisdictions.
Determinations of nonattainment and the resulting reclassification
of nonattainment areas by operation of law under section 181(b)(2) of
the CAA do not in and of themselves create any new requirements.
Instead, this rulemaking only makes a factual determination, and does
not directly regulate any entities. See 62 FR 60001, 60007-8, and 60010
(November 6, 1997) for additional analysis of the RFA implications of
attainment determinations. Therefore, pursuant to 5 U.S.C. 605(b), I
certify that this final action does not have a significant impact on a
substantial number of small entities within the meaning of those terms
for RFA purposes.

E. Unfunded Mandates Reform Act

Under section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA), signed into law on March 22, 1995, EPA must prepare a budgetary
impact statement to accompany any proposed or final rule that includes
a Federal mandate that may result in estimated annual costs to state,
local, or tribal governments in the aggregate, or to the private
sector, of $100 million or more. Under section 205, EPA must select the
most cost-effective and least burdensome alternative that achieves the
objectives of the rule and is consistent with statutory requirements.
Section 203 requires EPA to establish a plan for informing and advising
any small governments that may be significantly or uniquely impacted by
the rule.
EPA believes, as discussed previously in this document, that the
finding of nonattainment is a factual determination based upon air
quality considerations and that the resulting reclassification of the
area must occur by operation of law. Thus, EPA believes that the
proposed finding does not constitute a Federal mandate, as defined in
section 101 of the UMRA, because it does not impose an enforceable duty
on any entity.

F. Executive Order 13045, Protection of Children From Environmental
Health Risks 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 final
action is not subject to Executive Order 13045 because this is not an
economically significant regulatory action as defined by Executive
Order 12866.

G. 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.'' Under
Executive Order 13132, EPA may not issue a regulation that has
Federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
Government provides the funds necessary to pay the direct compliance
costs incurred by state and local governments, or EPA consults with
state and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
Federalism implications and that preempts state law unless the Agency
consults with state and local officials early in the process of
developing the proposed regulation. This determination of nonattainment
and the resulting reclassification of a nonattainment area by operation
of law 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 (64 FR 43255, August
10, 1999), because this action does not, in and of itself, impose any
new requirements on any sectors of the economy, and does not alter the
relationship or the distribution of power and responsibilities
established in the CAA. Thus, the requirements of section 6 of the
Executive Order do not apply to these actions.

H. Executive Order 13175, Coordination With Indian Tribal Governments

This final 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 (59 FR 22951, November 9, 2000).

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

Under Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001), EPA must prepare for those matters identified as
significant energy actions. A ``Significant energy action'' is any
action by an agency (normally published in the Federal Register) that
promulgates or is expected to lead to the promulgation of a final rule
or regulation, including notices of inquiry, advance notices of
proposed rulemaking, and notices of proposed rulemaking that is a
significant regulatory action under Executive Order 12866 and is likely
to have a significant adverse effect on the supply, distribution, or
use of energy. Under Executive Order 12866, this action is not a
``significant regulatory action''. For this reason, the proposed
finding of nonattainment and reclassification is

[[Page 55475]]

also not subject to Executive Order 13211.

J. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a 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. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).

K. Petitions for Judicial Review

Under section 307(b)(1) of the 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 November 25, 2003. 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 to reclassify the Atlanta area as a severe
ozone nonattainment area and to adjust applicable deadlines may not be
challenged later in proceedings to enforce its requirements. (See
section 307(b)(2).)

List of Subjects in 40 CFR Part 81

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

Dated: September 15, 2003.
J.I. Palmer, Jr.,
Regional Administrator, Region 4.

? 40 CFR part 81 is amended as follows:

PART 81--[AMENDED]

? 1. The authority citation for part 81 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

? 2. In Sec. 81.311 the table entitled ``Georgia--Ozone (1-hour
standard)'' is amended by revising the entry for the Atlanta area to
read as follows:

Sec. 81.311 Georgia.

* * * * *

Georgia--Ozone (1-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area -----------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Classification
--------------------------------------------------------------------------------------------------------------------------------------------------------
Atlanta Area:
Cherokee County................... 11/15/1990 Nonattainment.......................... 1/01/2004 Severe.
Clayton County.................... 11/15/1990 Nonattainment.......................... 1/01/2004 Severe.
Cobb County....................... 11/15/1990 Nonattainment.......................... 1/01/2004 Severe.
Coweta County..................... 11/15/1990 Nonattainment.......................... 1/01/2004 Severe.
DeKalb County..................... 11/15/1990 Nonattainment.......................... 1/01/2004 Severe.
Douglas County.................... 11/15/1990 Nonattainment.......................... 1/01/2004 Severe.
Fayette County.................... 11/15/1990 Nonattainment.......................... 1/01/2004 Severe.
Forsyth County.................... 11/15/1990 Nonattainment.......................... 1/01/2004 Severe.
Fulton County..................... 11/15/1990 Nonattainment.......................... 1/01/2004 Severe.
Gwinnett County................... 11/15/1990 Nonattainment.......................... 1/01/2004 Severe.
Henry County...................... 11/15/1990 Nonattainment.......................... 1/01/2004 Severe.
Paulding County................... 11/15/1990 Nonattainment.......................... 1/01/2004 Severe.
Rockdale County................... 11/15/1990 Nonattainment.......................... 1/01/2004 Severe.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This date is October 18, 2000, unless otherwise noted.

[FR Doc. 03-24404 Filed 9-25-03; 8:45 am]
BILLING CODE 6560-50-P

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Determination of Nonattainment as of November 15, 1999, and Reclassification of the Atlanta 1-Hour Ozone Nonattainment Area; State of Georgia

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