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Environmental Protection Agency (EPA).
On June 21, 2012, the Georgia Department of Natural Resources, through the Georgia Environmental Protection Division (GA EPD), submitted a request to redesignate the Macon, Georgia, fine particulate matter (PM2.5) nonattainment area (hereafter referred to as the “Macon Area” or “Area”) to attainment for the 1997 annual PM2.5 national ambient air quality standards (NAAQS) and to approve a state implementation plan (SIP) revision containing a maintenance plan for the Macon Area. The Macon Area is comprised of Bibb County and a portion of Monroe County in Georgia. EPA is proposing to approve the redesignation request and the related SIP revision for Bibb County and a portion of Monroe County in Georgia, including GA EPD's plan for maintaining attainment of the PM2.5 standard in the Macon Area. EPA is also proposing to approve into the Georgia SIP the motor vehicle emission budgets (MVEBs) for nitrogen oxides (NOX) and PM2.5 for the year 2023 for the Macon Area that are included as part of Georgia's maintenance plan for the 1997 Annual PM2.5 NAAQS.
Comments must be received on or before March 7, 2014.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2012-0851, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for submitting comments.
2. Email: R4-RDS@epa.gov.
3. Fax: (404) 562-9019.
4. Mail: EPA-R04-OAR-2012-0851, 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.
5. Hand Delivery or Courier: Ms. Lynorae Benjamin, Chief, 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. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-2012-0851. EPA policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through www.regulations.gov or email, information that you consider to be CBI or otherwise protected. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or Start Printed Page 6843in 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.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Joydeb Majumder of the Regulatory Development Section, in the Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Joydeb Majumder may be reached by phone at (404) 562-9121, or via electronic mail at firstname.lastname@example.org.End Further Info End Preamble Start Supplemental Information
Table of Contents
I. What are the actions EPA is proposing to take?
II. What is the background for EPA's proposed actions?
III. What are the criteria for redesignation?
IV. Why is EPA proposing these actions?
V. What is EPA's analysis of the request?
VI. What is the effect of the January 4, 2013, D.C. Circuit decision regarding PM2.5 implementation under subpart 4?
VII. What is EPA's analysis of Georgia's proposed NOX and PM2.5 MVEBs for the macon area?
VIII. What is the status of EPA's adequacy determination for the proposed NOX and PM2.5 MVEBs for 2023 for the Macon area?
IX. Proposed Actions on the Redesignation Request and Maintenance Plan SIP Revisions Including Approval of the NOX and PM2.5 MVEBs for 2023 for the Macon Area
X. What is the effect of EPA's proposed actions?
XI. Statutory and Executive Order Reviews
I. What are the actions EPA is proposing to take?
In this action, EPA is proposing to make a determination that the Macon Area is continuing to attain the 1997 annual PM2.5 NAAQS  and to take additional actions related to Georgia's request to redesignate the Macon Area, which are summarized as follows and described in greater detail throughout this notice of proposed rulemaking: (1) To redesignate the Macon Area to attainment for the 1997 annual PM2.5 NAAQS; and (2) to approve, under section 175A of the Clean Air Act (CAA or Act), Georgia's 1997 annual PM2.5 NAAQS maintenance plan, including the associated MVEBs, for the Macon Area into the Georgia SIP.
First, EPA proposes to determine that the Macon Area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. In this action, EPA is proposing to approve a request to change the legal designation of Bibb County and a portion of Monroe County from nonattainment to attainment for the 1997 annual PM2.5 NAAQS.
Second, EPA is proposing to approve Georgia's 1997 annual PM2.5 NAAQS maintenance plan for the Macon Area (such approval being one of the CAA criteria for redesignation to attainment status). The maintenance plan is designed to help keep the Macon Area in attainment of the 1997 annual PM2.5 NAAQS through 2023. As explained in Section V, EPA is also proposing to approve that attainment can be maintained through 2024. The maintenance plan that EPA is proposing to approve today includes on-road MVEBs for the mobile source contribution of direct PM2.5 and NOX to the air quality problem in the Macon Area for transportation conformity purposes. EPA is proposing to approve (into the Georgia SIP) the 2023 MVEBs that are included as part of Georgia's maintenance plan for the 1997 annual PM2.5 NAAQS.
Further, EPA proposes to make the determination that the Macon Area is continuing to attain the 1997 annual PM2.5 NAAQS and that all other redesignation criteria have been met for the Macon Area. The bases for EPA's determination for the Area are discussed in greater detail below.
EPA is also notifying the public of the status of EPA's adequacy process for the 2023 MVEBs for PM2.5 and NOX for the Macon Area. Please see section VIII of this proposed rulemaking for further explanation of this process and for more details.
Today's notice of proposed rulemaking is in response to Georgia's June 21, 2012, SIP revision, which requests redesignation of the Macon Area to attainment for the 1997 annual PM2.5 NAAQS and addresses the specific issues summarized above and the necessary elements for redesignation described in section 107(d)(3)(E) of the CAA.
II. What is the background for EPA's proposed actions?
Fine particle pollution can be emitted directly or formed secondarily in the atmosphere. The main precursors of secondary PM2.5 are sulfur dioxide (SO2), NOX, ammonia, and volatile organic compounds (VOC). See, e.g., 72 FR 20586 at 20589. Sulfates are a type of secondary particle formed from SO2 emissions of power plants and industrial facilities. Nitrates, another common type of secondary particle, are formed from NOX emissions of power plants, automobiles, and other combustion sources.
On July 18, 1997, EPA promulgated the first air quality standards for PM2.5. EPA promulgated an annual standard at a level of 15 micrograms per cubic meter (μg/m ), based on a 3-year average of annual mean PM2.5 concentrations. In the same rulemaking, EPA promulgated a 24-hour standard of 65 μg/m , based on a 3-year average of the 98th percentile of 24-hour concentrations. On October 17, 2006, at 71 FR 61144, EPA retained the annual average NAAQS at 15 μg/m but revised the 24-hour NAAQS to 35 μg/m , based again on the 3-year average of the 98th percentile of 24-hour concentrations. Under EPA regulations at 40 CFR Part 50, the primary and secondary 1997 annual PM2.5 NAAQS are attained when the annual arithmetic mean concentration, as determined in accordance with 40 CFR Part 50, Appendix N, is less than or equal to 15.0 μg/m3 at all relevant monitoring sites in the subject area over a 3-year period.
On January 5, 2005, at 70 FR 944, and supplemented on April 14, 2005, at 70 FR 19844, EPA designated the Macon Area as nonattainment for the annual 1997 PM2.5 NAAQS. In that action, EPA defined the 1997 PM2.5 Macon Area to include Bibb County and a portion of Monroe County in Georgia. On November 13, 2009, at 74 FR 58688, EPA promulgated designations for the 24-hour standard established in 2006, designating the Macon Area as attainment for that NAAQS. That action clarified that the Macon Area was classified unclassifiable/attainment for the 1997 24-hour PM2.5 NAAQS. EPA did not promulgate designations for the Start Printed Page 68442006 annual PM2.5 NAAQS because that NAAQS was essentially identical to the 1997 annual PM2.5 NAAQS. Therefore, the Macon Area is designated nonattainment for the annual PM2.5 NAAQS promulgated in 1997, and today's action only addresses this designation.
All 1997 PM2.5 NAAQS areas were designated under subpart 1 of title I, part D, of the CAA. Subpart 1 contains the general requirements for nonattainment areas for any pollutant governed by a NAAQS and is less prescriptive than the other subparts of title I, part D. On April 25, 2007, at 72 FR 20586, EPA promulgated its Clean Air Fine Particle Implementation Rule, codified at 40 CFR Part 51, subpart Z, in which the Agency provided guidance for state and tribal plans to implement the 1997 PM2.5 annual NAAQS. This rule, at 40 CFR 51.1004(c), specifies some of the regulatory results of attaining the NAAQS, as discussed below. The D.C. Circuit remanded the Clean Air Fine Particle Implementation Rule and the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” final rule (73 FR 28321, May 16, 2008) (collectively, “1997 PM2.5 Implementation Rule”) to EPA on January 4, 2013, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013). The court found that EPA erred in implementing the 1997 PM2.5 NAAQS pursuant to the general implementation provisions of subpart 1 of Part D of Title I of the CAA, rather than the particulate-matter-specific provisions of subpart 4 of Part D of Title I. The effect of the court's ruling on this proposed redesignation action is discussed in detail in Section VI of this notice.
The 3-year ambient air quality data for 2007-2009 indicated no violations of the 1997 PM2.5 annual NAAQS for the Macon Area. As a result, on June 21, 2012, Georgia requested redesignation of the Macon Area to attainment for the 1997 annual PM2.5 NAAQS. The redesignation request includes three years of complete, quality-assured ambient air quality data for the 1997 annual PM2.5 NAAQS for 2007-2009, indicating that the 1997 PM2.5 NAAQS had been achieved for the Macon Area. Under the CAA, nonattainment areas may be redesignated to attainment if sufficient, complete, quality-assured data is available for the Administrator to determine that the area has attained the standard and the area meets the other CAA redesignation requirements in section 107(d)(3)(E). The Macon Area design value based on data from 2007 through 2009 is 13.5 ug/m3, which demonstrates attainment of the standard. While annual PM2.5 concentrations are dependent on a variety of conditions, the overall improvement in annual PM2.5 concentrations in the Macon Area can be attributed to the reduction of pollutant emissions, as discussed in more detail in section V of this proposed rulemaking.
III. What are the criteria for redesignation?
The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation provided the following criteria are met: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable federal air pollutant control regulations and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and (5) the state containing such area has met all requirements applicable to the area under section 110 and part D of title I of the CAA.
EPA has provided guidance on redesignation in the General Preamble for the Implementation of title I of the CAA Amendments of 1990 (April 16, 1992, 57 FR 13498, and supplemented on April 28, 1992, 57 FR 18070) and has provided further guidance on processing redesignation requests in the following documents:
1. “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (hereafter referred to as the “Calcagni Memorandum”);
2. “State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (CAA) Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992;
3. “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994; and
4. “Next Steps for Pending Redesignation Requests and State Implementation Plan Actions Affected by the Recent Court Decision Vacating the 2011 Cross-State Air Pollution Rule,” Memorandum from Gina McCarthy, Assistant Administrator, November 19, 2012.
IV. Why is EPA proposing these actions?
On June 21, 2012, GA EPD requested the redesignation of the Macon Area to attainment for the 1997 annual PM2.5 NAAQS. The Macon Area has attained the 1997 annual PM2.5 NAAQS, and EPA's preliminary evaluation indicates that the Area has met the requirements for redesignation set forth in section 107(d)(3)(E), including the maintenance plan requirements under section 175A of the CAA. EPA is also announcing the status of its adequacy determination for direct PM2.5 and NOX MVEBs for the Macon Area.
V. What is EPA's analysis of the request?
As stated above, in accordance with the CAA, EPA proposes in today's action to: (1) Redesignate the Macon Area to attainment for the 1997 annual PM2.5 NAAQS; and (2) approve into the Georgia SIP the 1997 annual PM2.5 NAAQS maintenance plan, including the associated MVEBs, for the Macon Area. Further, EPA proposes to make the determination that the Macon Area is continuing to attain the 1997 annual PM2.5 NAAQS and that all other redesignation criteria have been met for the Macon Area. The five redesignation criteria provided under CAA section 107(d)(3)(E) are discussed in greater detail for the Area in the following paragraphs of this section.
Criteria (1)—The Macon Area Has Attained the 1997 Annual PM2.5 NAAQS
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS (CAA section 107(d)(3)(E)(i)). EPA is proposing to determine that the Macon Area continues to attain the 1997 annual PM2.5 NAAQS since the September 8, 2011, attainment determination. For PM2.5, an area may be considered to be attaining the 1997 annual PM2.5 NAAQS if it meets the 1997 annual PM2.5 NAAQS, as determined in accordance with 40 CFR 50.13 and Appendix N of part 50, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain these NAAQS, the 3-year average of the annual arithmetic mean concentration, as determined in accordance with 40 CFR Part 50, Appendix N, must be less than or equal to 15.0 μg/m3 at all relevant monitoring sites in the subject area over a 3-year period. The relevant data must be collected and quality-assured in Start Printed Page 6845accordance with 40 CFR Part 58 and recorded in the EPA Air Quality System (AQS) database. The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment. On June 2, 2011, at 76 FR 31858, EPA determined that the Macon Area was attaining the 1997 annual PM2.5 NAAQS. For that action, EPA reviewed PM2.5 monitoring data from monitoring stations in the Macon Area for the 1997 annual PM2.5 NAAQS for 2007-2009. These data have been quality-assured and are recorded in AQS. On September 8, 2011, at 76 FR 55774, EPA finalized a determination that the Macon Area attained the 1997 annual PM2.5 NAAQS by the applicable attainment date of April 5, 2010. EPA has reviewed more recent data which indicates that the Macon Area continues to attain the 1997 annual PM2.5 NAAQS beyond the submitted 3-year attainment period of 2007-2009. The most recent year available with complete, quality-assured and certified ambient air monitoring is 2012, during which the Area recorded an annual average PM2.5 concentration of 13.1 μg/m3. EPA has also reviewed the available data in AQS for 2013 which, although not yet complete or certified, indicates the Area continues to attain the 1997 annual PM2.5 NAAQS. As summarized in Table 1 below, the 3-year average of annual arithmetic mean concentrations (i.e., design values) for the years 2009, 2010, 2011, and 2012 for the Macon Area are below the 1997 annual PM2.5 NAAQS.
|Location||County||Site ID||3-Year design values|
As discussed above, the design value for an area is the highest 3-year average annual mean concentration recorded at any monitor in the area for a 3-year period. Therefore, the 3-year design value for the period on which Georgia based its redesignation request (2007-2009) for the Macon Area is 13.5 μg/m3, which meets the NAAQS as described above. Additional details can be found in EPA's final clean data determination for the Macon Area (76 FR 31858, June 2, 2011). If the Area does not continue to attain before EPA finalizes the redesignation, EPA will not go forward with the redesignation. As discussed in more detail below, GA EPD has committed to continue monitoring in this Area in accordance with 40 CFR Part 58.
Criteria (5) —Georgia Has Met All Applicable Requirements Under Section 110 and Part D of the CAA; and Criteria (2)—Georgia Has a Fully Approved SIP Under Section 110(k) for the Macon Area
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the state has met all applicable requirements under section 110 and part D of title I of the CAA (CAA section 107(d)(3)(E)(v)) and that the state has a fully approved SIP under section 110(k) for the area (CAA section 107(d)(3)(E)(ii)). EPA proposes to find that Georgia has met all applicable SIP requirements for the Macon Area under section 110 of the CAA (general SIP requirements) for purposes of redesignation. Additionally, EPA proposes to find that the Georgia SIP satisfies the criterion that it meets applicable SIP requirements for purposes of redesignation under part D of title I of the CAA (requirements specific to 1997 annual PM2.5 nonattainment areas) in accordance with section 107(d)(3)(E)(v). Further, EPA proposes to determine that the SIP is fully approved with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii). In making these determinations, EPA ascertained which requirements are applicable to the Area and, if applicable, that they are fully approved under section 110(k). SIPs must be fully approved only with respect to requirements that were applicable prior to submittal of the complete redesignation request.
a. The Macon Area Has Met All Applicable Requirements Under Section 110 and Part D of the CAA
General SIP requirements. Section 110(a)(2) of title I of the CAA delineates the general requirements for a SIP, which include enforceable emissions limitations and other control measures, means, or techniques; provisions for the establishment and operation of appropriate devices necessary to collect data on ambient air quality; and programs to enforce the limitations. General SIP elements and requirements are delineated in section 110(a)(2) of title I, part A of the CAA. These requirements include, but are not limited to, the following: Submittal of a SIP that has been adopted by the state after reasonable public notice and hearing; provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; implementation of a source permit program; provisions for the implementation of part C requirements (Prevention of Significant Deterioration (PSD)) and provisions for the implementation of part D requirements (Nonattainment New Source Review (NNSR) permit programs); provisions for air pollution modeling; and provisions for public and local agency participation in planning and emission control rule development.
Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address the interstate transport of air pollutants. The section 110(a)(2)(D) requirements for a state are not linked with a particular nonattainment area's designation and classification in that state. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the state. Thus, EPA does not believe that the CAA's interstate transport requirements should be construed to be applicable requirements for purposes of redesignation. However, as discussed later in this notice, addressing pollutant transport from other states is an important part of an area's maintenance demonstration.Start Printed Page 6846
In addition, EPA believes that other section 110 elements that are neither connected with nonattainment plan submissions nor linked with an area's attainment status are not applicable requirements for purposes of redesignation. The area will still be subject to these requirements after the area is redesignated. The section 110 and part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This approach is consistent with EPA's existing policy on applicability of conformity and oxygenated fuels requirements, as well as with section 184 ozone transport requirements. See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 1997); Cleveland-Akron-Loraine, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati, Ohio, redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh, Pennsylvania, redesignation (66 FR 50399, October 19, 2001).
On June 15, 2012 (77 FR 35909) and February 20, 2013 (78 FR 11805), EPA proposed approval on a submittal from Georgia, addressing “infrastructure SIP” elements required under the CAA section 110(a)(2) for the 1997 annual PM2.5 NAAQS. However, these are statewide requirements that are not a consequence of the nonattainment status of the Macon Area. As stated above, EPA believes that section 110 elements not linked to an area's nonattainment status are not applicable for purposes of redesignation. Therefore, notwithstanding the fact that EPA has not yet completed rulemaking on Georgia's submittal for the PM2.5 infrastructure SIP elements of section 110(a)(2), EPA believes that it has approved all SIP elements that must be approved as a prerequisite for redesignating the Macon Area to attainment.
Title I, Part D, subpart 1 applicable SIP requirements. EPA proposes to determine that the Georgia SIP meets the applicable SIP requirements for the Macon Area for purposes of redesignation under part D of the CAA. Subpart 1 of part D, found in sections 172-176 of the CAA, sets forth the basic nonattainment requirements applicable to all nonattainment areas. All areas that were designated nonattainment for the 1997 annual PM2.5 NAAQS were designated under subpart 1 of the CAA. For purposes of evaluating this redesignation request, the applicable part D, subpart 1 SIP requirements are contained in sections 172(c)(1)-(9) and in section 176. A thorough discussion of the requirements contained in section 172 can be found in the General Preamble for Implementation of title I (57 FR 13498, April 16, 1992). Section VI of this proposed rulemaking notice discusses the relationship between this proposed redesignation action and subpart 4 of Part D.
Subpart 1 Section 172 Requirements. Section 172(c)(1) requires the plans for all nonattainment areas to provide for the implementation of all reasonably available control measures (RACM) as expeditiously as practicable and to provide for attainment of the NAAQS. EPA interprets this requirement to impose a duty on all nonattainment areas to consider all available control measures and to adopt and implement such measures as are reasonably available for implementation in each area as components of the area's attainment demonstration. Under section 172, states with nonattainment areas must submit plans providing for timely attainment and meeting a variety of other requirements. However, pursuant to 40 CFR 51.1004(c), EPA's final determination that the Macon Area is attaining the annual PM2.5 standard suspended Georgia's obligation to submit most of the attainment planning requirements that would otherwise apply. Specifically, the determination of attainment suspended Georgia's obligation to submit an attainment demonstration and planning SIPs to provide for reasonable further progress (RFP), RACM, and contingency measures under section 172(c)(9).
The General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992) also discusses the evaluation of section 172 requirements in the context of EPA's consideration of a redesignation request. The General Preamble sets forth EPA's view of applicable requirements for purposes of evaluating redesignation requests when an area is attaining a standard.
Because attainment has been reached in the Macon Area, no additional measures are needed to provide for attainment, and section 172(c)(1) requirements for an attainment demonstration and RACM are no longer considered to be applicable for purposes of redesignation as long as the Area continues to attain the standard until redesignation. See also 40 CFR 51.1004(c).
Pursuant to section 172(c)(2), nonattainment plans must contain provisions that require reasonable further progress toward attainment. This requirement is not relevant for purposes of redesignation because EPA has determined that the Macon Area has monitored attainment of the 1997 annual PM2.5 NAAQS. See General Preamble, 57 FR 13564. See also 40 CFR 51.1004(c). In addition, because the Macon Area has attained the 1997 annual PM2.5 NAAQS and is no longer subject to a RFP requirement, the requirement to submit the section 172(c)(9) contingency measures is not applicable for purposes of redesignation. Id.
Section 172(c)(3) requires submission and approval of a comprehensive, accurate, and current inventory of actual emissions. On March 2, 2012, EPA approved Georgia's 2002 base-year emissions inventory for the Macon Area as part of the SIP revision submitted by GA EPD to provide for attainment of the 1997 PM2.5 NAAQS in the Area. See 77 FR 12724. No comments, adverse or otherwise, were received on EPA's proposed approval of the emissions inventory for the Macon Area.
Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources to be allowed in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA has determined that, since PSD requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” Georgia has demonstrated that the Macon Area will be able to maintain the NAAQS without part D NSR in effect, and therefore, Georgia need not have fully approved part D NSR programs prior to approval of the redesignation request. Georgia's PSD program will become Start Printed Page 6847effective in the Macon Area upon redesignation to attainment.
Section 172(c)(6) requires the SIP to contain control measures necessary to provide for attainment of the NAAQS. Because attainment has been reached, no additional measures are needed to provide for attainment.
Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, EPA believes that the Georgia SIP meets the requirements of section 110(a)(2) applicable for purposes of redesignation.
176 Conformity Requirements. Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that federally-supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects that are developed, funded, or approved under title 23 of the United States Code (U.S.C.) and the Federal Transit Act (transportation conformity) as well as to all other federally-supported or funded projects (general conformity). State transportation conformity SIP revisions must be consistent with federal conformity regulations relating to consultation, enforcement and enforceability that EPA promulgated pursuant to its authority under the CAA.
EPA believes that it is reasonable to interpret the conformity SIP requirements as not applying for purposes of evaluating the redesignation request under section 107(d) because state conformity rules are still required after redesignation and federal conformity rules apply where state rules have been approved. See Wall v. EPA, 265 F.3d 426 (upholding this interpretation) (6th Cir. 2001); see also 60 FR 62748 (December 7, 1995, Tampa, Florida). Thus, the Macon Area has satisfied all applicable requirements for purposes of redesignation under section 110 and part D of the CAA.
b. The Macon Area Has a Fully Approved Applicable SIP Under Section 110(k) of the CAA
EPA has fully approved the applicable Georgia SIP for the Macon Area for the 1997 annual PM2.5 nonattainment area under section 110(k) of the CAA for all requirements applicable for purposes of redesignation. EPA may rely on prior SIP approvals in approving a redesignation request (see Calcagni Memorandum at p. 3; Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984 (6th Cir. 1998); Wall, 265 F.3d 426) plus any additional measures it may approve in conjunction with a redesignation action (see 68 FR 25426 (May 12, 2003) and citations therein). Following passage of the CAA of 1970, Georgia has adopted and submitted, and EPA has fully approved at various times, provisions addressing the various SIP elements applicable for the 1997 annual PM2.5 NAAQS in the Macon Area (e.g., 77 FR 35909, June 15, 2012).
As indicated above, EPA believes that the section 110 elements not connected with nonattainment plan submissions and not linked to an area's nonattainment status are not applicable requirements for purposes of redesignation. In addition, EPA believes that since the part D subpart 1 requirements did not become due prior to submission of the redesignation request, they are also not applicable requirements for purposes of redesignation. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004); 68 FR 25424, 25427 (May 12, 2003) (redesignation of the St. Louis-East St. Louis Area to attainment of the 1-hour ozone NAAQS). EPA has previously approved all part D subpart 1 requirements applicable for purposes of this redesignation. See Section VI of this notice for a discussion of the relationship between part D subpart 4 and this action.
Criteria (3) —The Air Quality Improvement in the Macon Area 1997 Annual PM 2.5 NAAQS Nonattainment Area Is Due to Permanent and Enforceable Reductions in Emissions Resulting From Implementation of the SIP and Applicable Federal Air Pollution Control Regulations and Other Permanent and Enforceable Reductions
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP and applicable federal air pollution control regulations and other permanent and enforceable reductions (CAA section 107(d)(3)(E)(iii)). EPA believes that Georgia has demonstrated that the observed air quality improvement in the Macon Area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, federal measures, and other state adopted measures.
Fine particulate matter, or PM2.5, refers to airborne particles less than or equal to 2.5 micrometers in diameter. Although treated as a single pollutant, fine particles come from many different sources and are composed of many different compounds. In the Macon Area, one of the largest components of PM2.5 is sulfate, which is formed through various chemical reactions from the precursor SO2. The other major component of PM2.5 is organic carbon, which originates predominantly from biogenic emission sources. Nitrate, which is formed from the precursor NOX, is also a component of PM2.5. Crustal materials from windblown dust and elemental carbon from combustion sources are less significant contributors to total PM2.5.
State and federal measures enacted in recent years have resulted in permanent emission reductions in particulate matter and its precursors. Most of these emission reductions are enforceable through regulations. A few non-regulatory measures also result in emission reductions. The federal measures that have been implemented include:
Tier 2 vehicle standards and low-sulfur gasoline. In addition to requiring NOX controls, the Tier 2 rule reduced the allowable sulfur content of gasoline to 30 parts per million (ppm) starting in January of 2006. Most gasoline sold prior to this had a sulfur content of approximately 300 ppm.
Heavy-duty gasoline and diesel highway vehicle standards and Ultra Low-Sulfur Diesel Rule. On October 6, 2000, the U.S. EPA promulgated a rule to reduce NOX and VOC emissions from heavy-duty gasoline and diesel highway vehicles that began to take effect in 2004. 65 FR 59896. A second phase of standards and testing procedures began in 2007 to reduce particulate matter from heavy-duty highway engines, and reduce highway diesel fuel sulfur content to 15 ppm since the sulfur in fuel damages high efficiency catalytic exhaust emission control devices. The total program should achieve a 90 percent reduction PM emissions and a 95 percent reduction in NOX emission for new engines using low-sulfur diesel, compared to existing engines using higher-content sulfur diesel.
Nonroad large spark-ignition engines and recreational engines standards. The nonroad spark-ignition and recreational engine standards, effective in July 2003, regulate NOX, hydrocarbons, and carbon monoxide from groups of previously unregulated nonroad engines. These engine standards apply to large spark-Start Printed Page 6848ignition engines (e.g., forklifts and airport ground service equipment), recreational vehicles (e.g., off-highway motorcycles and all-terrain-vehicles), and recreational marine diesel engines sold in the United States and imported after the effective date of these standards.
When all of the nonroad spark-ignition and recreational engine standards are fully implemented, an overall 72 percent reduction in hydrocarbons, 80 percent reduction in NOX, and 56 percent reduction in carbon monoxide emissions are expected by 2020. These controls will help reduce ambient concentrations of ozone, carbon monoxide, and fine particulate matter.
Large nonroad diesel engine standards. Promulgated in 2004, this rule is being phased in between 2008 and 2014. This rule will reduce sulfur content in nonroad diesel fuel and, when fully implemented, will reduce NOX and direct PM2.5 emissions by over 90 percent from these engines.
Reciprocating Internal Combustion Engine standard. Promulgated in 2010, this rule regulates emissions of air toxics from existing diesel powered stationary reciprocating internal combustion engines that meet specific site rating, age, and size criteria. When all of the reciprocating internal combustion engine standards are fully implemented in 2013, EPA estimates that PM2.5 emissions from these engines will be reduced by approximately 2,800 tons per year (tpy).
Category 3 Marine Diesel Engine standard. Promulgated in 2010, this rule establishes more stringent exhaust emission standards for new large marine diesel engines with per cylinder displacement at or above 30 liters (commonly referred to as Category 3 compression-ignition marine engines) as part of a coordinated strategy to address emissions from all ships that affect U.S. air quality. Near-term standards for newly built engines will apply beginning in 2011, and long-term standards requiring an 80 percent reduction in NOX emissions will begin in 2016.
NOXSIP Call. On October 27, 1998 (63 FR 57356), EPA issued a NOX SIP Call requiring the District of Columbia and 22 states to reduce emissions of NOX. Affected states were required to comply with Phase I of the SIP Call beginning in 2004 and Phase II beginning in 2007. Emission reductions resulting from regulations developed in response to the NOX SIP Call are permanent and enforceable.
CAIR and CSAPR. EPA recently promulgated the Cross-State Air Pollution Rule (CSAPR) (76 FR 48208, August 8, 2011), to replace the Clean Air Interstate (CAIR), which has been in place since 2005. See 76 FR 59517. CAIR requires significant reductions in emissions of SO2 and NOX from electric generating units (EGUs) to limit the interstate transport of these pollutants and the ozone and fine particulate matter they form in the atmosphere. See 76 FR 70093. The D.C. Circuit initially vacated CAIR, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), but ultimately remanded the rule to EPA without vacatur to preserve the environmental benefits provided by CAIR, North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008).
On December 30, 2011, the D.C. Circuit issued an order addressing the status of CSAPR and CAIR in response to motions filed by numerous parties seeking a stay of CSAPR pending judicial review. In that order, the court stayed CSAPR pending resolution of the petitions for review of that rule in EME Homer City Generation, L.P. v. EPA (No. 11-1302 and consolidated cases). The court also indicated that EPA was expected to continue to administer CAIR in the interim until judicial review of CSAPR was completed.
On August 21, 2012, the D.C. Circuit issued a decision to vacate CSAPR. In that decision, it also ordered EPA to continue administering CAIR “pending . . . development of a valid replacement.” EME Homer City, 696 F.3d at 38. The D.C. Circuit denied all petitions for rehearing on January 24, 2013. EPA and other parties have filed petitions for certiorari to the U.S. Supreme Court on March 29, 2013, to review the D.C. Circuit's decision in EME Homer City, and on June 24, 2013, the U.S. Supreme Court granted the United States' petition asking the Court to review the D.C. Circuit's decision on CSAPR. Nonetheless, EPA intends to continue to act in accordance with the EME Homer City opinion.
In light of these unique circumstances and for the reasons explained below, EPA proposes to approve the redesignation request and the related SIP revision for Bibb and a portion of Monroe County in Georgia, including Georgia's plan for maintaining attainment of the 1997 annual PM2.5 NAAQS in the Macon Area. To the extent that attainment is due to emission reductions associated with CAIR, EPA is here determining that those reductions are sufficiently permanent and enforceable for purposes of CAA sections 107(d)(3)(E)(iii) and 175A. The air quality modeling analysis conducted for CSAPR demonstrates that the Macon Area would be able to maintain the 1997 annual PM2.5 NAAQS even in the absence of either CAIR or CSAPR. See “Air Quality Modeling Final Rule Technical Support Document,” App. B, B-39. This modeling is available in the docket for this proposed redesignation action. Nothing in the D.C. Circuit's August 2012 decision disturbs or calls into question that conclusion or the validity of the air quality analysis on which it is based.
In addition, as directed by the D.C. Circuit, CAIR remains in place and enforceable until substituted by a valid replacement rule. EPA approved a modification to Georgia's SIP on October 9, 2007, that addressed the requirements of CAIR for the purpose of reducing SO2 and NOX emissions (see 72 FR 57202), and Georgia's SIP submittal for redesignation request lists CAIR as a control measure. CAIR was thus in place and getting emission reductions when the Macon Area began monitoring attainment of the 1997 Annual PM2.5 NAAQS. The quality-assured, certified monitoring data used to demonstrate the area's attainment of the 1997 Annual PM2.5 NAAQS by the April 5, 2010 attainment deadline was also impacted by CAIR.
To the extent that Georgia is relying on CAIR in its maintenance plan, the recent directive from the D.C. Circuit in EME Homer City ensures that the reductions associated with CAIR will be permanent and enforceable for the necessary time period. EPA has been ordered by the Court to develop a new rule to address interstate transport to replace CSAPR and the opinion makes clear that after promulgating that new rule EPA must provide states an opportunity to draft and submit SIPs to implement that rule. Thus, CAIR will remain in place until EPA has promulgated a final rule through a notice-and-comment rulemaking process, States have had an opportunity to draft and submit SIPs, EPA has reviewed the SIPs to determine if they can be approved, and EPA has taken action on the SIPs, including promulgating a FIP if appropriate. The Court's clear instruction to EPA that it must continue to administer CAIR until a valid replacement exists provides an additional backstop: By definition, any rule that replaces CAIR and meets the Court's direction would require upwind states to have SIPs that eliminate significant contributions to downwind nonattainment and prevent interference with maintenance in downwind areas.
Further, in vacating CSAPR and requiring EPA to continue administering CAIR, the D.C. Circuit emphasized that the consequences of vacating CAIR Start Printed Page 6849“might be more severe now in light of the reliance interests accumulated over the intervening four years.” EME Homer City, 696 F.3d at 38. The accumulated reliance interests include the interests of states who reasonably assumed they could rely on reductions associated with CAIR which brought certain nonattainment areas into attainment with the NAAQS. If EPA were prevented from relying on reductions associated with CAIR in redesignation actions, states would be forced to impose additional, redundant reductions on top of those achieved by CAIR. EPA believes this is precisely the type of irrational result the court sought to avoid by ordering EPA to continue administering CAIR. For these reasons also, EPA believes it is appropriate to allow states to rely on CAIR, and the existing emissions reductions achieved by CAIR, as sufficiently permanent and enforceable for purposes such as redesignation. Following promulgation of the replacement rule, EPA will review SIPs as appropriate to identify whether there are any issues that need to be addressed.
Criteria (4)—Macon Area Has a Fully Approved Maintenance Plan Pursuant to Section 175A of the CAA
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA (CAA section 107(d)(3)(E)(iv)). In conjunction with its request to redesignate the Macon Area to attainment for the 1997 annual PM2.5 NAAQS, GA EPD submitted a SIP revision to provide for the maintenance of the 1997 annual PM2.5 NAAQS for at least 10 years after the effective date of redesignation to attainment. EPA believes that this maintenance plan meets the requirements for approval under section 175A of the CAA.
a. What is required in a maintenance plan?
Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, GA EPD must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the 10 years following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain such contingency measures, as EPA deems necessary, to assure prompt correction of any future 1997 annual PM2.5 NAAQS violations. The Calcagni Memorandum provides further guidance on the content of a maintenance plan, explaining that a maintenance plan should address five requirements: the attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. As is discussed below, EPA finds that GA EPD's maintenance plan includes all the necessary components and is thus proposing to approve it as a revision to the Georgia SIP.
b. Attainment Emissions Inventory
The Macon Area attained the 1997 annual PM2.5 NAAQS based on monitoring data for the 3-year period from 2007-2009. GA EPD has selected 2007 as the attainment emission inventory year. The attainment inventory identifies a level of emissions in the Area that is sufficient to attain the 1997 annual PM2.5 NAAQS. GA EPD began development of the attainment inventory by first generating a baseline emissions inventory for the Macon Area. As noted above, the year 2007 was chosen as the base year for developing a comprehensive emissions inventory for direct PM2.5 and the PM2.5 precursors SO2 and NOX. Emissions projections to support maintenance through 2023 have been prepared for the years 2017 and 2023. In addition, emissions have been calculated by interpolation for the years 2014 and 2020. The projected inventory included with the maintenance plan estimates emissions forward to 2023, which satisfies the 10-year interval required in section 175(A) of the CAA.
The emissions inventories are composed of four major types of sources: Point, area, on-road mobile, and non-road mobile. The 2007 inventory, with the exception of on-road emissions, was prepared for Georgia by the contractor for the Southeastern Modeling, Analysis, and Planning (SEMAP) project. Under the SEMAP project, emissions estimates are reported by county and source classification code. The SEMAP emissions inventories were developed using data from a number of sources, including state and local agencies and EPA's National Emissions Inventory (NEI). The Georgia Department of Transportation developed the 2007 inventory of on-road mobile emissions.
The 2007 SO2, NOX, and PM2.5 emissions for the Macon Area, as well as the emissions for other years, were developed consistent with EPA guidance and are summarized in Table 2 through 6 of the following subsection discussing the maintenance demonstration.
Section 175A requires a state seeking redesignation to attainment to submit a SIP revision to provide for the maintenance of the NAAQS in the Area “for at least 10 years after the redesignation.” EPA has interpreted this as a showing of maintenance “for a period of ten years following redesignation.” Calcagni Memorandum, p. 9. Where the emissions inventory method of showing maintenance is used, the purpose is to show that emissions during the maintenance period will not increase over the attainment year inventory. Calcagni Memorandum, pp. 9-10.
As discussed in detail in the subsection below, Georgia's maintenance plan submission expressly documents that the Area's emissions inventories will remain below the attainment year inventories through 2023. Projected emissions inventory levels in 2023 are well below the attainment year inventory levels, and it is highly improbable that they will suddenly increase and exceed attainment year inventory levels in 2024. In addition, for the reasons set forth below, EPA believes that the Georgia's submission, in conjunction with additional supporting information, further demonstrates that the Area will continue to maintain the 1997 Annual PM2.5 NAAQS at least through 2024. Thus, if EPA finalizes its proposed approval of the redesignation request and maintenance plans in 2014, the approval will be based upon this showing, in accordance with section 175A, and EPA's analysis described herein, that the Georgia's maintenance plan provides for maintenance for at least ten years after redesignation.
c. Maintenance Demonstration
The June 21, 2012, final submittal includes a maintenance plan for the Macon Area. This demonstration:
(i) Shows compliance with and maintenance of the annual PM2.5 standard by providing information to support the demonstration that current and future emissions of SO2, NOX, and PM2.5 remain at or below 2007 emissions levels.
(ii) Uses 2007 as the attainment year and includes future emissions inventory projections for 2017 and 2023.
(iii) Identifies an “out year” at least 10 years after EPA review and potential approval of the maintenance plan. Per 40 CFR part 93, NOX and PM2.5 MVEBs were established for the last year (2023) of the maintenance plan.
(iv) Provides, as shown in Tables 2, 3, 4, 5, and 6 below, the actual and projected Start Printed Page 6850emissions inventories, in tpy, for the Macon Area.
The State's submittal credits Georgia Rule 391-3-1-.02(2)(sss) as requiring flue gas desulfurization (FGD) and selective catalytic reduction (SCR) controls on the majority of coal-fired electric generating units (EGUs) in the State. The submittal also credits Georgia Rule 391-3-1-.02(2)(uuu) as requiring a 95 percent reduction in SO2 emissions from the majority of Georgia's coal-fired EGUs, with the requirement being phased in from 2010 through 2016. Within the Macon Area, this rule requires a 95 percent reduction of SO2 emissions from all four EGUs at Plant Scherer, which is being phased in on individual units between 2011 and 2015. The rule also requires SO2 emission reductions from other coal-fired EGUs in Georgia.
EPA has not approved Georgia Rules 391-3-1-.02(2)(sss) and 391-3-1-.02(2)(uuu) into Georgia's SIP, and therefore, these rules are not federally enforceable. However, CAIR was one measure that led to air quality improvement in the Macon Area. As discussed above, EPA is interpreting CAA section 107(d)(3)(E)(iii)'s requirement that emission reductions be due to permanent and federally enforceable measures to include CAIR, because of the D.C. Circuit's directive to leave CAIR in place until it is replaced by a new rule. Although modeling completed as part of the CSAPR rulemaking showed that the Area would continue to maintain the standard even in the absence of CAIR or CSAPR, to the extent that the Area's maintenance of the standard relies on CAIR, EPA is proposing to find CAIR may be relied upon under CAA section 175A as well. Unlike the state-only rules discussed above, CAIR was approved into Georgia's SIP. Although the state-only rules have more specific unit control requirements than the provisions of CAIR, the State implemented them in response to CAIR and they require emission reductions in NOX and SO2 consistent with CAIR's original schedule starting in 2009. Since the controls are already in the process of being installed to comply with both CAIR and these state-only rules, EPA regards the emission estimates based on the installation and operation of these controls to be both an accurate projection of how CAIR will continue to be implemented in the Macon Area and an appropriate basis upon which to project the emission inventory.
As reflected in Table 6, future emissions for the relevant pollutants and precursors are expected to be below the “attainment level” emissions in 2007, thus illustrating that the Macon Area is expected to continue to attain the 1997 annual PM2.5 NAAQS through 2023. In situations such as this where local emissions are the primary contributor to nonattainment, if the future projected emissions in the nonattainment area remain at or below the baseline emissions in the nonattainment area, then the 1997 annual PM2.5 NAAQS should not be violated in the future.
A maintenance plan requires the state to show that projected future year emissions will not exceed the level of emissions which led the Area to attain the NAAQS. Georgia has projected emissions as described previously and determined that emissions in the Macon Area will remain below those in the attainment year inventory for the duration of the maintenance plan.
As noted above, EPA believes that several pertinent factors demonstrate that the Macon Area will continue to maintain the 1997 Annual PM2.5 NAAQS at least through the year 2024. These include the circumstances that (1) all of the state and federal regulatory requirements that enabled the Area to attain the NAAQS will continue to be in effect and enforceable after the 10-year maintenance period; (2) the most recent complete, quality-assured and certified annual PM2.5 design value (for the period 2010 to 2012) for the Area of 13.1 μg/m3 is well below the standard of 15.0 μg/m3; (3) as discussed in detail below, EPA is proposing in this action to approve Georgia's determination that the direct PM2.5 and NOX contribution from motor vehicle emissions for the Area and thus does not expect such emissions to contribute significantly to future ambient PM2.5 levels; and (4) as noted above, several of the largest sources in the Area have been required by permanent and enforceable consent decrees to install controls that achieve reductions in SO2 and NOX emissions as well as reductions in direct PM2.5 emissions. Therefore, EPA expects the projected downward trend in pollutant emissions in the Macon Area from the 2007 attainment year through the 2023 maintenance year, as shown in Table 6 above, to continue for at least the one additional year past 2023.
d. Monitoring Network
There are currently two monitors measuring PM2.5 in the Macon Area (Macon Allied Chemical and Macon Forestry in Bibb County). GA EPD has committed to continue operation of the monitors in the Macon Area in compliance with 40 CFR part 58 and have thus addressed the requirement for monitoring. EPA approved Georgia's 2012 monitoring plan on October 16, 2012.
e. Verification of Continued Attainment
GA EPD has the legal authority to enforce and implement the requirements of the Macon Area 1997 annual PM2.5 maintenance plan. This includes the authority to adopt, implement and enforce any subsequent emissions control contingency measures determined to be necessary to correct future PM2.5 attainment problems.
GA EPD will track the progress of the maintenance plan by performing future reviews of triennial emission inventories for the Macon Area as required in the Air Emissions Reporting Rule (AERR) and Consolidated Emissions Reporting Rule (CERR). For these periodic inventories, GA EPD will review the assumptions made for the purpose of the maintenance demonstration concerning projected growth of activity levels. If any of these assumptions appear to have changed substantially, then GA EPD will re-project emissions for the Macon Area.
f. Contingency Measures in the Maintenance Plan
Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation, and a time limit for action by GA EPD. A state should also identify specific indicators to be used to determine when the contingency measures need to be implemented. The maintenance plan must include a requirement that a state will implement all measures with respect to control of the pollutant that were contained in the SIP before redesignation of the area to attainment in accordance with section 175A(d).
The contingency plan included in the submittal includes a triggering mechanism to determine when contingency measures are needed and a process of developing and implementing appropriate control measures. GA EPD will use actual ambient monitoring data to determine whether a trigger event has occurred and when contingency measures should be implemented.
Georgia has identified a Tier 1 trigger as occurring when any of the following conditions occurs, as described in the State's submittal for the Macon Area:
- The previous calendar year's annual mean PM2.5 concentration exceeds the NAAQS by 1.5 ug/m3 or more;
- The annual mean PM2.5 concentration in each of the previous two consecutive calendar years exceeds the NAAQS by 0.5 ug/m3 or more;
- The total maintenance area SO2 emissions in the most recent NEI exceeds the corresponding attainment-year inventory by more than 10.0 percent;
- The total maintenance area PM2.5 emissions in the most recent NEI exceed the corresponding attainment-year inventory by more than 30.0 percent.
GA EPD will evaluate a Tier I condition, if it occurs, as expeditiously as practicable to determine the causes of the ambient PM2.5 or emissions inventory increase and to determine if a Tier II condition is likely to occur. A Tier II trigger will be activated when any violation of the annual PM2.5 NAAQS at any federal reference method monitor in the Macon maintenance area is recorded, based on quality-assured monitoring data. In this event, GA EPD will conduct a comprehensive study to determine the cause of the ambient PM2.5 increase and to determine if the increase is likely to continue and will implement any required measures as expeditiously as practicable, taking into consideration the ease of implementation and the technical and economic feasibility of selected measures.
The comprehensive study will be completed and submitted to EPA as expeditiously as practical but no later than nine months after the Tier I or Tier II trigger is activated, and the appropriate corrective measures will be adopted and implemented within 18 to 24 months after the trigger occurs. If the study determines that additional measures are required, the State will adopt rules no later than 18 months following the date that the trigger is activated. The comprehensive measures will be selected from the following types of measures or from any other measure deemed appropriate and effective at the time the selection is made by GA EPD:
- RACM for sources of SO2 and PM2.5;
- Reasonably Available Control Technologies (RACT) for point sources of SO2 and PM2.5;
- Expansion of RACM/RACT to areas of transport within the State;Start Printed Page 6852
- Mobile source measures; and
- Additional SO2 and/or PM2.5 reduction measures yet to be identified.
In addition to the triggers indicated above, Georgia will monitor regional emissions through the CERR and AERR and compare them to the projected inventories and the attainment year inventory. In the June 21, 2012, submittal, the State acknowledges that the contingency plan requires the implementation of all measures contained in the SIP for the Area prior to redesignation. The State also notes that these measures are currently in effect and may be evaluated by the State to determine if they are adequate or up-to-date.
EPA has concluded that the maintenance plan adequately addresses the five basic components of a maintenance plan: attainment emission inventory, maintenance demonstration, monitoring network, verification of continued attainment, and a contingency plan. Therefore, the maintenance plan SIP revision submitted by GA EPD for the Macon Area meets the requirements of section 175A of the CAA and is approvable.
VI. What is the effect of the January 4, 2013, D.C. Circuit decision regarding PM2.5 implementation under subpart 4?
As discussed in Section I of this action, the D.C. Circuit remanded the 1997 PM2.5 Implementation Rule to EPA on January 4, 2013, in Natural Resources Defense Council v. EPA, 706 F.3d 428. The court found that EPA erred in implementing the 1997 PM2.5 NAAQS pursuant to the general implementation provisions of subpart 1 of Part D of Title I of the CAA, rather than the particulate matter-specific provisions of subpart 4 of Part D of Title I.
b. Proposal on This Issue
In this portion of the proposed redesignation, EPA addresses the effect of the court's January 4, 2013, ruling on the proposed redesignation. As explained below, EPA is proposing to determine that the Court's January 4, 2013, decision does not prevent EPA from redesignating the Macon Area to attainment. Even in light of the Court's decision, redesignation for this area is appropriate under the CAA and EPA's longstanding interpretations of the CAA's provisions regarding redesignation. EPA first explains its longstanding interpretation that requirements that are imposed, or that become due, after a complete redesignation request is submitted for an area that is attaining the standard, are not applicable for purposes of evaluating a redesignation request. Second, EPA then shows that, even if EPA applies the subpart 4 requirements to the Macon Area redesignation request and disregards the provisions of its 1997 PM2.5 Implementation Rule recently remanded by the Court, the State's request for redesignation of this area still qualifies for approval. EPA's discussion takes into account the effect of the Court's ruling on the area's maintenance plan, which EPA views as approvable when subpart 4 requirements are considered.
c. Applicable Requirements for the Purpose of Evaluating the Redesignation Request
With respect to the 1997 PM2.5 Implementation Rule, the Court's January 4, 2013, ruling rejected EPA's reasons for implementing the PM2.5 NAAQS solely in accordance with the provisions of subpart 1, and remanded that matter to EPA so that it could address implementation of the 1997 PM2.5 NAAQS under subpart 4 of Part D of the CAA, in addition to subpart 1. For the purposes of evaluating the Georgia's redesignation request for the area, to the extent that implementation under subpart 4 would impose additional requirements for areas designated nonattainment, EPA believes that those requirements are not “applicable” for the purposes of CAA section 107(d)(3)(E), and thus EPA is not required to consider subpart 4 requirements with respect to the Macon Area of redesignation. Under its longstanding interpretation of the CAA, EPA has interpreted section 107(d)(3)(E) to mean, as a threshold matter, that the part D provisions which are “applicable” and which must be approved in order for EPA to redesignate an area include only those which came due prior to a state's submittal of a complete redesignation request. See “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (Calcagni memorandum). See also “State Implementation Plan (SIP) Requirements for Areas Submitting Requests for the plan and Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) on or after November 15, 1992,” Memorandum from Michael Shapiro, Acting Assistant Administrator, Air and Radiation, September 17, 1993 (Shapiro memorandum); Final Redesignation of Detroit-Ann Arbor, (60 FR 12459, 12465-66, March 7, 1995); Final Redesignation of St. Louis, Missouri, (68 FR 25418, 25424-27, May 12, 2003); Sierra Club v. EPA, 375 F.3d 537, 541 (7th Cir. 2004) (upholding EPA's redesignation rulemaking applying this interpretation and expressly rejecting Sierra Club's view that the meaning of “applicable” under the statute is “whatever should have been in the plan at the time of attainment rather than whatever actually was in already implemented or due at the time of attainment”). In this case, at the time that Georgia submitted its redesignation request, requirements under subpart 4 were not due, and indeed, were not yet known to apply.
EPA's view that, for purposes of evaluating the Macon Area redesignation, the subpart 4 requirements were not due at the time the State submitted the redesignation request is in keeping with the EPA's interpretation of subpart 2 requirements for subpart 1 ozone areas redesignated subsequent to the D.C. Circuit's decision in South Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006). In South Coast, the Court found that EPA was not permitted to implement the 1997 8-hour ozone standard solely under subpart 1, and held that EPA was required under the statute to implement the standard under the ozone-specific requirements of subpart 2 as well. Subsequent to the South Coast decision, in evaluating and acting upon redesignation requests for the 1997 8-hour ozone standard that were submitted to EPA for areas under subpart 1, EPA applied its longstanding interpretation of the CAA that “applicable requirements,” for purposes of evaluating a redesignation, are those that had been due at the time the redesignation request was submitted. See, e.g., Proposed Redesignation of Manitowoc County and Door County Nonattainment Areas (75 FR 22047, 22050, April 27, 2010). In those actions, EPA therefore did not consider subpart 2 requirements to be “applicable” for the purposes of evaluating whether the area should be redesignated under section 107(d)(3)(E).
EPA's interpretation derives from the provisions of CAA Section 107(d)(3). Section 107(d)(3)(E)(v) states that, for an area to be redesignated, a state must meet “all requirements `applicable' to the area under section 110 and part D.” Section 107(d)(3)(E)(ii) provides that the EPA must have fully approved the Start Printed Page 6853“applicable” SIP for the area seeking redesignation. These two sections read together support EPA's interpretation of “applicable” as only those requirements that came due prior to submission of a complete redesignation request. First, holding states to an ongoing obligation to adopt new CAA requirements that arose after the state submitted its redesignation request, in order to be redesignated, would make it problematic or impossible for EPA to act on redesignation requests in accordance with the 18-month deadline Congress set for EPA action in section 107(d)(3)(D). If “applicable requirements” were interpreted to be a continuing flow of requirements with no reasonable limitation, states, after submitting a redesignation request, would be forced continuously to make additional SIP submissions that in turn would require EPA to undertake further notice-and-comment rulemaking actions to act on those submissions. This would create a regime of unceasing rulemaking that would delay action on the redesignation request beyond the 18-month timeframe provided by the Act for this purpose.
Second, a fundamental premise for redesignating a nonattainment area to attainment is that the area has attained the relevant NAAQS due to emission reductions from existing controls. Thus, an area for which a redesignation request has been submitted would have already attained the NAAQS as a result of satisfying statutory requirements that came due prior to the submission of the request. Absent a showing that unadopted and unimplemented requirements are necessary for future maintenance, it is reasonable to view the requirements applicable for purposes of evaluating the redesignation request as including only those SIP requirements that have already come due. These are the requirements that led to attainment of the NAAQS. To require, for redesignation approval, that a state also satisfy additional SIP requirements coming due after the state submits its complete redesignation request, and while EPA is reviewing it, would compel the state to do more than is necessary to attain the NAAQS, without a showing that the additional requirements are necessary for maintenance.
In the context of this redesignation, the timing and nature of the Court's January 4, 2013, decision in NRDC v. EPA compound the consequences of imposing requirements that come due after the redesignation request is submitted. The State submitted its redesignation request on June 21, 2012, but the Court did not issue its decision remanding EPA's 1997 PM2.5 implementation rule concerning the applicability of the provisions of subpart 4 until January 2013.
To require the State's fully-completed and pending redesignation request to comply now with requirements of subpart 4 that the Court announced only in January 2013 would be to give retroactive effect to such requirements when the State had no notice that it was required to meet them. The D.C. Circuit recognized the inequity of this type of retroactive impact in Sierra Club v. Whitman, 285 F.3d 63 (D.C. Cir. 2002), where it upheld the District Court's ruling refusing to make retroactive EPA's determination that the St. Louis area did not meet its attainment deadline. In that case, petitioners urged the Court to make EPA's nonattainment determination effective as of the date that the statute required, rather than the later date on which EPA actually made the determination. The Court rejected this view, stating that applying it “would likely impose large costs on States, which would face fines and suits for not implementing air pollution prevention plans . . . even though they were not on notice at the time.” Id. at 68. Similarly, it would be unreasonable to penalize the State of Georgia by rejecting its redesignation request for an area that is already attaining the 1997 PM2.5 standard and that met all applicable requirements known to be in effect at the time of the request. For EPA now to reject the redesignation request solely because the state did not expressly address subpart 4 requirements of which it had no notice would inflict the same unfairness condemned by the Court in Sierra Club v. Whitman.
d. Subpart 4 Requirements and the Macon Area Redesignation Request
Even if EPA were to take the view that the Court's January 4, 2013, decision requires that, in the context of pending redesignations, subpart 4 requirements were due and in effect at the time the State submitted its redesignation request, EPA proposes to determine that the Macon Area still qualifies for redesignation to attainment. As explained below, EPA believes that the redesignation request for the Macon Area, though not expressed in terms of subpart 4 requirements, substantively meets the requirements of that subpart for purposes of redesignating the area to attainment.
With respect to evaluating the relevant substantive requirements of subpart 4 for purposes of redesignating the Macon Area, EPA notes that subpart 4 incorporates components of subpart 1 of part D, which contains general air quality planning requirements for areas designated as nonattainment. See Section 172(c). Subpart 4 itself contains specific planning and scheduling requirements for PM10  nonattainment areas, and under the Court's January 4, 2013, decision in NRDC v. EPA, these same statutory requirements also apply for PM2.5 nonattainment areas. EPA has longstanding general guidance that interprets the 1990 amendments to the CAA, making recommendations to states for meeting the statutory requirements for SIPs for nonattainment areas. See, “State Implementation Plans; General Preamble for the Implementation of Title I of the Clear Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992) (the “General Preamble”). In the General Preamble, EPA discussed the relationship of subpart 1 and subpart 4 SIP requirements and pointed out that subpart 1 requirements were to an extent “subsumed by, or integrally related to, the more specific PM-10 requirements.” 57 FR 13538 (April 16, 1992). The subpart 1 requirements include, among other things, provisions for attainment demonstrations, reasonably available control measures (RACM), reasonable further progress (RFP), emissions inventories, and contingency measures.
For the purposes of this redesignation, in order to identify any additional requirements which would apply under subpart 4, we are considering the Macon Area to be a “moderate” PM2.5 nonattainment area. Under section 188 of the CAA, all areas designated nonattainment areas under subpart 4 would initially be classified by operation of law as “moderate” nonattainment areas and would remain moderate nonattainment areas unless and until EPA reclassifies the area as a “serious” nonattainment area. Accordingly, EPA believes that it is appropriate to limit the evaluation of the potential impact of subpart 4 requirements to those that would be applicable to moderate nonattainment areas. Sections 189(a) and (c) of subpart 4 apply to moderate nonattainment areas and include the following: (1) An approved permit program for Start Printed Page 6854construction of new and modified major stationary sources (section 189(a)(1)(A)); (2) an attainment demonstration (section 189(a)(1)(B)); (3) provisions for RACM (section 189(a)(1)(C)); and (4) quantitative milestones demonstrating RFP toward attainment by the applicable attainment date (section 189(c)).
The permit requirements of subpart 4, as contained in section 189(a)(1)(A), refer to and apply the subpart 1 permit provisions requirements of sections 172 and 173 to PM10, without adding to them. Consequently, EPA believes that section 189(a)(1)(A) does not itself impose for redesignation purposes any additional requirements for moderate areas beyond those contained in subpart 1. In any event, in the context of redesignation, EPA has long relied on the interpretation that a fully approved nonattainment new source review program is not considered an applicable requirement for redesignation, provided the area can maintain the standard with a PSD program after redesignation. A detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” See also rulemakings for Detroit, Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); and Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996).
With respect to the specific attainment planning requirements under subpart 4, when EPA evaluates a redesignation request under either subpart 1 and/or 4, any area that is attaining the PM2.5 standard is viewed as having satisfied the attainment planning requirements for these subparts. For redesignations, EPA has for many years interpreted attainment-linked requirements as not applicable for areas attaining the standard. In the General Preamble for the Implementation of title I, EPA stated that:
The requirements for RFP will not apply in evaluating a request for redesignation to attainment since, at a minimum, the air quality data for the area must show that the area has already attained. Showing that the State will make RFP towards attainment will, therefore, have no eaning at that point.
“General Preamble for the Interpretation of Title I of the Clean Air Act Amendments of 1990” (57 FR 13498, 13564, April 16, 1992).
The General Preamble also explained that
[t]he section 172(c)(9) requirements are directed at ensuring RFP and attainment by the applicable date. These requirements no longer apply when an area has attained the standard and is eligible for redesignation. Furthermore, section 175A for maintenance plans . . . provides specific requirements for contingency measures that effectively supersede the requirements of section 172(c)(9) for these areas. Id.
EPA similarly stated in its 1992 Calcagni memorandum that, “The requirements for reasonable further progress and other measures needed for attainment will not apply for redesignations because they only have meaning for areas not attaining the standard.”
It is evident that even if we were to consider the Court's January 4, 2013, decision in NRDC v. EPA to mean that attainment-related requirements specific to subpart 4 should be imposed retroactively  and thus are now past due, those requirements do not apply to an area that is attaining the 1997 PM2.5 standard for the purpose of evaluating a pending request to redesignate the area to attainment. EPA has consistently enunciated this interpretation of applicable requirements under section 107(d)(3)(E) since the General Preamble was published more than twenty years ago. Courts have recognized the scope of EPA's authority to interpret “applicable requirements” in the redesignation context. See Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004).
Moreover, even outside the context of redesignations, EPA has viewed the obligations to submit attainment-related SIP planning requirements of subpart 4 as inapplicable for areas that EPA determines are attaining the standard. EPA's prior “Clean Data Policy” rulemakings for the PM10 NAAQS, also governed by the requirements of subpart 4, explain EPA's reasoning. They describe the effects of a determination of attainment on the attainment-related SIP planning requirements of subpart 4. See “Determination of Attainment for Coso Junction Nonattainment Area,” (75 FR 27944, May 19, 2010). See also Coso Junction proposed PM10 redesignation, (75 FR 36023, 36027, June 24, 2010); Proposed and Final Determinations of Attainment for San Joaquin Nonattainment Area (71 FR 40952, 40954-55, July 19, 2006; and 71 FR 63641, 63643-47 October 30, 2006). In short, EPA in this context has also long concluded that to require states to meet superfluous SIP planning requirements is not necessary and not required by the CAA, so long as those areas continue to attain the relevant NAAQS.
Elsewhere in this notice, EPA proposes to determine that the area has attained the 1997 PM2.5 standard. Under its longstanding interpretation, EPA is proposing to determine here that the area meets the attainment-related plan requirements of subparts 1 and 4.
Thus, EPA is proposing to conclude that the requirements to submit an attainment demonstration under 189(a)(1)(B), a RACM determination under section 172(c)d section 189(a)(1)(c), a RFP demonstration under 189(c)(1), and contingency measure requirements under section 172(c)(9) are satisfied for purposes of evaluating the redesignation request.
e. Subpart 4 and Control of PM2.5 Precursors
The D.C. Circuit in NRDC v. EPA remanded to EPA the two rules at issue in the case with instructions to EPA to re-promulgate them consistent with the requirements of subpart 4. EPA in this section addresses the Court's opinion with respect to PM2.5 precursors. While past implementation of subpart 4 for PM10 has allowed for control of PM10 precursors such as NOX from major stationary, mobile, and area sources in order to attain the standard as expeditiously as practicable, CAA section 189(e) specifically provides that control requirements for major stationary sources of direct PM10 shall also apply to PM10 precursors from those sources, except where EPA determines that major stationary sources of such precursors “do not contribute significantly to PM10 levels which exceed the standard in the area.”
EPA's 1997 PM2.5 implementation rule, remanded by the D.C. Circuit, contained rebuttable presumptions concerning certain PM2.5 precursors applicable to attainment plans and control measures related to those plans. Specifically, in 40 CFR 51.1002, EPA provided, among other things, that a state was “not required to address VOC [and ammonia] as . . . PM2.5 attainment plan precursor[s] and to evaluate sources of VOC [and ammonia] emissions in the State for control measures.” EPA intended these to be rebuttable presumptions. EPA established these presumptions at the time because of uncertainties regarding the emission inventories for these Start Printed Page 6855pollutants and the effectiveness of specific control measures in various regions of the country in reducing PM2.5 concentrations. EPA also left open the possibility for such regulation of VOC and ammonia in specific areas where that was necessary.
The Court in its January 4, 2013, decision made reference to both section 189(e) and 40 CFR 51.1002, and stated that, “In light of our disposition, we need not address the petitioners' challenge to the presumptions in [40 CFR 51.1002] that volatile organic compounds and ammonia are not PM2.5 precursors, as subpart 4 expressly governs precursor presumptions.” NRDC v. EPA, at 27, n.10.
Elsewhere in the Court's opinion, however, the Court observed:
Ammonia is a precursor to fine particulate matter, making it a precursor to both PM2.5 and PM10. For a PM10 nonattainment area governed by subpart 4, a precursor is presumptively regulated. See 42 U.S.C. § 7513a(e) [section 189(e)]. Id. at 21, n.7.
For a number of reasons, EPA believes that its proposed redesignation of the Macon Area is consistent with the Court's decision on this aspect of subpart 4. First, while the Court, citing section 189(e), stated that “for a PM10 area governed by subpart 4, a precursor is `presumptively regulated,' ” the Court expressly declined to decide the specific challenge to EPA's 1997 PM2.5 implementation rule provisions regarding ammonia and VOC as precursors. The Court had no occasion to reach whether and how it was substantively necessary to regulate any specific precursor in a particular PM2.5 nonattainment area, and did not address what might be necessary for purposes of acting upon a redesignation request.
However, even if EPA takes the view that the requirements of subpart 4 were deemed applicable at the time that the state submitted the redesignation request, and disregards the implementation rule's rebuttable presumptions regarding ammonia and VOC as PM2.5 precursors, the regulatory consequence would be to consider the need for regulation of all precursors from any sources in the area to demonstrate attainment and to apply the section 189(e) provisions to major stationary sources of precursors. In the case of the Macon Area, EPA believes that doing so is consistent with proposing redesignation of the area for the PM2.5 standard. The Macon Area has attained the standard without any specific additional controls of VOC and ammonia emissions from any sources in the area.
Precursors in subpart 4 are specifically regulated under the provisions of section 189(e), which requires, with important exceptions, control requirements for major stationary sources of PM10 precursors. Under subpart 1 and EPA's prior implementation rule, all major stationary sources of PM2.5 precursors were subject to regulation, with the exception of ammonia and VOC. Thus, we must address here whether additional controls of ammonia and VOC from major stationary sources are required under section 189(e) of subpart 4 in order to redesignate the area for the 1997 PM2.5 standard. As explained below, we do not believe that any additional controls of ammonia and VOC are required in the context of this redesignation.
In the General Preamble, EPA discusses its approach to implementing section 189(e). See 57 FR 13538-13542. With regard to precursor regulation under section 189(e), the General Preamble explicitly stated that control of VOCs under other Act requirements may suffice to relieve a state from the need to adopt precursor controls under section 189(e). 57 FR 13542. EPA in this proposal proposes to determine that the SIP has met the provisions of section 189(e) with respect to ammonia and VOCs as precursors. This proposed determination is based on our findings that: (1) The Macon Area contains no major stationary sources of ammonia, and (2) existing major stationary sources of VOC are adequately controlled under other provisions of the CAA regulating the ozone NAAQS. In the alternative, EPA proposes to determine that, under the express exception provisions of section 189(e), and in the context of the redesignation of the area, which is attaining the 1997 annual PM2.5 standard, at present ammonia and VOC precursors from major stationary sources do not contribute significantly to levels exceeding the 1997 PM2.5 standard in the Macon Area. See 57 FR 13539-42.
EPA notes that its 1997 PM2.5 implementation rule provisions in 40 CFR 51.1002 were not directed at evaluation of PM2.5 precursors in the context of redesignation, but at SIP plans and control measures required to bring a nonattainment area into attainment of the 1997 PM2.5 NAAQS. By contrast, redesignation to attainment primarily requires the area to have already attained due to permanent and enforceable emission reductions, and to demonstrate that controls in place can continue to maintain the standard. Thus, even if we regard the Court's January 4, 2013, decision as calling for “presumptive regulation” of ammonia and VOC for PM2.5 under the attainment planning provisions of subpart 4, those provisions in and of themselves do not require additional controls of these precursors for an area that already qualifies for redesignation. Nor does EPA believe that requiring the State to address precursors differently than they have already would result in a substantively different outcome.
Although, as EPA has emphasized, its consideration here of precursor requirements under subpart 4 is in the context of a redesignation to attainment, EPA's existing interpretation of subpart 4 requirements with respect to precursors in attainment plans for PM10 contemplates that states may develop attainment plans that regulate only those precursors that are necessary for purposes of attainment in the area in question, i.e., states may determine that only certain precursors need be regulated for attainment and control purposes. Courts have upheld this approach to the requirements of subpart 4 for PM10. EPA believes that application of this approach to PM2.5 precursors under subpart 4 is reasonable. Because the Macon Area has already attained the 1997 PM2.5 NAAQS with its current approach to regulation of PM2.5 precursors, EPA believes that it is reasonable to conclude in the context of this redesignation that there is no need to revisit the attainment control strategy with respect to the treatment of precursors. Even if the court's decision is construed to impose an obligation, in evaluating this redesignation request, to consider additional precursors under subpart 4, it would not affect EPA's approval here of Georgia's request for redesignation of the Macon Area. In the context of a redesignation, Georgia has shown that the Macon Area has attained the standard. Moreover, the State has shown, and EPA has proposed to determine, that attainment in this area Start Printed Page 6856is due to permanent and enforceable emissions reductions on all precursors necessary to provide for continued attainment. It follows logically that no further control of additional precursors is necessary. Accordingly, EPA does not view the January 4, 2013, decision of the court as precluding redesignation of the Macon Area to attainment for the 1997 annual PM2.5 NAAQS at this time.
In sum, even if Georgia were required to address precursors for the Macon Area under subpart 4 rather than under subpart 1, EPA would still conclude that the area had met all applicable requirements for purposes of redesignation in accordance with section 107(d)(3(E)(ii) and (v).
f. Maintenance Plan and Evaluation of Precursors
With regard to the redesignation of the Macon Area, in evaluating the effect of the court's remand of EPA's implementation rule, which included presumptions against consideration of VOC and ammonia as PM2.5 precursors, EPA in this proposal is also considering the impact of the decision on the maintenance plan required under sections 175A and 107(d)(3)(E)(iv). To begin with, EPA notes that the Area has attained the 1997 annual PM2.5 NAAQS and that the State has shown that attainment of that standard is due to permanent and enforceable emission reductions.
EPA proposes to determine that the State's maintenance plan shows continued maintenance of the standard by tracking the levels of the precursors whose control brought about attainment of the 1997 PM2.5 standard in the Macon Area. EPA therefore believes that the only additional consideration related to the maintenance plan requirements that results from the Court's January 4, 2013, decision is that of assessing the potential role of VOC and ammonia in demonstrating continued maintenance in this area. As explained below, based upon documentation provided by Georgia and supporting information, EPA believes that the maintenance plan for the Macon Area need not include any additional emission reductions of VOC or ammonia in order to provide for continued maintenance of the standard.
First, as noted above in EPA's discussion of section 189(e), VOC emission levels in this area have historically been well-controlled under SIP requirements related to ozone and other pollutants. Second, total ammonia emissions throughout the Macon area are very low, estimated to be approximately 1,000 tons per year. See Table 7 below. This amount of ammonia emissions appears especially small in comparison to the total amounts of SO2, NOX, and even direct PM2.5 emissions from sources in the Area. Third, as described below, available information shows that no precursor, including VOC and ammonia, is expected to increase over the maintenance period so as to interfere with or undermine the State's maintenance demonstration.
Georgia's maintenance plan shows that emissions of direct PM2.5, SO2, and NOX are projected to decrease in the Macon Area by 237 tons, 72,360 tons, and 11,608 tons, respectively, from 2007 to 2023. See Table 6, above. In addition, emissions inventories used in the regulatory impact analysis (RIA) for the 2012 PM2.5 NAAQS show that VOC and ammonia emissions are projected to decrease by 4,377 tons and 70 tons, respectively between 2007 and 2020. See Table 7 below. While the RIA emissions inventories are only projected out to 2020, there is no reason to believe that this downward trend would not continue through 2023. Given that the Macon Area is already attaining the 1997 annual PM2.5 NAAQS even with the current level of emissions from sources in the Area, the downward trend of emissions inventories would be consistent with continued attainment. Indeed, projected emissions reductions for the precursors that the State is addressing for purposes of the 1997 PM2.5 NAAQS indicate that the Area should continue to attain the NAAQS following the precursor control strategy that the State has already elected to pursue. Even if VOC and ammonia emissions were to increase unexpectedly between 2020 and 2023, the overall emissions reductions projected in direct PM2.5, SO2, and NOX would be sufficient to offset any increases. For these reasons, EPA believes that local emissions of all of the potential PM2.5 precursors will not increase to the extent that they will cause monitored PM2.5 levels to violate the 1997 annual PM2.5 standard during the maintenance period.
|2007||2020||Net change||2007||2020||Net change|
In addition, available air quality data and modeling analyses show continued maintenance of the standard during the maintenance period. As noted in section V, above, the Macon Area recorded a PM2.5 design value of 13.1 μg/m3 during 2012, the most recent year available with complete, quality-assured and certified ambient air monitoring data. This is well below the 1997 annual PM2.5 NAAQS of 15 µg/m3. Moreover, the modeling analysis conducted for the RIA for the 2012 PM2.5 NAAQS indicates that the design value for this area is expected to continue to decline through 2020. In the RIA analysis, the 2020 modeled design value for the Macon Area is 10.9 µg/m3. Given the significant decrease in overall precursor emissions projected through 2023, it is reasonable to conclude that monitored PM2.5 levels in this area will also continue to decrease through 2023.
Thus, EPA believes that there is ample justification to conclude that the Macon Area should be redesignated, even taking into consideration the Start Printed Page 6857emissions of VOC and ammonia potentially relevant to PM2.5. After consideration of the D.C. Circuit's January 4, 2013, decision, and for the reasons set forth in this notice, EPA continues to propose approval of the State's maintenance plan and its request to redesignate the Macon Area to attainment for the 1997 annual PM2.5 NAAQS.
VII. What is EPA's analysis of Georgia's proposed NOX and PM2.5 MVEBs for the Macon area?
Under section 176(c) of the CAA, new transportation plans, programs, and projects, such as the construction of new highways, must “conform” to (i.e., be consistent with) the part of the state's air quality plan that addresses pollution from cars and trucks. Conformity to the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS or any interim milestones. If a transportation plan does not conform, most new projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria, and procedures for demonstrating and assuring conformity of such transportation activities to a SIP. The regional emissions analysis is one, but not the only, requirement for implementing transportation conformity. Transportation conformity is a requirement for nonattainment and maintenance areas. Maintenance areas are areas that were previously nonattainment for a particular NAAQS but have since been redesignated to attainment with an approved maintenance plan for that NAAQS.
Under the CAA, states are required to submit, at various times, control strategy SIPs and maintenance plans for nonattainment areas. These control strategy SIPs (including RFP and attainment demonstration) and maintenance plans create MVEBs for criteria pollutants and/or their precursors to address pollution from cars and trucks. Per 40 CFR part 93, MVEBs must be established for the last year of the maintenance plan. A state may adopt MVEBs for other years as well. The MVEBs is the portion of the total allowable emissions in the maintenance demonstration that is allocated to highway and transit vehicle use and emissions. See 40 CFR 93.101. The MVEBs serve as a ceiling on emissions from an area's planned transportation system. The MVEBs concept is further explained in the preamble to the November 24, 1993, Transportation Conformity Rule (58 FR 62188). The preamble also describes how to establish the MVEBs in the SIP and how to revise the MVEBs.
After interagency consultation with the transportation partners for the Macon Area, Georgia has elected to develop MVEBs for NOX and PM2.5 for the entire nonattainment area. Georgia has developed these MVEBs, as required, for the last year of its maintenance plan, 2023. The MVEBs reflect the total on-road emissions for 2023, plus an allocation from the available NOX and PM2.5 safety margin. Under 40 CFR 93.101, the term “safety margin” is the difference between the attainment level (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The safety margin can be allocated to the transportation sector; however, the total emissions must remain below the attainment level. The NOX and PM2.5 MVEBs and allocation from the safety margin were developed in consultation with the transportation partners and were added to account for uncertainties in population growth, changes in model vehicle miles traveled and new emission factor models. The NOX and PM2.5 MVEBs for the Macon Area are identified in Table 8 below.
|2023 Mobile Emissions||70.2||1,991|
|2023 Safety Margin Allocated||10.3||196|
|2023 Total Mobile Budget||80.5||2,187|
In an effort to accommodate future variations in Travel Demand Models (TDM) and the vehicle miles traveled forecast when no change to the network is planned, GA EPD consulted with the interagency consultation group, including U.S. EPA Region 4, to determine a reasonable approach to address this variation. The projected 2023 on-road motor vehicle emissions for direct PM2.5 and NOX are 70 tons and 1,991 tons, respectively. On-road emissions of SO2 are considered de minimis (70 FR 24280 at 24283, May 6, 2005); therefore, no budget for SO2 is required.
A safety margin is necessary to accommodate the variabilities, or worst-case scenarios, that can occur due to future planning assumptions. The worst-case daily motor vehicle emissions projection for PM2.5 is 14.7 percent above the projected 2023 on-road emissions. In a worst-case scenario, the needed annual safety margin for the MVEB would be 10.3 tons resulting in an overall MVEB of 80.5 tons per year. The worst-case daily motor vehicle emissions projection for NOX is 9.8 percent above the projected 2023 on-road emissions. In a worst-case scenario, the needed annual safety margin for the MVEB would be 196 tons resulting in an overall MVEB of 2,187 tons per year.
Through this rulemaking, EPA is proposing to approve the MVEBs for NOX and PM2.5 for 2023 for the Macon Area into the Georgia SIP because EPA has determined that the Area maintains the 1997 annual PM2.5 NAAQS with the emissions at the levels of the budgets. Once the MVEBs for the Macon Area are approved or found adequate (whichever is completed first), they must be used for future conformity determinations. In addition, as discussed in Section V above, EPA is proposing that if this approval is finalized in 2014, the Area will continue to maintain the 1997 Annual PM2.5 NAAQS through at least 2024. After thorough review, EPA is proposing to approve the budgets because they are consistent with maintenance of the 1997 annual PM2.5 NAAQS through 2023.
VIII. What is the status of EPA's adequacy determination for the proposed NOX and PM2.5 MVEBs for 2023 for the Macon area?
When reviewing submitted “control strategy” SIPs or maintenance plans containing MVEBs, EPA may affirmatively find the MVEBs contained therein adequate for use in determining transportation conformity. Once EPA affirmatively finds that the submitted MVEBs are adequate for transportation conformity purposes, the MVEBs must Start Printed Page 6858be used by state and federal agencies in determining whether proposed transportation projects conform to the SIP as required by section 176(c) of the CAA.
EPA's substantive criteria for determining adequacy of a MVEBs are set out in 40 CFR 93.118(e)(4). The process for determining adequacy consists of three basic steps: public notification of a SIP submission, a public comment period, and EPA's adequacy determination. This process for determining the adequacy of submitted MVEBs for transportation conformity purposes was initially outlined in EPA's May 14, 1999, guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” EPA adopted regulations to codify the adequacy process in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards and Miscellaneous Revisions for Existing Areas; Transportation Conformity Rule Amendments—Response to Court Decision and Additional Rule Change,” on July 1, 2004 (69 FR 40004). Additional information on the adequacy process for transportation conformity purposes is available in the proposed rule entitled, “Transportation Conformity Rule Amendments: Response to Court Decision and Additional Rule Changes,” 68 FR 38974, 38984 (June 30, 2003).
As discussed earlier, Georgia's maintenance plan submission includes NOX and PM2.5 MVEBs for the Macon Area for 2023, the last year of the maintenance plan. EPA reviewed the NOX and PM2.5 MVEBs through the adequacy process, and the adequacy of the MVEBs was open for public comment on EPA's adequacy Web site on July 26, 2012, found at: http://www.epa.gov/otaq/stateresources/transconf/currsips.htm. The EPA public comment period on adequacy for the 2023 MVEBs for the Macon Area closed on August 27, 2012. EPA did not receive any comments on the adequacy of the MVEBs, nor did EPA receive any requests for the SIP submittal.
EPA intends to make its determination on the adequacy of the 2023 MVEBs for the Macon Area for transportation conformity purposes in the near future by completing the adequacy process that was started on July 26, 2012. After EPA finds the 2023 MVEBs adequate or takes final action to approve them into the Georgia SIP, the new MVEBs for NOX and PM2.5 must be used for future transportation conformity determinations. For required regional emissions analysis years that involve 2023 or beyond, the applicable budgets will be the new 2023 MVEBs established in the maintenance plan.
IX. Proposed Actions on the Redesignation Request and Maintenance Plan SIP Revisions Including Approval of the NOX and PM2.5 MVEBs for 2023 for the Macon Area
On June 2, 2011, EPA determined that the Macon Area was attaining the 1997 PM2.5 NAAQS. 76 FR 31858. EPA is now taking two separate but related actions regarding the Area's redesignation and maintenance of the 1997 annual PM2.5 NAAQS.
First, EPA is proposing to determine, based on complete, quality-assured and certified monitoring data for the 2007-2009 monitoring period, and after review of all available data since 2009 in AQS, that the Macon Area continues to attain the 1997 Annual PM2.5 NAAQS. EPA is also proposing to determine that the Macon Area has met the criteria under CAA section 107(d)(3)(E) for redesignation from nonattainment to attainment for the 1997 annual PM2.5 NAAQS. On this basis, EPA is proposing to approve Georgia's redesignation request for the Macon Area.
Second, EPA is proposing to approve the maintenance plan for the Macon Area, including the PM2.5 and NOX MVEBs for 2023 submitted by Georgia into the State's SIP (under section 175A). The maintenance plan demonstrates that the Area will continue to maintain the 1997 annual PM2.5 NAAQS, and the budgets meet all of the adequacy criteria contained in 40 CFR 93.118(e)(4) and (5). Further, as part of today's action, EPA is describing the status of its adequacy determination for transportation conformity purposes for the PM2.5 and NOX MVEBs for 2023 under 40 CFR 93.118(f)(1). Within 24 months from the effective date of EPA's adequacy determination for the MVEBs or the effective date for the final rule approving the MVEBs into the Georgia SIP, whichever is earlier, the transportation partners will need to demonstrate conformity to the new NOX and PM2.5 MVEBs pursuant to 40 CFR 93.104(e).
If finalized, approval of the redesignation request would change the official designation of Bibb County and the portion of Monroe County in the Macon Area for the 1997 annual PM2.5 NAAQS, found at 40 CFR part 81, from nonattainment to attainment.
X. What is the effect of EPA's proposed actions?
EPA's proposed actions establish the basis upon which EPA may take final action on the issues being proposed for approval today. Approval of Georgia's redesignation request would change the legal designation of Bibb County and the portion of Monroe County in the Macon Area for the 1997 annual PM2.5 NAAQS, found at 40 CFR part 81, from nonattainment to attainment. Approval of GA EPD's request would also incorporate a plan for maintaining the 1997 annual PM2.5 NAAQS in the Macon Area through 2024 into the Georgia SIP. This maintenance plan includes contingency measures to remedy any future violations of the 1997 annual PM2.5 NAAQS and procedures for evaluation of potential violations. The maintenance plan also includes NOX and PM2.5 MVEBs for the Macon Area. Additionally, EPA is notifying the public of the status of its adequacy determination for the NOX and PM2.5 MVEBs for 2023 under 40 CFR 93.118(f)(1).
XI. Statutory and Executive Order Reviews
Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, these proposed actions merely approve state law as meeting federal requirements and do not impose additional requirements beyond those imposed by state law. For that reason, these proposed actions:
- Are not “significant regulatory action[s]” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
- Do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);Start Printed Page 6859
- Are certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
- Do 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);
- Do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
- Are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
- Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
- Are not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
- Do not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in Georgia, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.Start List of Subjects
List of Subjects
- Environmental protection
- Air pollution control
- Incorporation by reference
- Intergovernmental relations
- Particulate matter
- Reporting and recordkeeping requirements
- Sulfur oxides
- Volatile organic compounds
- Environmental protection
- Air pollution control
Dated: January 14, 2014.
Beverly H. Banister,
Acting Regional Administrator, Region 4.
1. On September 8, 2011, at 76 FR 55774, EPA determined that the Macon Area attained the 1997 annual PM2.5 NAAQS by its applicable attainment date of April 5, 2010, and that the Area was continuing to attain the PM2.5 standard with monitoring data that was currently available.Back to Citation
2. In response to legal challenges of the annual standard promulgated in 2006, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) remanded that NAAQS to EPA for further consideration. See American Farm Bureau Federation and National Pork Producers Council, et al. v. EPA, 559 F.3d 512 (D.C. Cir. 2009). However, given that the 1997 and 2006 Annual NAAQS are essentially identical, attainment of the 1997 annual NAAQS would also indicate attainment of the remanded 2006 annual NAAQS.Back to Citation
3. The June 15, 2012 proposed approval (77 FR 35909) addressed all infrastructure SIP elements required under section 110(a)(2) for the 1997 annual PM2.5 NAAQS with the exception of the visibility element under section 110(a)(2)(D)(i)(II) (also known as “prong 4”). EPA finalized the June 15, 2012 proposed action on October 25, 2012 (77 FR 65125). EPA proposed approval of prong 4 for the 1997 annual PM2.5 NAAQS on February 20, 2013 (78 FR 11805) but has not yet taken final action on this element.Back to Citation
4. CAA Section 176(c)(4)(E) requires states to submit revisions to their SIPs to reflect certain federal criteria and procedures for determining transportation conformity. Transportation conformity SIPs are different from the MVEBs that are established in control strategy SIPs and maintenance plans.Back to Citation
5. In a September 23, 2013, letter to EPA, the State reaffirmed its commitment to address and correct any violation of the 1997 annual PM2.5 NAAQS as expeditiously as practicable and no later than 24 months from the trigger activation.Back to Citation
6. Applicable requirements of the CAA that come due subsequent to the area's submittal of a complete redesignation request remain applicable until a redesignation is approved, but are not required as a prerequisite to redesignation. Section 175A(c) ofBack to Citation
7. Sierra Club v. Whitman was discussed and distinguished in a recent D.C. Circuit decision that addressed retroactivity in a quite different context, where, unlike the situation here, EPA sought to give its regulations retroactive effect. National Petrochemical and Refiners Ass'n v. EPA. 630 F.3d 145, 163 (D.C. Cir. 2010), rehearing denied 643 F.3d 958 (D.C. Cir. 2011), cert denied 132 S. Ct. 571 (2011).Back to Citation
8. PM10 refers to particles nominally 10 micrometers in diameter or smaller.Back to Citation
9. The potential effect of section 189(e) on section 189(a)(1)(A) for purposes of evaluating this redesignation is discussed below.Back to Citation
10. i.e., attainment demonstration, RFP, RACM, milestone requirements, contingency measures.Back to Citation
11. As explained above, EPA does not believe that the Court's January 4, 2013, decision should be interpreted so as to impose these requirements on the states retroactively. Sierra Club v. Whitman, supra.Back to Citation
12. Under either subpart 1 or subpart 4, for purposes of demonstrating attainment as expeditiously as practicable, a state is required to evaluate all economically and technologically feasible control measures for direct PM emissions and precursor emissions, and adopt those measures that are deemed reasonably available.Back to Citation
13. The Macon Area has reduced VOC emissions through the implementation of various control programs including VOC RACT regulations and various on-road and non-road motor vehicle control programs.Back to Citation
14. See, e.g., “Approval and Promulgation of Implementation Plans for California—San Joaquin Valley PM-10 Nonattainment Area; Serious Area Plan for Nonattainment of the 24-Hour and Annual PM-10 Standards,” 69 FR 30006 (May 26, 2004) (approving a PM10 attainment plan that impose controls on direct PM10 and NOX emissions and did not impose controls on SO2, VOC, or ammonia emissions).Back to Citation
15. See, e.g., Assoc. of Irritated Residents v. EPA et al., 423 F.3d 989 (9th Cir. 2005).Back to Citation
16. These emissions estimates were taken from the emissions inventories developed for the RIA for the 2012 PM2.5 NAAQS.Back to Citation
[FR Doc. 2014-02480 Filed 2-4-14; 8:45 am]
BILLING CODE 6560-50-P