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Rule

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

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AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

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

DATES:

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

ADDRESSES:

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

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FOR FURTHER INFORMATION CONTACT:

Stacy Harder, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. EPA Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Phone: (404) 562-9042. E-mail: harder.stacy@epa.gov.

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SUPPLEMENTARY INFORMATION:

Table of Contents

I. What is the Background for This Action?

II. What is the Effect of This Action?

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

IV. Final Action

V. Statutory and Executive Order Reviews

I. What Is the Background for This Action?

The CAA requires EPA to establish a NAAQS for pollutants that “may reasonably be anticipated to endanger public health and welfare” and to develop a primary and secondary standard for each NAAQS. The primary Start Printed Page 12014standard is designed to protect human health with an adequate margin of safety and the secondary standard is designed to protect public welfare and the environment. EPA has set NAAQS for six common air pollutants referred to as criteria pollutants: Carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur dioxide. On July 18, 1997, EPA promulgated a revised 8-hour ozone standard of 0.08 ppm. Under EPA regulations at 40 CFR part 50, the 8-hour ozone standard is attained when the 3-year average of the annual fourth highest daily maximum 8-hour average ambient air quality ozone concentration is less than or equal to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). (See, 69 FR 23857 (April 30, 2004) FOR FURTHER INFORMATION CONTACT.)

The Atlanta Area is located in Northern Georgia and consists of Barrow, Barton, Carroll, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Newton, Paulding, Pickens, Rockdale, Spaulding, and Walton Counties. The Atlanta Area was initially designated for the 8-hour ozone standard on April 30, 2004, and classified as “marginal” nonattainment. For areas subject to title I, Part D, Subpart 2 of the CAA, such as the Atlanta Area, the maximum period for attainment runs from the effective date of designations for the 8-hour ozone NAAQS. This attainment period must also be the same period as provided in Table 1 of section 181(a) of the CAA: Marginal—3 years; Moderate—6 years; Serious—9 years, Severe—15 or 17 years; and Extreme—20 years.

On October 16, 2007, EPA published a rulemaking proposing its determination that the Atlanta Area did not attain the 8-hour ozone NAAQS by June 15, 2007, the applicable attainment date for marginal nonattainment areas, and proposing a SIP submission schedule. See, 72 FR 58572. The proposed finding was based on ambient air quality data from years 2004, 2005 and 2006. In the October 16, 2007, proposal, EPA explained that, consistent with Section 181(b)(2) of the CAA, when EPA finalizes its determination that the Atlanta Area failed to attain, and that requirement becomes effective, the Atlanta Area would be reclassified by operation of law to the next highest classification, or “moderate” nonattainment. See the discussion of the appropriate reclassification of the area in the proposal at 72 FR 58572, 58574. EPA further proposed that the State submit the SIP revisions meeting the new moderate area requirements as expeditiously as practicable, but no later than December 31, 2008. For further background, see EPA's October 16, 2007, proposal. EPA provided an opportunity for public comment on its October 16, 2007, proposal, but received no comments.

II. What Is the Effect of This Action?

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

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

When an area is reclassified, a new attainment date for the reclassified area must be established. Section 181 of the CAA states that the attainment date for moderate nonattainment areas shall be as expeditiously as practicable, but not later than six years after designation, or June 15, 2010, in the case of the Atlanta Area. The “as expeditiously as practicable” attainment date will be determined as part of the action on the required SIP submittal demonstrating attainment of the 8-hour ozone standard.

When an area is reclassified, EPA has the authority under section 182(i) of the CAA to adjust the CAA's submittal deadlines for any new SIP revisions that are required as a result of the reclassification. Pursuant to 40 CFR 51.908(d), for each nonattainment area, the state must provide for implementation of all control measures needed for attainment no later than the beginning of the attainment year ozone season. The attainment year ozone season is the ozone season immediately preceding a nonattainment area's attainment date, in this case, 2009 (40 CFR 51.900(g)). The ozone season is the ozone monitoring season as defined in 40 CFR part 58, Appendix D, section 4.1, Table D-3 (October 17, 2006, 71 FR 61236). For the purposes of this reclassification of the Atlanta Area, March 1, 2009, is the beginning of the ozone monitoring season. As a result and in light of discussions with Georgia, EPA determines that the required SIP revision be submitted as expeditiously as practicable, but no later than December 31, 2008. This timeline also calls for implementation of applicable controls no later than the beginning of the ozone monitoring season. The SIP revision must include the requirements for moderate areas. See, EPA's proposal at 72 FR 58572, 58575.

IV. Final Action

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

V. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993), and is therefore not subject to review under the Executive Order.

The Agency has determined that the finding of nonattainment would result in none of the effects identified in the Executive Order. Under section 181(b)(2) of the CAA, determinations of nonattainment are based upon air quality considerations and the resulting reclassifications must occur by operation of law. Start Printed Page 12015

B. Paperwork Reduction Act

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. This final rule reclassifying the Atlanta Area as a moderate ozone nonattainment area and adjusting applicable deadlines does not establish any new information collection burden. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of this action on small entities, small entity is defined as: (1) A small business that is a small industrial entity as defined in the U.S. Small Business Administration (SBA) size standards, see, 13 CFR part 121; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. Determinations of nonattainment and the resulting reclassification of nonattainment areas by operation of law under section 181(b)(2) of the CAA do not in and of themselves create any new requirements. Instead, this rulemaking only makes a factual determination, and does not directly regulate any entities. After considering the economic impacts of this action on small entities, I certify that this final rule will not have a significant economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to state, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation to why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

This final rule does not include a Federal mandate within the meaning of UMRA that may result in expenditures of $100 million or more in any one year by either state, local, or Tribal governments in the aggregate or to the private sector, and therefore, is not subject to the requirements of sections 202 and 205 of the UMRA. Also, EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments and therefore, is not subject to the requirements of section 203. EPA believes that the finding of nonattainment is a factual determination based upon air quality considerations and that the resulting reclassification of the Atlanta Area must occur by operation of law. Thus, EPA believes that this finding does not constitute a Federal mandate, as defined in section 101 of the UMRA, because it does not impose an enforceable duty on any entity.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

This final rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule merely determines that the Atlanta Area has not attained the 8-hour ozone standard by its applicable attainment date, and reclassifies the Atlanta Area as a moderate ozone nonattainment area and adjusts applicable deadlines. Thus, Executive Order 13132 does not apply to this final rule.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

Executive Order 13175, entitled, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This action does not have “Tribal implications” as specified in Executive Order 13175. This action Start Printed Page 12016merely determines that the Atlanta Area has not attained the 8-hour ozone standard by its applicable attainment date, and reclassifies the Atlanta area as a moderate ozone nonattainment area and adjusts applicable deadlines. The CAA and the Tribal Authority Rule establish the relationship of the Federal government and Tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Thus, Executive Order 13175 does not apply to this final rule.

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

Executive Order 13045: “Protection of Children From Environmental Health and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This final rule is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health risks or safety risks addressed by this rule present a disproportionate risk to children. This action merely determines that the Atlanta Area has not attained the 8-hour ozone standard by its applicable attainment date, and reclassifies the Atlanta area as a moderate ozone nonattainment area and adjusts applicable deadlines.

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

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

I. National Technology Transfer Advancement Act

Section 12(d) of the National Technology Transfer Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS. This final rule merely determines that the Atlanta Area has not attained the 8-hour ozone standard by its applicable attainment date, and reclassifies the Atlanta Area as a moderate ozone nonattainment area and adjusts applicable deadlines. Therefore, EPA did not consider the use of any voluntary consensus standards.

J. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

K. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this final action must be filed in the United States Court of Appeals for the appropriate circuit by May 5, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See, section 307(b)(2) of the CAA.)

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List of Subjects in 40 CFR Part 81

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Dated: February 22, 2008.

J.I. Palmer, Jr.,

Regional Administrator, Region 4.

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is amended as follows:

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PART 81—[AMENDED]

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

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

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Subpart C—Section 107 Attainment Status Designation

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

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Georgia.
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Georgia-Ozone (8-Hour Standard)

Designated areaDesignation aCategory/classification
Date 1TypeDate 1Type
Atlanta, GA:
Barrow CountyNonattainmentApril 7, 2008Subpart 2/Moderate.
Bartow CountyNonattainmentApril 7, 2008Subpart 2/Moderate.
Carroll CountyNonattainmentApril 7, 2008Subpart 2/Moderate.
Cherokee CountyNonattainmentApril 7, 2008Subpart 2/Moderate.
Clayton CountyNonattainmentApril 7, 2008Subpart 2/Moderate.
Cobb CountyNonattainmentApril 7, 2008Subpart 2/Moderate.
Coweta CountyNonattainmentApril 7, 2008Subpart 2/Moderate.
DeKalb CountyNonattainmentApril 7, 2008Subpart 2/Moderate.
Douglas CountyNonattainmentApril 7, 2008Subpart 2/Moderate.
Fayette CountyNonattainmentApril 7, 2008Subpart 2/Moderate.
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Forsyth CountyNonattainmentApril 7, 2008Subpart 2/Moderate.
Fulton CountyNonattainmentApril 7, 2008Subpart 2/Moderate.
Gwinnett CountyNonattainmentApril 7, 2008Subpart 2/Moderate.
Hall CountyNonattainmentApril 7, 2008Subpart 2/Moderate.
Henry CountyNonattainmentApril 7, 2008Subpart 2/Moderate.
Newton CountyNonattainmentApril 7, 2008Subpart 2/Moderate.
Paulding CountyNonattainmentApril 7, 2008Subpart 2/Moderate.
Rockdale CountyNonattainmentApril 7, 2008Subpart 2/Moderate.
Spalding CountyNonattainmentApril 7, 2008Subpart 2/Moderate.
Walton CountyNonattainmentApril 7, 2008Subpart 2/Moderate.
*         *         *         *         *         *         *
a Includes Indian Country located in each county or area, except as otherwise specified.
1 This date is June 15, 2004, unless otherwise noted.
* * * * *
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[FR Doc. E8-4349 Filed 3-5-08; 8:45 am]

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