Petition for Reconsideration and Withdrawal of Findings of Significant Contribution and Rulemaking for Georgia for Purposes of Reducing Ozone Interstate Transport, 21528-21538 [E8-8673]
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Federal Register / Vol. 73, No. 78 / Tuesday, April 22, 2008 / Rules and Regulations
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Issued in Renton, Washington, on April 14,
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Ali Bahrami,
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[FR Doc. E8–8531 Filed 4–21–08; 8:45 am]
BILLING CODE 4910–13–P
PEACE CORPS
22 CFR Part 304
RIN 0420–AA23
Claims Against the Government Under
the Federal Tort Claims Act
Peace Corps.
Direct final rule.
AGENCY:
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ACTION:
SUMMARY: The Peace Corps is revising
its regulations concerning claims filed
under the Federal Tort Claims Act. This
change clarifies the Chief Financial
Officer’s authority to approve claims for
amounts under $5,000.
DATES: This direct final rule is effective
on June 19, 2008, without further action,
unless adverse comment is received by
Peace Corps by June 5, 2008. If adverse
comment is received, Peace Corps will
publish a timely withdrawal of the rule
in the Federal Register.
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You may submit comments
by e-mail to sglasow@peacecorps.gov.
Include RIN 0420–AA23 in the subject
line of the message. You may also
submit comments by mail to Suzanne
Glasow, Office of the General Counsel,
Peace Corps, Suite 8200, 1111 20th
Street, NW., Washington, DC 20526.
Contact Suzanne Glasow for copies of
comments.
FOR FURTHER INFORMATION CONTACT:
Suzanne Glasow, Associate General
Counsel, 202–692–2150,
sglasow@peacecorps.gov.
SUPPLEMENTARY INFORMATION: The Chief
Financial Officer will be the final
deciding authority for claims worth less
than $5,000.
ADDRESSES:
Section-by-Section Analysis
Section 304.10
Subpart (b) is amended to reflect the
fact that the Chief Financial Officer will
make final determinations for claims
worth less than $5,000.
Executive Order 12866
This regulation has been determined
to be non-significant within the
meaning of Executive Order 12866.
Regulatory Flexibility Act of 1980 (5
U.S.C. 605(b))
This regulatory action will not have a
significant adverse impact on a
substantial number of small entities.
Unfunded Mandates Act of 1995 (Sec.
202, Pub. L. 104–4)
This regulatory action does not
contain a Federal mandate that will
result in the expenditure by state, local,
and tribal governments, in aggregate, or
by the private sector of $100 million or
more in any one year.
Paperwork Reduction Act of 1995 (44
U.S.C., Chapter 35)
This regulatory action will not impose
any additional reporting or
recordkeeping requirements under the
Paperwork Reduction Act.
Federalism (Executive Order 13132)
This regulatory action does not have
Federalism implications, as set forth in
Executive Order 13132. It will not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.
List of Subjects
Claims.
I Accordingly, under the authority of 22
U.S.C. 2503(b) and 28 U.S.C. 2672,
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Peace Corps amends the Code of Federal
Regulations, Title 22, Chapter III, as
follows:
PART 304—CLAIMS AGAINST THE
GOVERNMENT UNDER THE FEDERAL
TORT CLAIMS ACT
1. The authority citation for part 304
continues to read as follows:
I
Authority: 28 U.S.C. 2672; 22 U.S.C.
2503(b); E.O. 12137, as amended.
2. In § 304.10, paragraph (b) is revised
to read as follows:
I
§ 304.10
Review of claim.
*
*
*
*
*
(b) After legal review and
recommendation by the General
Counsel, the Director of the Peace Corps
will make a written determination on
the claim, unless the claim is worth less
than $5,000, in which case the Chief
Financial Officer will make the written
determination.
Dated: April 16, 2008.
Carl R. Sosebee,
Acting General Counsel.
[FR Doc. E8–8658 Filed 4–21–08; 8:45 am]
BILLING CODE 6015–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 51
[EPA–HQ–OAR–2004–0439, FRL–8556–2]
RIN 2060–AN12
Petition for Reconsideration and
Withdrawal of Findings of Significant
Contribution and Rulemaking for
Georgia for Purposes of Reducing
Ozone Interstate Transport
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
SUMMARY: In this action, EPA is
amending a final rule it issued under
Section 110 of the Clean Air Act (CAA)
related to the transport of nitrogen
oxides (NOX). On April 21, 2004, we
issued a final rule (Phase II NOX SIP
Call Rule) that required the State of
Georgia (Georgia) to submit revisions to
its State Implementation Plan (SIP) to
include provisions that prohibit
specified amounts of NOX emissions—
one of the precursors to ozone (smog)
pollution—for the purposes of reducing
NOX and ozone transport across State
boundaries in the eastern half of the
United States. This rule became
effective on June 21, 2004.
Subsequently, the Georgia Coalition
for Sound Environmental Policy (GCSEP
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or Petitioners) filed a Petition for
Reconsideration requesting that EPA
reconsider the applicability of the NOX
SIP Call Rule to Georgia.
In response to this Petition, and based
upon review of additional available
information, EPA proposed to remove
Georgia from the NOX SIP Call Rule.
(June 8, 2007). Specifically, EPA
proposed to rescind the applicability of
the requirements of the Phase II NOX
SIP Call Rule to Georgia, only. Six
parties commented on the proposed
rule. No requests were made to hold a
public hearing. After considering these
comments, EPA is issuing a final rule as
proposed.
DATES: This final rule is effective on
May 22, 2008.
ADDRESSES: The EPA has established a
docket for this action, identified by
Docket ID No. EPA–HQ–OAR–2005–
0439. All documents in the docket are
listed in the https://www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in https://
www.regulations.gov or in hard copy at
the Air Docket, EPA/DC, EPA West,
Room 3334, 1301 Constitution Ave.,
NW., Washington, DC. This Docket
Facility is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding
legal holidays. The telephone number
for the Public Reading Room is (202)
566–1744, and the telephone number for
the Air Docket is (202) 566–1742.
FOR FURTHER INFORMATION CONTACT: Tim
Smith, Air Quality Policy Division,
Geographic Strategies Group, (C539–04),
Environmental Protection Agency,
Research Triangle Park, NC 27711,
telephone (919) 541–4718, e-mail
smith.tim@epa.gov. For legal questions,
please contact Winifred Okoye, U.S.
EPA, Office of General Counsel, Mail
Code 2344A, 1200 Pennsylvania
Avenue, NW., Washington, DC 20460,
telephone (202) 564–5446, e-mail at
okoye.winifred@epa.gov.
industries employing large stationary
source internal combustion engines.
B. How Is This Preamble Organized?
The information presented in this
preamble is organized as follows:
I. General Information
A. Does This Action Apply to Me?
B. How Is This Preamble Organized?
II. Background
A. Background on NOX SIP Call Rule,
Subsequent Litigation and Rulemaking
Related to Georgia
B. GCSEP Requests Related to Phase II NOX
SIP Call Rule
III. Proposed Response to GCSEP’s Petition
for Reconsideration
A. Proposed Action
B. Rationale for Proposed Action
C. Final Action
IV. Response to Comments on Proposal
A. Legal Rationale
B. Emissions Cap
C. Comparison With the Atlanta State
Implementation Plan
D. Other Issues
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer
Advancement Act
J. Executive Order 12898: Federal Actions
to Address Environmental Justice in
Minority Populations and Low-Income
Populations
K. Congressional Review Act
L. Judicial Review
II. Background
A. Does this Action Apply to Me?
A. Background on NOX SIP Call,
Subsequent Litigation and Rulemaking
Related to Georgia
On October 27, 1998, EPA took final
action to prohibit specified amounts of
emissions of oxides of NOX, one of the
main precursors of ground-level ozone,
from being transported across State
boundaries in the eastern half of the
United States. (The NOX SIP Call Rule)
(63 FR 57356), (October 27, 1998). We
found that sources and emitting
activities in 22 States and the District of
Columbia (23 States) 1 were emitting
This action removes the applicability
of certain requirements related to NOX
emissions in Georgia. If these
requirements were not removed, they
would potentially affect electric
utilities, cement manufacturing, and
1 The 23 States were Alabama, Connecticut,
Delaware, District of Columbia, Georgia, Illinois,
Indiana, Kentucky, Maryland, Massachusetts,
Michigan, Missouri, North Carolina, New Jersey,
New York, Ohio, Pennsylvania, Rhode Island,
South Carolina, Tennessee, Virginia, West Virginia,
and Wisconsin (63 FR 57394).
SUPPLEMENTARY INFORMATION:
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I. General Information
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NOX in amounts that significantly
contribute to downwind nonattainment
of the 1-hour ozone national ambient air
quality standard (NAAQS or standard).
(63 FR 57356). We also determined
separately that sources and emitting
activities in these 23 States were
emitting NOX in amounts that
significantly contribute to and interfere
with maintenance of downwind
nonattainment of the 8-hour ozone
NAAQS (63 FR 57358, 57379). To
determine significant contribution, we
examined both the air quality impacts of
emissions and the amount of reductions
that could be achieved through the
application of highly cost-effective
controls. The air quality impacts portion
of our significant contribution analysis
relied on state specific modeling, and
modeling and recommendations by the
Ozone Transport Assessment Group
(OTAG) 62 FR 60335 (November 7,
1997), and 63 FR 57381–57399.
This analysis examined the impact of
upwind emissions on downwind
nonattainment areas. We explained that
a downwind area should be considered,
‘‘nonattainment,’’ for purposes of section
110(a)(2)(D)(i)(I), under the 1-hour ozone
NAAQS if the area (as of 1994–96 time
period) had nonattainment air quality and if
the area was modeled to have nonattainment
air quality in the year 2007, after
implementation of all measures specifically
required of the area under the CAA as well
as implementation of Federal measures
required or expected to be implemented by
that date.
63 FR 57386; See also 63 FR 57373–75;
62 FR 60324–25. We also explained that
‘‘nonattainment [area] includes areas
that have monitored violations of the
standard and areas that ‘contribute to
ambient air quality in a nearby area’ that
is violating the standard.’’ 63 FR 57373.
Thus, to qualify as a downwind
nonattainment receptor, an area had to
be both in current nonattainment and
also modeled to have nonattainment air
quality in 2007. An area shown to be in
attainment at either time was not
considered a downwind receptor. 63 FR
57371, 73–75, 57382–83. See also 63 FR
57385–87 for our discussion on the
determination of downwind
nonattainment receptors.
Further, we assessed each upwind
State’s contribution to 1-hour standard
downwind nonattainment independent
of the State’s contribution to 8-hour
standard nonattainment. 62 FR 60326;
63 FR 57377 and 57395. We determined
and concluded that the level of NOX
emissions reductions necessary to
address the significant contribution for
the 8-hour NAAQS would be achieved
using the same control measures as
required for the 1-hour standard (63 FR
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57446). Therefore, we promulgated only
one NOX emissions budget for each of
the affected upwind States (63 FR
57439). Further, we required these
States to submit revised SIPs,
prohibiting those amounts of NOX
emissions such that any remaining
emissions would not exceed the level
specified in the NOX SIP Call
regulations for that State in 2007. 62 FR
60364–5; 63 FR 57378 and 57426.
With regard to Georgia, we
determined that sources and emitting
activities in Georgia were significantly
contributing to 1-hour standard
nonattainment in Birmingham, Alabama
and Memphis, Tennessee (63 FR 57394).
At the time the NOX SIP Call Rule was
being developed, monitored air quality
data for 1994–1996 indicated that
Memphis, Tennessee had nonattainment
air quality 2 although we had
redesignated the Memphis, Tennessee
nonattainment area as an attainment
area in 1995.3 60 FR 3352 (January 17,
1995). Further, Birmingham, Alabama
was a designated nonattainment area for
the 1-hour ozone NAAQS at the time of
promulgation of the NOX SIP Call rule.
In addition, the modeling done at that
time showed that the Memphis and
Birmingham areas were modeled to
have nonattainment air quality for the 1hr standard in the year 2007. Thus, at
that time Memphis, Tennessee and
Birmingham, Alabama were
‘‘nonattainment’’ for purposes of the
NOX SIP Call Rule.
A number of parties, including certain
States as well as industry and labor
groups, challenged the NOX SIP Call
Rule. Specifically, Georgia and Missouri
industry petitioners, citing the OTAG
modeling and recommendations,
maintained that EPA had record support
for the inclusion of only the eastern part
of the state of Missouri (Missouri), and
northern Georgia as contributing
significantly to downwind
nonattainment. The United States Court
of Appeals for the District of Columbia
(D.C. Circuit or Court), upheld our
findings of significant contribution for
almost all jurisdictions covered by the
NOX SIP Call, with respect to the 1-hour
2 Monitored air quality data indicated that the
Memphis, Tennessee nonattainment area had
nonattainment air quality from 1994 through 2000.
Since 2001, the Memphis, Tennessee nonattainment
area has had monitored attainment air quality data.
3 In the NO SIP Call Rule, we relied on the
X
designated area solely as a proxy to determine
which areas have air quality in nonattainment.
‘‘Our reliance on designated nonattainment areas
for purposes of the 1-hour NAAQS does not
indicate that the reference in section
110(a)(2(D)(i)(I) to ‘nonattainment’ should be
interpreted to refer to areas designated
nonattainment.’’ 63 FR 57375 n.25.
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standard 4 but vacated and remanded
the inclusion of Georgia and Missouri,
Michigan v. EPA, 213 F. 3d 663 (D.C.
Cir. 2000), cert. denied, 121 S. Ct. 1225
(2001) (Michigan). The Court agreed
with the litigants that only the eastern
portion of Missouri and northern
portion of Georgia were within the
geographic area for photochemical
modeling known as the ‘‘fine grid,’’ and
thus, that the record for the rulemaking
supported only including those portions
of the two States.5
Subsequently, in response to the
Court decision in Michigan, we
proposed (in what is known as the
‘‘Phase II NOX SIP Call rule’’), the
inclusion of only the fine grid parts of
Georgia and Missouri in the NOX SIP
Call with respect to the 1-hour standard
only. (67 FR 8396, (February 22, 2002)).
We also proposed revised NOX budgets
for Georgia and Missouri that would
include only the fine grid portions of
these States. On April 21, 2004, we
finalized the Phase II NOX SIP Call rule.
This rule included eastern Missouri and
northern Georgia as proposed, allocated
revised NOX budgets that reflected the
inclusion of sources in only these areas,
and set revised SIP submittal and full
compliance dates of April 1, 2005 and
May 1, 2007, respectively. 69 FR 21604,
(April 21, 2004).
B. GCSEP Requests Related to Phase II
NOX SIP Call Rule
After our promulgation of the Phase II
NOX SIP Call rule, GCSEP, on June 16,
2004, took several legal actions: (1) A
request that EPA reconsider the
rulemaking in light of new information
(2) a request that EPA stay the
effectiveness of the rule pending a
review of that information, and (3) a
formal challenge to the rule in Federal
Courts.
Petition for Reconsideration. GCSEP
requested that EPA ‘‘convene a
proceeding for reconsideration of the
rule,’’ under section 307(d)(7)(B) of the
Act. (Petition for Reconsideration, June
16, 2004) (Petition.) GCSEP made this
request based on assertions that:
—Certain events occurred after the close
of the notice and comment period on
our February 22, 2002, proposal (that
is, these events occurred after April
15, 2002), and
—EPA needed to reopen the rule for
public notice and comment on those
specific events.
4 In light of various challenges to the 8-hour
standard, we stayed the 8-hour basis for the NOX
SIP Call rule indefinitely. (65 FR 56245),
(September 18, 2000).
5 As the Court stated, ‘‘[a]ccordingly, they say the
NOX Budget for Missouri and Georgia should be
based solely on those emissions.’’ 213 F.3d at 684.
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GCSEP asserted that it ‘‘was
impracticable to raise [its] objection
within [the provided comment period]
or [that] the grounds for [its] objection
arose after the public comment period
(but within the time specified for
judicial review).’’ CAA Section
307(d)(7)(B). In addition, GCSEP further
asserted that its objection was ‘‘of
central relevance to the outcome of the
rule.’’ CAA Section 307(d)(7)(B).
Request for Stay of Effectiveness.
GCSEP also requested an administrative
stay of the effectiveness of the Phase II
NOX SIP Call Rule as it relates to
Georgia only. The stay would delay the
applicability of Phase II NOX SIP Call
requirements to Georgia during the
period EPA would conduct notice-andcomment rulemaking to address the
issues raised in the Petition. On March
1, 2005, EPA proposed to stay the
effectiveness of the Phase II NOX SIP
Call Rule, as requested by GCSEP, as to
Georgia only. (70 FR 9897, (March 1,
2005)). Four parties commented on the
proposed rule, raising issues related to
the merits of the stay, and issues related
to the merits of the Petition. On August
31, 2005, EPA finalized, as proposed, a
stay of the effectiveness of the Phase II
NOX SIP Call Rule as it related to
Georgia only. (70 FR 51591, (August 31,
2005)). EPA also responded to
comments on the stay but indicated that
it would respond to comments on the
merits of the Petition in a subsequent
rulemaking that would address the
Petition.
Challenge in Circuit Court. Finally,
GCSEP filed a challenge to the Phase II
NOX SIP call rule in the Court of
Appeals for the 11th Circuit, which has
since been transferred to the D.C.
Circuit. Georgia Coalition for Sound
Environmental Policy v. EPA, Case No.
04–13088–C. The EPA and GCSEP have
requested and the Court has granted the
request to hold the challenge in
abeyance pending completion of the
present rulemaking.
III. Proposed Response to GCSEP’s
Petition For Reconsideration
A. Proposed Action
In a June 8, 2007, rulemaking notice,
EPA initiated the process to respond to
the Petition. In that notice, we proposed
to remove only Georgia from inclusion
in the Phase II NOX SIP call rule. In the
proposal, EPA specifically noted that we
were not reopening any other portions
of the NOX SIP Call and Phase II NOX
SIP Call rules for public comment and
reconsideration. 72 FR 31774 (June 8,
2007).
In the Petition, GCSEP had argued
that Georgia did not meet EPA’s stated
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rationale for the NOX SIP call rule when
EPA promulgated the Phase II NOX SIP
Call rule. In short, GCSEP argued that
(1) EPA based its inclusion of northern
Georgia on a finding that northern
Georgia contributes to nonattainment of
the one-hour standard in Birmingham,
Alabama and Memphis, Tennessee; (2)
but that neither Birmingham nor
Memphis was a nonattainment area at
the time of the Phase II rulemaking; and
(3) as a result of the revised attainment
status of Birmingham and Memphis,
there are no 1-hour ozone
nonattainment areas in any States
affected by NOX emissions from
northern Georgia, and (4) therefore
northern Georgia no longer satisfied
EPA’s stated rationale for inclusion in
the NOX SIP Call Rule.
At proposal, we explained that in the
1998 NOX SIP Call Rule, we articulated
a test for defining a given downwind
‘‘receptor’’ location as ‘‘nonattainment’’
under section 110(a)(2)(D)(i)(I). We
defined ‘‘nonattainment’’ areas as
including ‘‘areas that have monitored
violations of the standard and areas that
’contribute to ambient air quality in a
nearby area’ that is violating the
standard’’ (63 FR 57373; See also, 63 FR
57375–85). Additionally, as noted
previously, to be defined as
‘‘nonattainment’’ receptors, the receptor
also had to be modeled to have
nonattainment air quality in the year
2007 when SIP Call controls would be
in place.
As earlier explained, with regard to
Georgia, EPA had determined that
sources and emitting activity in that
State emit NOX in amounts that
significantly contribute to
nonattainment of the 1-hour ozone
standard in the Birmingham, Alabama
and Memphis, Tennessee nonattainment
areas (63 FR 57394). Although we had
redesignated the Memphis, Tennessee
nonattainment area in 1995, monitored
air quality data for 1994–1996 indicated
nonattainment air quality.6 While
Birmingham, Alabama was designated
nonattainment for the 1-hour ozone
NAAQS and also had nonattainment air
quality. Thus, at the time of the
promulgation of the 1998 NOX SIP Call
rule, both Memphis, Tennessee and
Birmingham, Alabama were in
‘‘nonattainment’’ for purposes of the
NOX SIP Call Rule. In addition, the
earlier referenced modeling results
indicated that both areas were also
6 Monitored air quality data indicated that the
Memphis, Tennessee nonattainment area had
nonattainment air quality from 1994 through 2000.
Since 2001, the Memphis, Tennessee nonattainment
area has had monitored attainment air quality data.
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projected to have nonattainment air
quality in 2007.
We have now redesignated both of
these areas as 1-hour ozone attainment
areas and both currently have monitored
air quality data that does not violate the
1-hour ozone standard. Specifically, on
March 12, 2004, we redesignated
Birmingham, Alabama, to attainment of
the 1-hour ozone NAAQS. 69 FR 11798,
(March 12, 2004). In addition, the
Memphis, Tennessee nonattainment
area, which was redesignated in 1995
has had monitored attainment air
quality data since 2001.
Therefore, we agree with GCSEP that
at promulgation of the Phase II NOX SIP
Call Rule, both Memphis, Tennessee
and Birmingham, Alabama are now in
attainment of the 1-hour ozone
standard. Thus, both areas no longer
meet the definition of ‘‘nonattainment’’
used in the 1998 NOX SIP Call to
identify downwind receptor areas for
the air quality impacts portion of the
significant contribution analysis.
B. Final Action
At promulgation of the Phase II NOX
SIP Call Rule, both Memphis, Tennessee
and Birmingham, Alabama were in
attainment of the 1-hour ozone
standard. In light of the fact that both
downwind receptor areas are no longer
‘‘nonattainment’’ areas, for purposes of
the significant contribution analysis, we
are withdrawing our findings of
significant contribution for Georgia for
the 1-hr ozone standard, as proposed.
This in effect means that Georgia is no
longer required to submit a revised SIP
that prohibits certain amounts of NOX
emissions under the Phase II NOX SIP
Call Rule.
IV. Response to Comments on the
Proposed Rule
Six commenters submitted comments
on the June 8, 2007 proposal. The
comments are summarized below along
with EPA’s responses. In this section,
we are also responding to those
comments on the merits of this Petition
that we received at proposal of the stay
of the effectiveness of the NOX SIP Call
rule in Georgia and had indicated would
be better addressed in the context of this
rulemaking. 70 FR 51591, 51594
(August 31, 2005).
A. Legal Rationale
Comment: Several commenters agreed
with EPA’s proposed rationale for
removing Georgia from the NOX SIP Call
rule. These commenters agreed with
EPA that Georgia no longer met EPA’s
criteria for ‘‘significant contribution’’
when Birmingham was redesignated as
attainment area.
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Response: EPA agrees with these
commenters.
Comment: One commenter stated that
given the NOX emissions reduction
requirements that are already in place in
Georgia, implementing the NOX SIP Call
rule would not result in further NOX
emissions reductions, particularly from
electricity generating units (EGUs). This
commenter asserted that requiring
Georgia to implement the NOX SIP Call
requirements without regard to those
reductions already achieved and
required in the future, would be
‘‘arbitrary, capricious and not in
accordance with the law.’’
Response: As earlier stated, in the
June 8, 2007, proposal we explained
that our inclusion of Georgia in the
Phase II NOX SIP Call rule was based on
our definition of ‘‘nonattainment’’ and
determination of ‘‘significant
contribution to downwind
nonattainment’’ as articulated in the
1998 NOX SIP Call rule. 72 FR 31773.
Based on this definition and
determination, we had found that
emissions activities from northern
Georgia contributed significantly to
nonattainment of the one-hour ozone
standard in both Memphis, Tennessee
and Birmingham, Alabama. 72 FR
31774. We also explained at proposal
that both Memphis, Tennessee and
Birmingham, Alabama were designated
as attainment areas at the time of the
Phase II NOX SIP Call Rule. 72 FR
31774. Consequently, this rulemaking
reflects our belief that emissions
activities in Georgia did not meet the
1998 NOX SIP Call rule definition and
determination at the time of the Phase
II NOX SIP Call Rule and thus, that
emissions from northern Georgia could
no longer be identified as ‘‘contributing
significantly’’ to downwind
nonattainment problems. Thus,
although the commenter suggests we
consider achieved and future
reductions, our basis for this action does
not rely on other emissions controls in
Georgia.
Comment: One commenter disagreed
with both EPA’s proposed removal of
Georgia, and stated rationale for the
removal. This commenter noted that
Michigan, 213 F.3d 663, did not
question the inclusion of the northern
Georgia or the ‘‘fine grid’’ portion of the
NOX SIP Call photochemical modeling
in the NOX SIP Call rule. This
commenter believed that because the
inclusion of the fine grid portion of
Georgia was never in question, EPA
cannot legally question that now. This
commenter also asserted that the
grounds presented by GCSEP are not of
‘‘central relevance to the outcome of the
rule’’ because the inclusion of the ‘‘fine
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grid’’ portion of Georgia was not at issue
and therefore, that reconsideration of
Georgia’s inclusion in the NOX SIP Call
rule is not appropriate. The commenter
asserted that the only ‘‘relevant’’ issues
were the line between the fine grid and
coarse grid and the calculation of
emissions budgets, neither of which
were addressed by the Petition. One
commenter disagreed with another
commenter’s assertion that EPA cannot
revisit the original findings as it related
to Georgia. This commenter believed
that the issue of whether the Court
questioned any conclusions on
‘‘significant contribution’’ is irrelevant
in this context because the facts and
issues presented in this rulemaking
were not before the Court in Michigan.
Response: Our position on the
continued inclusion of Georgia in the
NOX SIP Call rule is not inconsistent
with the Michigan holding, inter alia,
that ‘‘[b]efore assessing ‘significance,’
EPA must find (1) emissions activity
within a state; (2) show with modeling
or other evidence that such emissions
are migrating into other states; and (3)
show that the emissions are contributing
to nonattainment.’’ Michigan, 213 F.3d
at 680 (emphasis added). Further, we
note that the petitioners had maintained
that there was record support for
inclusion of emissions from only the
eastern half of Missouri and the
northern two thirds of Georgia as
contributing to downwind ozone
problems. We also note the holding that
‘‘the fine grid portion[] of [Georgia was]
closest to * * * [the Birmingham]
nonattainment area[ ].’’Michigan, 213
F.3d at 682. Thus, this action reflects
our belief that with the redesignation of
the Birmingham, Alabama
nonattainment area, we can no longer
conclude that emissions activities in
Georgia are ‘‘contributing to [the
Birmingham] nonattainment [area].’’
We do agree, however, that Michigan
did not question either the ‘‘proposition
that the fine grid portion of each State
should be considered to make a
significant contribution downwind,’’ or
OTAG’s modeling analysis, but again we
note the applicable holding that the
‘‘critical issue is whether the targeted
‘source’ or ‘emissions activity’
‘contribute[s] significantly to
nonattainment’ in another state.’’
Michigan, 213 F.3d at 682 (alteration in
original). Again, we believe that the
redesignation of Birmingham, Alabama
and Memphis, Tennessee raises the
question as to ‘‘whether the targeted
‘source’ or ‘emissions activity’
‘contribute[s] significantly to
nonattainment’ in another state,’’ at the
time of the Phase II NOX SIP Call rule.
And we believe we no longer have
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record support showing that Georgia
‘contribute[s] significantly to
nonattainment’ in another state’’ that
would warrant our continued inclusion
of Georgia in the NOX SIP Call rule.
We also note that the issue at hand in
this rulemaking was not presented in
Michigan and thus, was not decided in
Michigan. That is, the Court did not rule
on whether EPA could continue to
subject a State to the NOX SIP Call
requirements if, at the time of the
rulemaking for inclusion of that State,
emissions activity from sources in that
State were no longer significantly
contributing to nonattainment in
downwind areas. And even if we
concede and agree with both comments
that Michigan does not require us to
revisit the inclusion of the ‘‘fine grid
portion’’ in the NOX SIP Call rule, and
that GCSEP’s petition raises issues
beyond the scope of the Phase II NOX
SIP Call rulemaking, we believe we
must be cognizant of the fact that
Memphis, Tennessee and Birmingham,
Alabama are no longer downwind
nonattainment receptors as
contemplated by the NOX SIP Call rule,
and take action accordingly. EPA must
have a rational basis for including any
area within the scope of the NOX SIP
Call and EPA concludes that it would
not be rational to apply the SIP Call to
an area that does not contribute to any
downwind receptor.
We also disagree with the comment
that petitioners did not meet the
grounds for reconsideration as provided
in CAA section 307(d)(7)(B). Much
confusion exists as to whether this
rulemaking is under CAA section
307(d)(7)(B). Although GCSEP invoked
CAA section 307(d)(7)(B) as authority
for its Petition, earlier we had informed
them, by letter dated October 22, 2004,
that our response would be under the
authority of the Administrative
Proceedings Act (APA), because CAA
section 307(d)(7)(B) was clearly
inapplicable. (A copy of this letter is in
the docket for this rulemaking.) Thus,
this rulemaking is being taken under
Section 553(e) of the APA, which
‘‘give[s] an interested person the right to
petition for the * * * amendment, or
repeal of a rule.’’ 5 U.S.C. § 553(e). See
also our earlier response to a comment
regarding our authority to stay the
effectiveness of the NOX SIP Call with
respect to Georgia pending a final
reconsideration rulemaking. 70 FR
51592–93 (August 31, 2005).
Comment: One commenter noted that
subsequent to the Phase II NOX SIP Call
rule, EPA has revoked the one-hour
ozone standard and asserted that the
NOX SIP Call requirements are obsolete
for Georgia as a result of the revocation.
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This commenter believed that Georgia
cannot significantly contribute to
nonattainment, nor interfere with
maintenance, of a standard that no
longer exists. The commenter asserted
that we cannot justify this rule because
of our authority to regulate activity that
interferes with maintenance of the onehour standard.
Response: As stated earlier, in this
action, we are finalizing our removal of
Georgia from the NOX SIP Call rule in
light of our redesignation of downwind
receptors that emissions activities in
Georgia were determined to be
significantly contributing to. We note,
however, that the NOX SIP Call rule
continues to apply in other areas
subsequent to the revocation of the 1hour ozone standard for purposes of
anti-backsliding during transition to
implementation of the 8-hour standard,
40 CFR 51.905(f) (2005), and is therefore
not ‘‘obsolete.’’ Further, with regard to
our authority to regulate emissions
activity that interferes with the 1-hour
ozone standard maintenance, under
section 110(a)(2)(D)(i)(I), we had also
determined, in the 1998 NOX SIP Call
rule, that this requirement was
inapplicable to the extent the 1-hour
standard would no longer apply to an
area subsequent to our attainment
determination. ‘‘Under these
circumstances, emissions from an
upwind area cannot interfere with
maintenance of the 1-hour NAAQS.’’ 63
FR 57379.
Comment: One commenter, citing
EPA’s response to comments on the
continued inclusion of Missouri in the
Phase II NOX SIP Call rulemaking,
argued that EPA has always taken a
‘‘once-in-always-in’’ approach to the
NOX SIP Call. The commenter asserted
that the proposed rule is contrary to
EPA’s previous ‘‘once-in-always-in’’
approach. The commenter noted that
the facts giving rise to GCSEP’s petition
occurred only at the end of a lengthy,
delayed rulemaking for the Phase II NOX
SIP Call rule. This commenter also
believed that the proposed rule, which
took into account updated information,
was inconsistent with our previous
statements relating to the continued
inclusion of Missouri in the NOX SIP
Call rule. The commenter also cited our
specific response to comments on this
issue that,
(1) ‘‘We disagree that a new emissions
inventory is necessary that takes into account
Missouri’s statewide NOX rule and other
post-1998 CAA rules. Because SIPs are
constantly changing, it is impractical to
revise emissions inventories and modeling
analyses each time changes are made,’’ and
(2) ‘‘* * * completing the NOX SIP Call rule
in Missouri is an equitable approach. It
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would be inequitable to use 2003 air quality
analysis for Missouri but to hold other NOX
SIP Call States to the 1998 analysis.’’ (69 FR
21626).
The commenter also noted our
statement at the time that ‘‘an agency
should not revisit an otherwise sound
rulemaking just due to the passage of
time leading to changed circumstances,
because circumstances always change.’’
Response to Comments: Phase II NOX
SIP Call Rule p. 47.
One commenter disagreed with
another commenter’s assertion that the
proposed rule violated the ‘‘once-inalways-in’’ approach, because (1) the
NOX SIP Call rule had yet to be
implemented in Georgia and (2) that
NOX emissions reductions have already
been made by the State of Georgia under
other State regulatory authorities.
Response: EPA does not agree that
this rule is inconsistent with an ‘‘oncein-always-in’’ approach. The issue at
hand is not whether Georgia (or parts of
Georgia) should continue to be ‘‘in,’’ but
whether as an initial matter Georgia (or
parts of Georgia) should be ‘‘in’’ the
Phase II NOX SIP Call rule at all. As
earlier explained, States are subject to
the NOX SIP Call requirements if they
meet the 1998 NOX SIP Call rule test for
significant contribution to
‘‘nonattainment’’ receptors. (63 FR
57373; 57375–85). States that meet this
test continue to be subject to the NOX
SIP Call requirements even with the
revocation of the 1-hour ozone standard.
40 CFR 51.905(f) (2005). Because both
Birmingham, Alabama and Memphis,
Tennessee were meeting the 1-hour
ozone standard and had been
redesignated as attainment areas at the
time of the Phase II NOX SIP Call Rule,
we no longer believe that the fine grid
portion of Georgia met the test for
significant contribution to
‘‘nonattainment’’ receptors at the time of
promulgation of the Phase II rule.
We are also not persuaded by
commenter’s citation of our responses to
comments in the Phase II NOX SIP Call
rule regarding our rejection of 2003 air
quality data that would take into
account current (at the time) emissions
reductions by Missouri and our
continued reliance on emissions data
from the NOX SIP Call in subjecting
Missouri to the NOX SIP Call
requirements. (See 69 FR 21262). We do
not believe that our response on this
issue is analogous primarily because the
Chicago, Illinois nonattainment area
that eastern Missouri was significantly
contributing to was still in
nonattainment at the time of
promulgation of the Phase II NOX SIP
Call rule. Thus, eastern Missouri
continued to meet the 1998 NOX SIP
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Call rule test for significant contribution
to downwind ‘‘nonattainment.’’ Again
this would not be the case with respect
to Georgia in this instance because both
Birmingham, Alabama and Memphis,
Tennessee had been designated as
attaining the 1-hour ozone standard
prior to promulgation of the Phase II
rule.
Further we disagree with the assertion
that this rulemaking amounts to
revisiting the question of whether
sources in northern Georgia are linked
to downwind nonattainment contrary to
our stated position that ‘‘we should not
revisit an otherwise sound rulemaking
just due to the passage of time.’’ Rather
as earlier stated we believe that their
clean air quality and our redesignation
of Birmingham, Alabama, and Memphis,
Tennessee nonattainment calls into
question the validity of our existing
determination that Georgia
‘‘significantly contributes to downwind
nonattainment’’ as construed in the NOX
SIP Call Rule. 63 FR 57376. Our
decision also comports with our earlier
statement that we intended to review
the NOX SIP Call rule to make necessary
adjustments. 63 FR 57428. Further, as
earlier stated, even if we concede and
agree with both comments that
Michigan does not require us to revisit
the inclusion of Georgia’s fine-grid
portion and that GCSEP’s petition raises
issues beyond the scope of the Phase II
NOX SIP Call rulemaking, we believe we
must be cognizant of the fact that
Memphis, Tennessee and Birmingham,
Alabama were no longer downwind
nonattainment receptors as
contemplated by the NOX SIP Call at the
time of the Phase II Rule. Both areas
achieved the 1-hour ozone standard
without the implementation of the NOX
SIP Call Rule in Georgia and thus, we
see no reason for Georgia’s continued
inclusion in the NOX SIP Call. Rather,
we believe that our continued
subjection of the State of Georgia to the
NOX SIP Call requirements could likely
be viewed as arbitrary and capricious
and not in accordance with the law in
light of the facts pertinent to the two
downwind receptors at the time of
promulgation of the Phase II NOX SIP
Call rule.
Comment: One commenter asserted
that our proposal was an attempt at
resurrecting the pre-1990 version of
CAA Section 110(a)(2)(D)(i). The
commenter noted that prior to the 1990
amendments, this section required the
elimination of emissions that ‘‘prevent
attainment or maintenance’’ of the
NAAQS by another State, while under
the 1990 amendments this section now
prohibits emissions that ‘‘contribute
significantly to nonattainment’’ in
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21533
another State. The commenter asserted
that under the proposed rule, EPA
seems to be applying the pre-1990
provision by concluding that if the
downwind State had attained, without
the assistance of one particular group of
upwind sources, then those sources
must not be part of the problem.
Response: We disagree. Under CAA
Section 110(a)(2)(D)(i)(I), SIPs must
contain provisions prohibiting amounts
of emissions ‘‘which will contribute
significantly to nonattainment’’ of an air
quality standard in a downwind state. In
the NOX SIP Call Rule we interpreted
the term ‘‘contribute significantly’’ by
explaining that:
The determination of significant
contribution includes both air quality factors
relating to amounts of upwind emissions and
their ambient impact downwind, as well as
cost factors relating to the costs of the
upwind emissions reductions. Once an
amount of emissions is identified in an
upwind State that contributes significantly to
a nonattainment problem downwind * * *
the SIP must include provisions to eliminate
that amount of emissions. 63 FR 57376
(October 27, 1998).
We also set out the multi-factor test
we applied in determining whether
emissions from an upwind state
‘‘contribute[s] significantly’’ to
downwind nonattainment. These factors
included:
[T]he overall nature of the ozone problem
(i.e., collective contribution’); The extent of
the downwind nonattainment problems to
which the upwind State’s emissions are
linked, including the ambient impact of
controls required under the CAA or
otherwise implemented in the downwind
areas; [and] [t]he ambient impact of the
emissions from the upwind State’s sources
on the downwind nonattainment problems.
Id.
In the June 8, 2007, proposal, we
explained that our inclusion of Georgia
in the NOX SIP Call was based on a
finding that emissions from northern
Georgia contributed significantly to
nonattainment of the one-hour ozone
standard by both Memphis, Tennessee
and Birmingham, Alabama. 72 FR
31774. We also explained that both
Memphis, Tennessee and Birmingham,
Alabama were designated as attainment
areas at the time of the Phase II NOX SIP
Call Rule. 72 FR 31774. Consequently,
today’s rulemaking reflects our belief
that emissions activities in Georgia no
longer meet both our determination of
‘‘significant contribution’’ and the
multi-factor test, which we made at
promulgation of the NOX SIP Call Rule
under the current section
110(a)(2)(D)(i)(I), and thus, that
emissions from northern Georgia can no
longer be identified as ‘‘contributing
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significantly’’ to downwind
nonattainment problems. Thus, Georgia
would not need NOX SIP Call provisions
to prevent any such contribution.
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B. Emissions Cap Comment
One commenter believed that our
non-inclusion of Georgia in the NOX SIP
Call Rule would result in EGUs located
in Georgia not being subject to an
emissions cap during ozone seasons,
and that the lack of a cap for sources
that would otherwise be subject to the
NOX SIP Call rule may impede the
ability of downwind states to maintain
attainment of the 1-hour ozone NAAQS.
Another commenter noted that EGUs are
subject to annual caps under the Clean
Air Interstate rule (CAIR), and that
Georgia rules require that any add-on
controls for CAIR compliance purposes
should be operational during the ozone
season.
Response: This action is based on the
fact that the attainment of the 1-hour
ozone standard and redesignation of
Birmingham, Alabama and Memphis,
Tennessee raises the question as to
‘‘whether the targeted ‘source’ or
‘emissions activity’ ‘contribute[s]
significantly to nonattainment’ in
another state.’’ It is also based on our
conclusion that emitting activities in
Georgia no longer ‘‘ ‘contribute[s]
significantly to nonattainment’ in
another state.’’ Although not a basis for
our action, EPA notes, after reviewing
the current Georgia regulations, that by
adopting stringent requirements for EGU
NOX emissions in the SIP Georgia has
effectively capped EGUs emissions at
levels that are more stringent than
would be achieved by implementing the
NOX SIP Call requirements.
With regard to the comment that the
absence of a cap for sources in Georgia
may impede the ability of downwind
maintenance of the 1-hour ozone
standard, see our earlier response, in
Section III.A above, on our authority to
regulate emissions activity that interfere
with the maintenance of the 1-hour
ozone standard.
C. Comparison With the Atlanta State
Implementation Plan
We also received comments on our
analysis and conclusion at proposal that
NOX emissions controls under current
and anticipated Atlanta SIP
requirements would ensure equivalent
or better levels of NOX emissions than
would be achieved under the NOX SIP
Call. 72 FR 31775–76. Comments
addressed the degree of reductions from
the Atlanta SIP in comparison to the
emissions reductions assumed in the
NOX SIP Call budgets for: EGUs, nonEGU boilers, cement kilns and IC
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engines, as well as emissions from other
categories not included within the NOX
SIP Call.
Comment: One commenter believed
that EGUs requirements in the Atlanta
SIP were less stringent than the levels
assumed in the NOX SIP Call budgets.
This commenter noted that the NOX SIP
Call Rule was based on an average level
of 0.15 pounds NOX per million BTU for
EGUs, while the 1999 Atlanta SIP was
based on a level of an average of 0.20
pounds NOX per million BTU.
Moreover, the commenter noted that our
calculations did not take into
consideration Georgia’s 60 counties that
would have been subject to the Phase II
NOX SIP Call rule that are not all
addressed by the Atlanta SIP.
Other commenters believed that the
emissions reductions for EGUs that
would be achieved by the 1999 and
subsequent Atlanta SIP requirements
exceeded the requirements of the NOX
SIP Call rule. One commenter noted that
emissions by 27 of the 28 EGUs that
would be covered by the NOX SIP Call
rule are limited by the 1999 Atlanta SIP
requirements, and that only 4 percent of
the total EGUs NOX emissions for the
2006 ozone season are emitted by the
sole EGU that is not covered by those
requirements. The commenter did agree
that the 27 units covered under the 1999
Atlanta SIP were subject to an overall
average limit of 0.20 pounds per million
BTU. The commenter further stated that
19 of the 27 EGUs were required to meet
0.13 pounds per million BTU during the
ozone season beginning May 1, 2003, or
one year earlier than the NOX SIP Call
requirements, which were effective with
the 2004 ozone season.
Several commenters noted that, based
on a review of our calculations, the
overall actual NOX emissions for the
2003–2006 time period, and taking into
account early reduction allowances that
EGUs subject to 0.13 pounds per million
BTU limits would have earned, Georgia
would not only have complied with the
NOX SIP Call for this time period, but
could have maintained 4027 tons of
banked excess allowances as of the end
of the 2006 ozone season. This estimate
was based on (1) calculations by
Georgia, under the NOX SIP Call trading
program at 40 CFR part 96, showing that
EGUs allocations would have been
29,416 tons per year in addition to the
compliance supplement pool (CSP)
allowance of 10,728 tons in 2004, or in
sum, 98,976 tons from 2004 through
2006 ozone seasons; (2) actual EGUs
NOX emissions of 24,966, 35,272, and
34,711 tons, respectively, for the 2004
through 2006 ozone seasons. (The
commenter attributed these numbers to
the Agency’s Clean Air Market
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Division’s Web site.) This would result
in a total of 94,949 tons for the 2004–
2006 ozone seasons; and (3) a
comparison of the NOX SIP Call
allocations of 98,976 tons with the
94,949 tons of actual emissions to
determine that actual emissions were
4,027 tons less than would have been
allocated under the NOX SIP Call
trading program. The commenters noted
that, were Georgia in the NOX SIP Call
rule, Georgia could have sold these
allowances, and that this would have
likely resulted in NOX emissions
increases from sources in other States.
One commenter also noted that the
Atlanta SIP requires both limits that are
to be met on a 30 day rolling average,
which is more restrictive than the
seasonal budgets identified in the NOX
SIP Call trading program, and a
stringent cap on EGUs emissions
because the limits cannot be complied
with by purchasing allowances.
Response: As earlier stated, in the
June 8, 2007, proposal we explained
that our inclusion of the State of Georgia
in the NOX SIP Call was based on our
definition of ‘‘nonattainment’’ and
determination of ‘‘significant
contribution to downwind
nonattainment’’ as articulated in the
1998 NOX SIP Call rule. 72 FR 31773.
Based on this definition and
determination we found that emissions
activities from northern Georgia
contributed significantly to
nonattainment of the one-hour ozone
standard in both Memphis, Tennessee
and Birmingham, Alabama. 72 FR
31774. We also explained that both
Memphis, Tennessee and Birmingham,
Alabama were designated as attainment
areas at the time of the Phase II NOX SIP
Call Rule. 72 FR 31774. Consequently,
this rulemaking reflects our belief that
emissions activities in Georgia did not
meet the 1998 NOX SIP Call rule
definition and determination at the time
of the Phase II NOX SIP Call Rule and
thus, that emissions from northern
Georgia can no longer be identified as
‘‘contributing significantly’’ to
downwind nonattainment problems.
Nonetheless, we note that the
compliance date for Phase II NOX SIP
Call Rule was May 31, 2007, instead of
May 31, 2004, assumed by the above
calculations. We also note that these
calculations strongly support our
conclusion that existing requirements
under the Atlanta SIP result in NOX
emissions reductions which are more
stringent than the NOX SIP call.
Comment: One commenter believed
that the appropriate basis for
comparison between the Atlanta SIP
and the NOX SIP Call budgets should
not be 2004, but rather 2007 and
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subsequent years. Because the NOX SIP
Call is based upon achieving the 2007
NOX SIP Call budget, the better analysis
would be to assess whether sources in
northern Georgia are modeled to achieve
the 2007 NOX SIP Call budget. The
commenter stated that we had not made
this showing. The commenter also
stated that our documentation in the
proposal did not clearly address future
reductions from EGUs and other
sources. (72 FR 31776). The commenter
asserted that our predicted EGUs
reductions based upon the Integrated
Planning Model (IPM) are also
indeterminate.
Other commenters supported EPA’s
view that existing and future Atlanta
SIP requirements would result in a
future trend towards decreasing EGU
NOX emissions. One commenter noted
that in February 2007 (effective May 1,
2007), EGUs requirements, under the
Atlanta SIP, became more stringent
because the applicable average limits
changed from 0.20 to 0.18 lbs/MMBTU.
Additionally, the Georgia
‘‘multipollutant’’ rule would require the
installation of 12 additional selective
catalytic reduction (SCR) units between
2008 and 2015. The commenter also
noted that Georgia Power has submitted
an application to retire two coal-fired
units in the Atlanta area and replace
them with lower-emitting natural gas
combined-cycle units.
Response: As explained earlier, we
are determining that Georgia no longer
meets the ‘‘significant contribution’’ test
articulated in the 1998 NOX SIP Call
rule because both Memphis and
Birmingham were in attainment at the
time of the Phase II NOX SIP Call rule.
Nevertheless, after reviewing the
available information, EPA finds ample
evidence to note that beginning with the
2007 ozone season, NOX emissions in
northern Georgia will be less than
assumed by the NOX SIP Call budgets.
Because, as noted in comments, Georgia
NOX requirements for the SIP are
becoming more stringent over time,
emissions for 2007 and subsequent
years would likely result in even more
favorable comparisons for the Georgia
SIP requirements relative to the NOX
SIP Call rule. This assessment is not
based on what the commenter terms as
‘‘indeterminate’’ predictions of the IPM
model, but rather on the enforceable
requirements of the Atlanta SIP.
Comment: Two commenters also
noted that, under the Atlanta SIP, NOX
emissions reductions for IC engines and
cement kilns are significantly beyond
the NOX SIP Call rule reductions. The
commenters stated that these additional
reductions were achieved as a result of
the Georgia RACT rules for fuel burning
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equipment, stationary turbines,
stationary engines, large gas turbines,
and small fuel burning equipment. One
commenter noted that non-EGUs boilers
(i.e., greater than 250 Million BTU/hour)
might have become small-scale net
purchasers of allowances under the
Phase II NOX SIP Call rule due to the
absence of controls at the levels
assumed in setting the NOX SIP Call
budgets. Nonetheless, the commenter
believed that the additional reductions
from other sources would more than
offset those purchases, and would not
affect the finding that Georgia would
have been a net exporter of NOX
emissions allowances under the Phase II
NOX SIP Call rule.
One commenter expressed concerns
that reductions from other (non-EGUs)
sources were not well documented in
the proposal, and that they may be at
least already partially included in the
calculations for the comparison of
reductions between the Atlanta SIP and
Phase II NOX SIP Call rule.
Response: As explained earlier, we
are determining that Georgia no longer
meets the ‘‘significant contribution’’ test
articulated in the 1998 NOX SIP Call
Rule because both Memphis and
Birmingham attained the 1-hour ozone
standard and were redesignated at the
time we promulgated the Phase II NOX
SIP Call rule. Nonetheless, EPA notes
that documentation provided by
commenters for the non-EGUs measures
in the Georgia SIP would appear to
support the assertion that Georgia
would have been a likely net exporter of
allowances under the NOX SIP call rule.
D. Other Issues
Comment: One commenter opposed
EPA’s proposed rule, and recommended
that not only should Georgia be
included in the NOX SIP Call rule, but
should also be responsible for NOX
emissions reductions under the rule.
The commenter noted that NOX
emissions are contributors to smog, and
that Atlanta suffers from urban sprawl
with no incentive to keep growth within
city limits.
Response: EPA agrees with the
commenter that NOX is an important
contributor to air pollution in Georgia,
and that Georgia may need further NOX
reductions in order to meet applicable
ozone standards. This rule, however,
reflects a determination that at the time
of promulgation of the Phase II NOX SIP
Call rule, emissions activities from
sources in Georgia were no longer
significantly contributing to downwind
nonattainment in other States. Thus, it
is not appropriate for EPA to impose
NOX reductions requirements in Georgia
under the SIP Call.
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Comment: One commenter believed
that the proposed action encourages
parties to hinder rulemakings in hopes
that new circumstances will provide a
technical basis for a reprieve.
Response: EPA disagrees. We believe
we are acting appropriately based on the
facts at the time of the Phase II NOX SIP
Call rulemaking. Moreover, any delay in
finalizing the Phase II NOX SIP Call
Rule did not contribute to adverse air
quality in Birmingham and Memphis
because these areas were able to attain
the 1-hour standard in the intervening
period. EPA also notes that during this
intervening period, the Agency had to
juggle competing rulemaking demands
on our limited scientific and legal staff.
Comment: Two commenters
expressed the concern that including
Georgia in the NOX SIP call would
impose resource expenditures without
significant NOX emissions reductions.
One commenter cited concerns over
resource expenditures for (1) non-EGUs
compliance with 40 CFR part 75
monitoring, (2) EGUs recordkeeping in
addition to acid rain and CAIR, (3)
Georgia SIP obligations, and (4) EPA
tracking of ozone season allocations.
The other commenter expressed
concerns that imposition of the NOX SIP
Call would require Georgia to conduct a
lengthy and expensive rulemaking
process and would divert limited state
resources from other efforts such as
eight-hour ozone SIPs, PM2.5 SIPs, and
regional haze SIPs.
Response: EPA generally agrees that
these resource considerations support
the proposed rule.
Comment: One commenter noted that
numerous modeling studies have
assumed full implementation of the
NOX SIP Call in all affected States
including Georgia. Thus, the commenter
argues, if Georgia does not implement
the SIP Call, all of these modeling
analyses would be incorrect.
Response: The commenter appears to
assume, without providing any support,
that not including Georgia in the NOX
SIP Call Rule would result in future
emissions being greater than those used
as inputs to previous modeling studies,
and that those increased emissions
would lead to increases in modeled
estimates of ozone concentrations. This
assumption is incorrect. As noted in the
preamble to the proposed rule (72 FR
31775–31776) and as discussed above,
EPA has determined that future NOX
emissions from Georgia, because of
Atlanta SIP requirements, would most
likely be less than the emissions that
were projected to occur from
implementation of the NOX SIP Call rule
by Georgia. In other words, the emission
levels required by the Georgia SIP are
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lower than those that would have
occurred from implementation of the
NOX SIP Call in Georgia. Thus, any
assumption regarding Georgia’s
participation in the NOX SIP Call would
likely not have affected estimates of
Georgia emissions in various modeling
analyses. For these reasons, we can
conclude that the removal of Georgia
from the NOX SIP Call would not be
expected to impact modeling inputs or
results of the modeling studies.
Comment: One commenter noted that
the commenter’s problem with EPA’s
proposed rule was compounded by
exclusion of Georgia from the seasonal
CAIR program. The commenter further
stated that Georgia is the only state out
of 22 states east of the Mississippi
subject to CAIR that is not otherwise
subject to the CAIR summertime NOX
program.
Response: We disagree. Georgia is
subject to both annual emissions
budgets for NOX under CAIR, and
stringent requirements under the 1999
and subsequent Atlanta SIP
requirements. In addition, as noted by
commenters, Georgia SIP rules require
that controls installed for purposes of
meeting annual CAIR requirements
must be operated during the ozone
season. In sum, we believe that all these
requirements will assure substantial
reductions in summertime NOX
emissions in Georgia. See also 72 FR
31775–56.
Comment: One commenter noted that
EPA did find in its original analysis for
the NOX SIP Call rule that the NOX
emissions in Georgia significantly
contributed to 8-hour ozone
nonattainment areas in 10 downwind
States, including Alabama. The
commenter was also cognizant of the
stay of the findings of the NOX SIP Call
rule as it relates to the 8-hour ozone
standard. Thus this commenter
recommended that Georgia should not
be removed from the Phase II NOX SIP
Call rule.
Another commenter expressed
concerns that Georgia sources do not
have summertime NOX emissions caps
despite significant contributions to 8hour ozone levels.
Response: This comment and any
other comments on the 8-hour basis of
the NOX SIP Call rule are beyond the
scope of the proposed rule. The stay of
effectiveness of the 8-hour basis for the
NOX SIP Call continues, and the
proposed rule neither addressed nor
reopened any issues relating to the 8hour basis for the NOX SIP Call rule. 72
FR 31774.
EPA notes, however, that as stated
above, Georgia is subject to annual
emissions budgets for NOX under CAIR,
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that controls installed for purposes of
meeting annual CAIR requirements
must be operated during the ozone
season in Georgia, and that the Georgia
SIP requirements designed to achieve
emission reductions aimed at
addressing 8-hour ozone nonattainment
in Atlanta will assure that stringent
levels of NOX emissions will be met. As
noted earlier above, these levels are
more stringent than required by the NOX
SIP Call budgets.
Comment: One commenter noted that
certain controls in Georgia were
installed a year earlier than similar
requirements in North Carolina, and the
average pounds/million BTU emissions
rate is lower in Georgia than in North
Carolina or Alabama.
Response: This comment is beyond
the scope of the proposed rule.
V. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
This action is not a ‘‘significant
regulatory action’’ under the terms of
Executive Order (EO) 12866 (58 FR
51735, October 4, 1993) and is therefore
not subject to review under the EO. This
action grants a petition for
reconsideration and removes the State
of Georgia from the NOX SIP Call Rule.
It does not impose any requirement on
regulated entities.
B. Paperwork Reduction Act
This action does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq., because the
action removes a regulatory
requirement.
Burden means the total time, effort, or
financial resources expended by persons
to generate, maintain, retain, or disclose
or provide information to or for a
Federal agency. This includes the time
needed to review instructions; develop,
acquire, install, and utilize technology
and systems for the purposes of
collecting, validating, and verifying
information, processing and
maintaining information, and disclosing
and providing information; adjust the
existing ways to comply with any
previously applicable instructions and
requirements; train personnel to be able
to respond to a collection of
information; search data sources;
complete and review the collection of
information; and transmit or otherwise
disclose the information.
An agency may not conduct or
sponsor, and a person is not required to
respond to a collection of information
unless it displays a currently valid OMB
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control number. The OMB control
numbers for EPA’s regulations in 40
CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act (RFA)
The Regulatory Flexibility Act (RFA)
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements under the
Administrative Procedures Act or any
other statute unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small
organizations, and small governmental
jurisdictions.
For purposes of assessing the impacts
of this final rule on small entities, small
entity is defined as: (1) A small business
as defined in the Small Business
Administration’s (SBA) regulations at 13
CFR 12.201; (2) a small governmental
jurisdiction that is a government of a
city, county, town, school district or
special district with a population of less
than 50,000; and (3) a small
organization that is any not-for-profit
enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impacts of this final rule on small
entities, I certify that this action will not
have a significant economic impact on
a substantial number of small entities.
In determining whether a rule has a
significant economic impact on a
substantial number of small entities, the
impact of concern is any significant
adverse economic impact on small
entities, since the primary purpose of
the regulatory flexibility analyses is to
identify and address regulatory
alternatives ‘‘which minimize any
significant economic impact of the rule
on small entities.’’ 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule
will not have a significant economic
impact on a substantial number of small
entities if the rule relieves regulatory
burden, or otherwise has a positive
economic effect on all of the small
entities subject to the rule.
This action grants a petition for
reconsideration and removes the State
of Georgia from the NOX SIP Call Rule
and therefore, is not expected to have a
significant economic impact on a
substantial number of small entities.
This action neither imposes
requirements on small entities, nor is it
expected that there will be impacts on
small entities beyond those, if any,
required by or resulting from the NOX
SIP Call and the Section 126 Rules.
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D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104–4, establishes requirements for
Federal agencies to assess the effects of
their regulatory actions on State, local,
and Tribal governments and the private
sector. Under Section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for any proposed or final rules
with ‘‘Federal mandates’’ that may
result in the expenditure to State, local,
and Tribal governments, in the
aggregate, or by the private sector, of
$100 million or more in any 1 year.
Before promulgating a rule for which a
written statement is needed, Section 205
of the UMRA generally requires EPA to
identify and consider a reasonable
number of regulatory alternatives and
adopt the least costly, most costeffective or least burdensome alternative
that achieves the objectives of the rule.
The provisions of Section 205 do not
apply when they are inconsistent with
applicable law. Moreover, Section 205
allows EPA to adopt an alternative other
than the least costly, most cost-effective
or least burdensome alternative if the
Administrator publishes with the final
rule an explanation why that alternative
was not adopted. Before EPA establishes
any regulatory requirements that may
significantly or uniquely affect small
governments, including Tribal
governments, it must have developed
under Section 203 of the UMRA a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, enabling
officials of affected small governments
to have meaningful and timely input in
the development of EPA regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising
small governments on compliance with
the regulatory requirements.
This rule contains no Federal
mandates (under the regulatory
provisions of Title II of the UMRA) for
State, local, or Tribal governments or
the private sector. The EPA prepared a
statement for the final NOX SIP Call that
would be required by UMRA if its
statutory provisions applied. This action
does not create any additional
requirements beyond those of the final
NOX SIP Call, and will actually reduce
the requirements by excluding the State
of Georgia, and therefore no further
UMRA analysis is needed.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255, August 10,
1999), requires EPA to develop an
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15:18 Apr 21, 2008
Jkt 214001
accountable process to ensure
meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications. ‘‘Policies that have
federalism implications’’ is defined in
the Executive Order to include
regulations that have ‘‘substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.’’
This rule does not have federalism
implications. It will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. This action does
not impose an enforceable duty on these
entities. This action imposes no
additional burdens beyond those
imposed by the final NOX SIP Call.
Thus, Executive Order 13132 does not
apply to this rule.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175, entitled
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (65 FR
67249, November 9, 2000), requires EPA
to develop an accountable process to
ensure ‘‘meaningful and timely input by
tribal officials in the development of
regulatory policies that have tribal
implications.’’ This rule does not have
Tribal implications, as specified in
Executive Order 13175.
It will not have substantial direct
effects on Tribal governments, on the
relationship between the Federal
government and Indian Tribes, or on the
distribution of power and
responsibilities between the Federal
government and Indian Tribes, as
specified in Executive Order 13175.
This action does not significantly or
uniquely affect the communities of
Indian Tribal governments. The EPA
stated in the final NOX SIP Call Rule
that Executive Order 13084 did not
apply because that final rule does not
significantly or uniquely affect the
communities of Indian Tribal
governments or call on States to regulate
NOX sources located on Tribal lands.
The same is true of this action. Thus,
Executive Order 13175 does not apply
to this rule.
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21537
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
Executive Order 13045: ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997) applies to any rule that
(1) is determined to be ‘‘economically
significant’’ as defined under Executive
Order 12866, and (2) concerns an
environmental health or safety risk that
EPA has reason to believe may have a
disproportionate effect on children. If
the regulatory action meets both criteria,
the Agency must evaluate the
environmental health or safety effects of
the planned rule on children, and
explain why the planned regulation is
preferable to other potentially effective
and reasonably feasible alternatives
considered by the Agency.
This rule is not subject to the
Executive Order because it is not
economically significant as defined in
Executive Order 12866, and because the
Agency does not have reason to believe
the environmental health or safety risks
addressed by this action present a
disproportionate risk to children. This
action does not impose requirements
beyond those, if any, required by or
resulting from the NOX SIP Call and
Section 126 Rules.
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This rule is not a ‘‘significant energy
action’’ as defined in Executive Order
13211, ‘‘Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355 (May
22, 2001)) because it is not likely to
have a significant adverse effect on the
supply, distribution, or use of energy.
Further, we have concluded that this
rule is not likely to have any adverse
energy effects.
I. National Technology Transfer
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law No.
104–113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.,
materials specifications, test methods,
sampling procedures, and business
practices) that are developed or adopted
by voluntary consensus standards
bodies. The NTTAA directs EPA to
provide Congress, through OMB,
explanations when the Agency decides
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not to use available and applicable
voluntary consensus standards. This
rulemaking does not involve technical
standards, therefore, EPA is not
considering the use of any voluntary
consensus standards.
J. Executive Order 12898: Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order (EO) 12898 (59 FR
7629 (Feb. 16, 1994)) establishes federal
executive policy on environmental
justice. Its main provision directs
federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this rule will
not have disproportionately high and
adverse human health or environmental
effects on minority or low-income
populations because it does not affect
the level of protection provided to
human health or the environment. For
the final NOX SIP Call rule, the Agency
conducted a general analysis of the
potential changes in ozone and
particulate matter levels that may be
experienced by minority and lowincome populations as a result of the
requirements of that rule. These
findings were presented in the RIA for
the NOX SIP Call. This action does not
affect this analysis.
ebenthall on PRODPC60 with RULES
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. The EPA will
submit a report containing this rule and
other required information to the U.S.
Senate, the U.S. House of
Representatives, and the Comptroller
General of the United States prior to
publication of the rule in the Federal
Register. A major rule cannot take effect
until 60 days after it is published in the
Federal Register. This action is not a
‘‘major rule’’ as defined by 5 U.S.C.
804(2). This rule will be effective May
22, 2008.
15:18 Apr 21, 2008
Jkt 214001
List of Subjects in 40 CFR Part 51
Environmental protection,
Administrative practice and procedure,
Air pollution control, Intergovernmental
relations, Ozone, Reporting and
recordkeeping requirements.
Dated: April 16, 2008.
Stephen L. Johnson,
Administrator.
For the reasons set forth in the
preamble, part 51 of chapter I of title 40
of the Code of Federal Regulations is
amended as follows:
I
PART 51—REQUIREMENTS FOR
PREPARATION, ADOPTION AND
SUBMITTAL OF IMPLEMENTATION
PLANS
1. The authority citation for part 51
continues to read as follows:
I
Authority: 23 U.S.C. 101; 42 U.S.C. 7401–
7671q.
Subpart G—Control Strategy
2. Section 51.121 is amended as
follows:
I a. By revising paragraph (c)(2).
I b. By removing the entry for
‘‘Georgia’’ from the tables in paragraphs
(e)(2)(i), (e)(4)(iii) and (g)(2)(ii).
I c. By removing and reserving
paragraph (e)(2)(ii)(C).
I d. By removing paragraph (s).
I
K. Congressional Review Act
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L. Judicial Review
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the District of
Columbia Circuit by June 23, 2008.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of this rule for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review must be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements. See CAA
Section 307(b)(2).
§ 51.121 Findings and requirements for
submission of State implementation plan
revisions relating to emissions of oxides of
nitrogen.
*
*
*
*
*
(c) * * *
(2) With respect to the 1-hour ozone
NAAQS, the portions of Missouri,
Michigan, and Alabama within the fine
grid of the OTAG modeling domain. The
fine grid is the area encompassed by a
box with the following geographic
coordinates: Southwest Corner, 92
degrees West longitude and 32 degrees
North latitude; and Northeast Corner,
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69.5 degrees West longitude and 44
degrees North latitude.
*
*
*
*
*
[FR Doc. E8–8673 Filed 4–21–08; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2007–1009; FRL–8555–4]
Approval and Promulgation of Air
Quality Implementation Plans;
Delaware; Transportation Conformity
Regulations
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
SUMMARY: EPA is approving a State
Implementation Plan (SIP) revision
submitted by the State of Delaware. This
revision establishes the State’s
transportation conformity requirements.
The intended effect of this action is to
approve the State regulations which will
govern transportation conformity
determinations in the State of Delaware.
DATES: Effective Date: This final rule is
effective on May 22, 2008.
ADDRESSES: EPA has established a
docket for this action under Docket ID
Number EPA–R03–OAR–2007–1009. All
documents in the docket are listed in
the www.regulations.gov Web site.
Although listed in the electronic docket,
some information is not publicly
available, i.e., confidential business
information (CBI) or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
www.regulations.gov or in hard copy for
public inspection during normal
business hours at the Air Protection
Division, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
Copies of the State submittal are
available at the Delaware Department of
Natural Resources & Environmental
Control, 89 Kings Highway, P.O. Box
1401, Dover, Delaware 19903.
FOR FURTHER INFORMATION CONTACT:
Martin Kotsch, (215) 814–3335, or by
e-mail at kotsch.martin@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On November 7, 2007 (72 FR 62807),
EPA published a notice of proposed
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]]>Agencies
[Federal Register Volume 73, Number 78 (Tuesday, April 22, 2008)]
[Rules and Regulations]
[Pages 21528-21538]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-8673]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 51
[EPA-HQ-OAR-2004-0439, FRL-8556-2]
RIN 2060-AN12
Petition for Reconsideration and Withdrawal of Findings of
Significant Contribution and Rulemaking for Georgia for Purposes of
Reducing Ozone Interstate Transport
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this action, EPA is amending a final rule it issued under
Section 110 of the Clean Air Act (CAA) related to the transport of
nitrogen oxides (NOX). On April 21, 2004, we issued a final
rule (Phase II NOX SIP Call Rule) that required the State of
Georgia (Georgia) to submit revisions to its State Implementation Plan
(SIP) to include provisions that prohibit specified amounts of
NOX emissions--one of the precursors to ozone (smog)
pollution--for the purposes of reducing NOX and ozone
transport across State boundaries in the eastern half of the United
States. This rule became effective on June 21, 2004.
Subsequently, the Georgia Coalition for Sound Environmental Policy
(GCSEP
[[Page 21529]]
or Petitioners) filed a Petition for Reconsideration requesting that
EPA reconsider the applicability of the NOX SIP Call Rule to
Georgia.
In response to this Petition, and based upon review of additional
available information, EPA proposed to remove Georgia from the
NOX SIP Call Rule. (June 8, 2007). Specifically, EPA
proposed to rescind the applicability of the requirements of the Phase
II NOX SIP Call Rule to Georgia, only. Six parties commented
on the proposed rule. No requests were made to hold a public hearing.
After considering these comments, EPA is issuing a final rule as
proposed.
DATES: This final rule is effective on May 22, 2008.
ADDRESSES: The EPA has established a docket for this action, identified
by Docket ID No. EPA-HQ-OAR-2005-0439. All documents in the docket are
listed in the https://www.regulations.gov index. Although listed in the
index, some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available either
electronically in https://www.regulations.gov or in hard copy at the Air
Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW.,
Washington, DC. This Docket Facility is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is (202) 566-1744, and the telephone
number for the Air Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Tim Smith, Air Quality Policy
Division, Geographic Strategies Group, (C539-04), Environmental
Protection Agency, Research Triangle Park, NC 27711, telephone (919)
541-4718, e-mail smith.tim@epa.gov. For legal questions, please contact
Winifred Okoye, U.S. EPA, Office of General Counsel, Mail Code 2344A,
1200 Pennsylvania Avenue, NW., Washington, DC 20460, telephone (202)
564-5446, e-mail at okoye.winifred@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
This action removes the applicability of certain requirements
related to NOX emissions in Georgia. If these requirements
were not removed, they would potentially affect electric utilities,
cement manufacturing, and industries employing large stationary source
internal combustion engines.
B. How Is This Preamble Organized?
The information presented in this preamble is organized as follows:
I. General Information
A. Does This Action Apply to Me?
B. How Is This Preamble Organized?
II. Background
A. Background on NOX SIP Call Rule, Subsequent
Litigation and Rulemaking Related to Georgia
B. GCSEP Requests Related to Phase II NOX SIP Call
Rule
III. Proposed Response to GCSEP's Petition for Reconsideration
A. Proposed Action
B. Rationale for Proposed Action
C. Final Action
IV. Response to Comments on Proposal
A. Legal Rationale
B. Emissions Cap
C. Comparison With the Atlanta State Implementation Plan
D. Other Issues
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
L. Judicial Review
II. Background
A. Background on NOX SIP Call, Subsequent Litigation and Rulemaking
Related to Georgia
On October 27, 1998, EPA took final action to prohibit specified
amounts of emissions of oxides of NOX, one of the main
precursors of ground-level ozone, from being transported across State
boundaries in the eastern half of the United States. (The
NOX SIP Call Rule) (63 FR 57356), (October 27, 1998). We
found that sources and emitting activities in 22 States and the
District of Columbia (23 States) \1\ were emitting NOX in
amounts that significantly contribute to downwind nonattainment of the
1-hour ozone national ambient air quality standard (NAAQS or standard).
(63 FR 57356). We also determined separately that sources and emitting
activities in these 23 States were emitting NOX in amounts
that significantly contribute to and interfere with maintenance of
downwind nonattainment of the 8-hour ozone NAAQS (63 FR 57358, 57379).
To determine significant contribution, we examined both the air quality
impacts of emissions and the amount of reductions that could be
achieved through the application of highly cost-effective controls. The
air quality impacts portion of our significant contribution analysis
relied on state specific modeling, and modeling and recommendations by
the Ozone Transport Assessment Group (OTAG) 62 FR 60335 (November 7,
1997), and 63 FR 57381-57399.
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\1\ The 23 States were Alabama, Connecticut, Delaware, District
of Columbia, Georgia, Illinois, Indiana, Kentucky, Maryland,
Massachusetts, Michigan, Missouri, North Carolina, New Jersey, New
York, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee,
Virginia, West Virginia, and Wisconsin (63 FR 57394).
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This analysis examined the impact of upwind emissions on downwind
nonattainment areas. We explained that a downwind area should be
considered,
``nonattainment,'' for purposes of section 110(a)(2)(D)(i)(I), under
the 1-hour ozone NAAQS if the area (as of 1994-96 time period) had
nonattainment air quality and if the area was modeled to have
nonattainment air quality in the year 2007, after implementation of
all measures specifically required of the area under the CAA as well
as implementation of Federal measures required or expected to be
implemented by that date.
63 FR 57386; See also 63 FR 57373-75; 62 FR 60324-25. We also explained
that ``nonattainment [area] includes areas that have monitored
violations of the standard and areas that `contribute to ambient air
quality in a nearby area' that is violating the standard.'' 63 FR
57373. Thus, to qualify as a downwind nonattainment receptor, an area
had to be both in current nonattainment and also modeled to have
nonattainment air quality in 2007. An area shown to be in attainment at
either time was not considered a downwind receptor. 63 FR 57371, 73-75,
57382-83. See also 63 FR 57385-87 for our discussion on the
determination of downwind nonattainment receptors.
Further, we assessed each upwind State's contribution to 1-hour
standard downwind nonattainment independent of the State's contribution
to 8-hour standard nonattainment. 62 FR 60326; 63 FR 57377 and 57395.
We determined and concluded that the level of NOX emissions
reductions necessary to address the significant contribution for the 8-
hour NAAQS would be achieved using the same control measures as
required for the 1-hour standard (63 FR
[[Page 21530]]
57446). Therefore, we promulgated only one NOX emissions
budget for each of the affected upwind States (63 FR 57439). Further,
we required these States to submit revised SIPs, prohibiting those
amounts of NOX emissions such that any remaining emissions
would not exceed the level specified in the NOX SIP Call
regulations for that State in 2007. 62 FR 60364-5; 63 FR 57378 and
57426.
With regard to Georgia, we determined that sources and emitting
activities in Georgia were significantly contributing to 1-hour
standard nonattainment in Birmingham, Alabama and Memphis, Tennessee
(63 FR 57394). At the time the NOX SIP Call Rule was being
developed, monitored air quality data for 1994-1996 indicated that
Memphis, Tennessee had nonattainment air quality \2\ although we had
redesignated the Memphis, Tennessee nonattainment area as an attainment
area in 1995.\3\ 60 FR 3352 (January 17, 1995). Further, Birmingham,
Alabama was a designated nonattainment area for the 1-hour ozone NAAQS
at the time of promulgation of the NOX SIP Call rule. In
addition, the modeling done at that time showed that the Memphis and
Birmingham areas were modeled to have nonattainment air quality for the
1-hr standard in the year 2007. Thus, at that time Memphis, Tennessee
and Birmingham, Alabama were ``nonattainment'' for purposes of the
NOX SIP Call Rule.
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\2\ Monitored air quality data indicated that the Memphis,
Tennessee nonattainment area had nonattainment air quality from 1994
through 2000. Since 2001, the Memphis, Tennessee nonattainment area
has had monitored attainment air quality data.
\3\ In the NOX SIP Call Rule, we relied on the
designated area solely as a proxy to determine which areas have air
quality in nonattainment. ``Our reliance on designated nonattainment
areas for purposes of the 1-hour NAAQS does not indicate that the
reference in section 110(a)(2(D)(i)(I) to `nonattainment' should be
interpreted to refer to areas designated nonattainment.'' 63 FR
57375 n.25.
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A number of parties, including certain States as well as industry
and labor groups, challenged the NOX SIP Call Rule.
Specifically, Georgia and Missouri industry petitioners, citing the
OTAG modeling and recommendations, maintained that EPA had record
support for the inclusion of only the eastern part of the state of
Missouri (Missouri), and northern Georgia as contributing significantly
to downwind nonattainment. The United States Court of Appeals for the
District of Columbia (D.C. Circuit or Court), upheld our findings of
significant contribution for almost all jurisdictions covered by the
NOX SIP Call, with respect to the 1-hour standard \4\ but
vacated and remanded the inclusion of Georgia and Missouri, Michigan v.
EPA, 213 F. 3d 663 (D.C. Cir. 2000), cert. denied, 121 S. Ct. 1225
(2001) (Michigan). The Court agreed with the litigants that only the
eastern portion of Missouri and northern portion of Georgia were within
the geographic area for photochemical modeling known as the ``fine
grid,'' and thus, that the record for the rulemaking supported only
including those portions of the two States.\5\
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\4\ In light of various challenges to the 8-hour standard, we
stayed the 8-hour basis for the NOX SIP Call rule
indefinitely. (65 FR 56245), (September 18, 2000).
\5\ As the Court stated, ``[a]ccordingly, they say the
NOX Budget for Missouri and Georgia should be based
solely on those emissions.'' 213 F.3d at 684.
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Subsequently, in response to the Court decision in Michigan, we
proposed (in what is known as the ``Phase II NOX SIP Call
rule''), the inclusion of only the fine grid parts of Georgia and
Missouri in the NOX SIP Call with respect to the 1-hour
standard only. (67 FR 8396, (February 22, 2002)). We also proposed
revised NOX budgets for Georgia and Missouri that would
include only the fine grid portions of these States. On April 21, 2004,
we finalized the Phase II NOX SIP Call rule. This rule
included eastern Missouri and northern Georgia as proposed, allocated
revised NOX budgets that reflected the inclusion of sources
in only these areas, and set revised SIP submittal and full compliance
dates of April 1, 2005 and May 1, 2007, respectively. 69 FR 21604,
(April 21, 2004).
B. GCSEP Requests Related to Phase II NOX SIP Call Rule
After our promulgation of the Phase II NOX SIP Call
rule, GCSEP, on June 16, 2004, took several legal actions: (1) A
request that EPA reconsider the rulemaking in light of new information
(2) a request that EPA stay the effectiveness of the rule pending a
review of that information, and (3) a formal challenge to the rule in
Federal Courts.
Petition for Reconsideration. GCSEP requested that EPA ``convene a
proceeding for reconsideration of the rule,'' under section
307(d)(7)(B) of the Act. (Petition for Reconsideration, June 16, 2004)
(Petition.) GCSEP made this request based on assertions that:
--Certain events occurred after the close of the notice and comment
period on our February 22, 2002, proposal (that is, these events
occurred after April 15, 2002), and
--EPA needed to reopen the rule for public notice and comment on those
specific events.
GCSEP asserted that it ``was impracticable to raise [its] objection
within [the provided comment period] or [that] the grounds for [its]
objection arose after the public comment period (but within the time
specified for judicial review).'' CAA Section 307(d)(7)(B). In
addition, GCSEP further asserted that its objection was ``of central
relevance to the outcome of the rule.'' CAA Section 307(d)(7)(B).
Request for Stay of Effectiveness. GCSEP also requested an
administrative stay of the effectiveness of the Phase II NOX
SIP Call Rule as it relates to Georgia only. The stay would delay the
applicability of Phase II NOX SIP Call requirements to
Georgia during the period EPA would conduct notice-and-comment
rulemaking to address the issues raised in the Petition. On March 1,
2005, EPA proposed to stay the effectiveness of the Phase II
NOX SIP Call Rule, as requested by GCSEP, as to Georgia
only. (70 FR 9897, (March 1, 2005)). Four parties commented on the
proposed rule, raising issues related to the merits of the stay, and
issues related to the merits of the Petition. On August 31, 2005, EPA
finalized, as proposed, a stay of the effectiveness of the Phase II
NOX SIP Call Rule as it related to Georgia only. (70 FR
51591, (August 31, 2005)). EPA also responded to comments on the stay
but indicated that it would respond to comments on the merits of the
Petition in a subsequent rulemaking that would address the Petition.
Challenge in Circuit Court. Finally, GCSEP filed a challenge to the
Phase II NOX SIP call rule in the Court of Appeals for the
11th Circuit, which has since been transferred to the D.C. Circuit.
Georgia Coalition for Sound Environmental Policy v. EPA, Case No. 04-
13088-C. The EPA and GCSEP have requested and the Court has granted the
request to hold the challenge in abeyance pending completion of the
present rulemaking.
III. Proposed Response to GCSEP's Petition For Reconsideration
A. Proposed Action
In a June 8, 2007, rulemaking notice, EPA initiated the process to
respond to the Petition. In that notice, we proposed to remove only
Georgia from inclusion in the Phase II NOX SIP call rule. In
the proposal, EPA specifically noted that we were not reopening any
other portions of the NOX SIP Call and Phase II
NOX SIP Call rules for public comment and reconsideration.
72 FR 31774 (June 8, 2007).
In the Petition, GCSEP had argued that Georgia did not meet EPA's
stated
[[Page 21531]]
rationale for the NOX SIP call rule when EPA promulgated the
Phase II NOX SIP Call rule. In short, GCSEP argued that (1)
EPA based its inclusion of northern Georgia on a finding that northern
Georgia contributes to nonattainment of the one-hour standard in
Birmingham, Alabama and Memphis, Tennessee; (2) but that neither
Birmingham nor Memphis was a nonattainment area at the time of the
Phase II rulemaking; and (3) as a result of the revised attainment
status of Birmingham and Memphis, there are no 1-hour ozone
nonattainment areas in any States affected by NOX emissions
from northern Georgia, and (4) therefore northern Georgia no longer
satisfied EPA's stated rationale for inclusion in the NOX
SIP Call Rule.
At proposal, we explained that in the 1998 NOX SIP Call
Rule, we articulated a test for defining a given downwind ``receptor''
location as ``nonattainment'' under section 110(a)(2)(D)(i)(I). We
defined ``nonattainment'' areas as including ``areas that have
monitored violations of the standard and areas that 'contribute to
ambient air quality in a nearby area' that is violating the standard''
(63 FR 57373; See also, 63 FR 57375-85). Additionally, as noted
previously, to be defined as ``nonattainment'' receptors, the receptor
also had to be modeled to have nonattainment air quality in the year
2007 when SIP Call controls would be in place.
As earlier explained, with regard to Georgia, EPA had determined
that sources and emitting activity in that State emit NOX in
amounts that significantly contribute to nonattainment of the 1-hour
ozone standard in the Birmingham, Alabama and Memphis, Tennessee
nonattainment areas (63 FR 57394). Although we had redesignated the
Memphis, Tennessee nonattainment area in 1995, monitored air quality
data for 1994-1996 indicated nonattainment air quality.\6\ While
Birmingham, Alabama was designated nonattainment for the 1-hour ozone
NAAQS and also had nonattainment air quality. Thus, at the time of the
promulgation of the 1998 NOX SIP Call rule, both Memphis,
Tennessee and Birmingham, Alabama were in ``nonattainment'' for
purposes of the NOX SIP Call Rule. In addition, the earlier
referenced modeling results indicated that both areas were also
projected to have nonattainment air quality in 2007.
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\6\ Monitored air quality data indicated that the Memphis,
Tennessee nonattainment area had nonattainment air quality from 1994
through 2000. Since 2001, the Memphis, Tennessee nonattainment area
has had monitored attainment air quality data.
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We have now redesignated both of these areas as 1-hour ozone
attainment areas and both currently have monitored air quality data
that does not violate the 1-hour ozone standard. Specifically, on March
12, 2004, we redesignated Birmingham, Alabama, to attainment of the 1-
hour ozone NAAQS. 69 FR 11798, (March 12, 2004). In addition, the
Memphis, Tennessee nonattainment area, which was redesignated in 1995
has had monitored attainment air quality data since 2001.
Therefore, we agree with GCSEP that at promulgation of the Phase II
NOX SIP Call Rule, both Memphis, Tennessee and Birmingham,
Alabama are now in attainment of the 1-hour ozone standard. Thus, both
areas no longer meet the definition of ``nonattainment'' used in the
1998 NOX SIP Call to identify downwind receptor areas for
the air quality impacts portion of the significant contribution
analysis.
B. Final Action
At promulgation of the Phase II NOX SIP Call Rule, both
Memphis, Tennessee and Birmingham, Alabama were in attainment of the 1-
hour ozone standard. In light of the fact that both downwind receptor
areas are no longer ``nonattainment'' areas, for purposes of the
significant contribution analysis, we are withdrawing our findings of
significant contribution for Georgia for the 1-hr ozone standard, as
proposed. This in effect means that Georgia is no longer required to
submit a revised SIP that prohibits certain amounts of NOX
emissions under the Phase II NOX SIP Call Rule.
IV. Response to Comments on the Proposed Rule
Six commenters submitted comments on the June 8, 2007 proposal. The
comments are summarized below along with EPA's responses. In this
section, we are also responding to those comments on the merits of this
Petition that we received at proposal of the stay of the effectiveness
of the NOX SIP Call rule in Georgia and had indicated would
be better addressed in the context of this rulemaking. 70 FR 51591,
51594 (August 31, 2005).
A. Legal Rationale
Comment: Several commenters agreed with EPA's proposed rationale
for removing Georgia from the NOX SIP Call rule. These
commenters agreed with EPA that Georgia no longer met EPA's criteria
for ``significant contribution'' when Birmingham was redesignated as
attainment area.
Response: EPA agrees with these commenters.
Comment: One commenter stated that given the NOX
emissions reduction requirements that are already in place in Georgia,
implementing the NOX SIP Call rule would not result in
further NOX emissions reductions, particularly from
electricity generating units (EGUs). This commenter asserted that
requiring Georgia to implement the NOX SIP Call requirements
without regard to those reductions already achieved and required in the
future, would be ``arbitrary, capricious and not in accordance with the
law.''
Response: As earlier stated, in the June 8, 2007, proposal we
explained that our inclusion of Georgia in the Phase II NOX
SIP Call rule was based on our definition of ``nonattainment'' and
determination of ``significant contribution to downwind nonattainment''
as articulated in the 1998 NOX SIP Call rule. 72 FR 31773.
Based on this definition and determination, we had found that emissions
activities from northern Georgia contributed significantly to
nonattainment of the one-hour ozone standard in both Memphis, Tennessee
and Birmingham, Alabama. 72 FR 31774. We also explained at proposal
that both Memphis, Tennessee and Birmingham, Alabama were designated as
attainment areas at the time of the Phase II NOX SIP Call
Rule. 72 FR 31774. Consequently, this rulemaking reflects our belief
that emissions activities in Georgia did not meet the 1998
NOX SIP Call rule definition and determination at the time
of the Phase II NOX SIP Call Rule and thus, that emissions
from northern Georgia could no longer be identified as ``contributing
significantly'' to downwind nonattainment problems. Thus, although the
commenter suggests we consider achieved and future reductions, our
basis for this action does not rely on other emissions controls in
Georgia.
Comment: One commenter disagreed with both EPA's proposed removal
of Georgia, and stated rationale for the removal. This commenter noted
that Michigan, 213 F.3d 663, did not question the inclusion of the
northern Georgia or the ``fine grid'' portion of the NOX SIP
Call photochemical modeling in the NOX SIP Call rule. This
commenter believed that because the inclusion of the fine grid portion
of Georgia was never in question, EPA cannot legally question that now.
This commenter also asserted that the grounds presented by GCSEP are
not of ``central relevance to the outcome of the rule'' because the
inclusion of the ``fine
[[Page 21532]]
grid'' portion of Georgia was not at issue and therefore, that
reconsideration of Georgia's inclusion in the NOX SIP Call
rule is not appropriate. The commenter asserted that the only
``relevant'' issues were the line between the fine grid and coarse grid
and the calculation of emissions budgets, neither of which were
addressed by the Petition. One commenter disagreed with another
commenter's assertion that EPA cannot revisit the original findings as
it related to Georgia. This commenter believed that the issue of
whether the Court questioned any conclusions on ``significant
contribution'' is irrelevant in this context because the facts and
issues presented in this rulemaking were not before the Court in
Michigan.
Response: Our position on the continued inclusion of Georgia in the
NOX SIP Call rule is not inconsistent with the Michigan
holding, inter alia, that ``[b]efore assessing `significance,' EPA must
find (1) emissions activity within a state; (2) show with modeling or
other evidence that such emissions are migrating into other states; and
(3) show that the emissions are contributing to nonattainment.''
Michigan, 213 F.3d at 680 (emphasis added). Further, we note that the
petitioners had maintained that there was record support for inclusion
of emissions from only the eastern half of Missouri and the northern
two thirds of Georgia as contributing to downwind ozone problems. We
also note the holding that ``the fine grid portion[] of [Georgia was]
closest to * * * [the Birmingham] nonattainment area[ ].''Michigan, 213
F.3d at 682. Thus, this action reflects our belief that with the
redesignation of the Birmingham, Alabama nonattainment area, we can no
longer conclude that emissions activities in Georgia are ``contributing
to [the Birmingham] nonattainment [area].''
We do agree, however, that Michigan did not question either the
``proposition that the fine grid portion of each State should be
considered to make a significant contribution downwind,'' or OTAG's
modeling analysis, but again we note the applicable holding that the
``critical issue is whether the targeted `source' or `emissions
activity' `contribute[s] significantly to nonattainment' in another
state.'' Michigan, 213 F.3d at 682 (alteration in original). Again, we
believe that the redesignation of Birmingham, Alabama and Memphis,
Tennessee raises the question as to ``whether the targeted `source' or
`emissions activity' `contribute[s] significantly to nonattainment' in
another state,'' at the time of the Phase II NOX SIP Call
rule. And we believe we no longer have record support showing that
Georgia `contribute[s] significantly to nonattainment' in another
state'' that would warrant our continued inclusion of Georgia in the
NOX SIP Call rule.
We also note that the issue at hand in this rulemaking was not
presented in Michigan and thus, was not decided in Michigan. That is,
the Court did not rule on whether EPA could continue to subject a State
to the NOX SIP Call requirements if, at the time of the
rulemaking for inclusion of that State, emissions activity from sources
in that State were no longer significantly contributing to
nonattainment in downwind areas. And even if we concede and agree with
both comments that Michigan does not require us to revisit the
inclusion of the ``fine grid portion'' in the NOX SIP Call
rule, and that GCSEP's petition raises issues beyond the scope of the
Phase II NOX SIP Call rulemaking, we believe we must be
cognizant of the fact that Memphis, Tennessee and Birmingham, Alabama
are no longer downwind nonattainment receptors as contemplated by the
NOX SIP Call rule, and take action accordingly. EPA must
have a rational basis for including any area within the scope of the
NOX SIP Call and EPA concludes that it would not be rational
to apply the SIP Call to an area that does not contribute to any
downwind receptor.
We also disagree with the comment that petitioners did not meet the
grounds for reconsideration as provided in CAA section 307(d)(7)(B).
Much confusion exists as to whether this rulemaking is under CAA
section 307(d)(7)(B). Although GCSEP invoked CAA section 307(d)(7)(B)
as authority for its Petition, earlier we had informed them, by letter
dated October 22, 2004, that our response would be under the authority
of the Administrative Proceedings Act (APA), because CAA section
307(d)(7)(B) was clearly inapplicable. (A copy of this letter is in the
docket for this rulemaking.) Thus, this rulemaking is being taken under
Section 553(e) of the APA, which ``give[s] an interested person the
right to petition for the * * * amendment, or repeal of a rule.'' 5
U.S.C. Sec. 553(e). See also our earlier response to a comment
regarding our authority to stay the effectiveness of the NOX
SIP Call with respect to Georgia pending a final reconsideration
rulemaking. 70 FR 51592-93 (August 31, 2005).
Comment: One commenter noted that subsequent to the Phase II
NOX SIP Call rule, EPA has revoked the one-hour ozone
standard and asserted that the NOX SIP Call requirements are
obsolete for Georgia as a result of the revocation. This commenter
believed that Georgia cannot significantly contribute to nonattainment,
nor interfere with maintenance, of a standard that no longer exists.
The commenter asserted that we cannot justify this rule because of our
authority to regulate activity that interferes with maintenance of the
one-hour standard.
Response: As stated earlier, in this action, we are finalizing our
removal of Georgia from the NOX SIP Call rule in light of
our redesignation of downwind receptors that emissions activities in
Georgia were determined to be significantly contributing to. We note,
however, that the NOX SIP Call rule continues to apply in
other areas subsequent to the revocation of the 1-hour ozone standard
for purposes of anti-backsliding during transition to implementation of
the 8-hour standard, 40 CFR 51.905(f) (2005), and is therefore not
``obsolete.'' Further, with regard to our authority to regulate
emissions activity that interferes with the 1-hour ozone standard
maintenance, under section 110(a)(2)(D)(i)(I), we had also determined,
in the 1998 NOX SIP Call rule, that this requirement was
inapplicable to the extent the 1-hour standard would no longer apply to
an area subsequent to our attainment determination. ``Under these
circumstances, emissions from an upwind area cannot interfere with
maintenance of the 1-hour NAAQS.'' 63 FR 57379.
Comment: One commenter, citing EPA's response to comments on the
continued inclusion of Missouri in the Phase II NOX SIP Call
rulemaking, argued that EPA has always taken a ``once-in-always-in''
approach to the NOX SIP Call. The commenter asserted that
the proposed rule is contrary to EPA's previous ``once-in-always-in''
approach. The commenter noted that the facts giving rise to GCSEP's
petition occurred only at the end of a lengthy, delayed rulemaking for
the Phase II NOX SIP Call rule. This commenter also believed
that the proposed rule, which took into account updated information,
was inconsistent with our previous statements relating to the continued
inclusion of Missouri in the NOX SIP Call rule. The
commenter also cited our specific response to comments on this issue
that,
(1) ``We disagree that a new emissions inventory is necessary
that takes into account Missouri's statewide NOX rule and
other post-1998 CAA rules. Because SIPs are constantly changing, it
is impractical to revise emissions inventories and modeling analyses
each time changes are made,'' and (2) ``* * * completing the
NOX SIP Call rule in Missouri is an equitable approach.
It
[[Page 21533]]
would be inequitable to use 2003 air quality analysis for Missouri
but to hold other NOX SIP Call States to the 1998
analysis.'' (69 FR 21626).
The commenter also noted our statement at the time that ``an agency
should not revisit an otherwise sound rulemaking just due to the
passage of time leading to changed circumstances, because circumstances
always change.'' Response to Comments: Phase II NOX SIP Call
Rule p. 47.
One commenter disagreed with another commenter's assertion that the
proposed rule violated the ``once-in-always-in'' approach, because (1)
the NOX SIP Call rule had yet to be implemented in Georgia
and (2) that NOX emissions reductions have already been made
by the State of Georgia under other State regulatory authorities.
Response: EPA does not agree that this rule is inconsistent with an
``once-in-always-in'' approach. The issue at hand is not whether
Georgia (or parts of Georgia) should continue to be ``in,'' but whether
as an initial matter Georgia (or parts of Georgia) should be ``in'' the
Phase II NOX SIP Call rule at all. As earlier explained,
States are subject to the NOX SIP Call requirements if they
meet the 1998 NOX SIP Call rule test for significant
contribution to ``nonattainment'' receptors. (63 FR 57373; 57375-85).
States that meet this test continue to be subject to the NOX
SIP Call requirements even with the revocation of the 1-hour ozone
standard. 40 CFR 51.905(f) (2005). Because both Birmingham, Alabama and
Memphis, Tennessee were meeting the 1-hour ozone standard and had been
redesignated as attainment areas at the time of the Phase II
NOX SIP Call Rule, we no longer believe that the fine grid
portion of Georgia met the test for significant contribution to
``nonattainment'' receptors at the time of promulgation of the Phase II
rule.
We are also not persuaded by commenter's citation of our responses
to comments in the Phase II NOX SIP Call rule regarding our
rejection of 2003 air quality data that would take into account current
(at the time) emissions reductions by Missouri and our continued
reliance on emissions data from the NOX SIP Call in
subjecting Missouri to the NOX SIP Call requirements. (See
69 FR 21262). We do not believe that our response on this issue is
analogous primarily because the Chicago, Illinois nonattainment area
that eastern Missouri was significantly contributing to was still in
nonattainment at the time of promulgation of the Phase II
NOX SIP Call rule. Thus, eastern Missouri continued to meet
the 1998 NOX SIP Call rule test for significant contribution
to downwind ``nonattainment.'' Again this would not be the case with
respect to Georgia in this instance because both Birmingham, Alabama
and Memphis, Tennessee had been designated as attaining the 1-hour
ozone standard prior to promulgation of the Phase II rule.
Further we disagree with the assertion that this rulemaking amounts
to revisiting the question of whether sources in northern Georgia are
linked to downwind nonattainment contrary to our stated position that
``we should not revisit an otherwise sound rulemaking just due to the
passage of time.'' Rather as earlier stated we believe that their clean
air quality and our redesignation of Birmingham, Alabama, and Memphis,
Tennessee nonattainment calls into question the validity of our
existing determination that Georgia ``significantly contributes to
downwind nonattainment'' as construed in the NOX SIP Call
Rule. 63 FR 57376. Our decision also comports with our earlier
statement that we intended to review the NOX SIP Call rule
to make necessary adjustments. 63 FR 57428. Further, as earlier stated,
even if we concede and agree with both comments that Michigan does not
require us to revisit the inclusion of Georgia's fine-grid portion and
that GCSEP's petition raises issues beyond the scope of the Phase II
NOX SIP Call rulemaking, we believe we must be cognizant of
the fact that Memphis, Tennessee and Birmingham, Alabama were no longer
downwind nonattainment receptors as contemplated by the NOX
SIP Call at the time of the Phase II Rule. Both areas achieved the 1-
hour ozone standard without the implementation of the NOX
SIP Call Rule in Georgia and thus, we see no reason for Georgia's
continued inclusion in the NOX SIP Call. Rather, we believe
that our continued subjection of the State of Georgia to the
NOX SIP Call requirements could likely be viewed as
arbitrary and capricious and not in accordance with the law in light of
the facts pertinent to the two downwind receptors at the time of
promulgation of the Phase II NOX SIP Call rule.
Comment: One commenter asserted that our proposal was an attempt at
resurrecting the pre-1990 version of CAA Section 110(a)(2)(D)(i). The
commenter noted that prior to the 1990 amendments, this section
required the elimination of emissions that ``prevent attainment or
maintenance'' of the NAAQS by another State, while under the 1990
amendments this section now prohibits emissions that ``contribute
significantly to nonattainment'' in another State. The commenter
asserted that under the proposed rule, EPA seems to be applying the
pre-1990 provision by concluding that if the downwind State had
attained, without the assistance of one particular group of upwind
sources, then those sources must not be part of the problem.
Response: We disagree. Under CAA Section 110(a)(2)(D)(i)(I), SIPs
must contain provisions prohibiting amounts of emissions ``which will
contribute significantly to nonattainment'' of an air quality standard
in a downwind state. In the NOX SIP Call Rule we interpreted
the term ``contribute significantly'' by explaining that:
The determination of significant contribution includes both air
quality factors relating to amounts of upwind emissions and their
ambient impact downwind, as well as cost factors relating to the
costs of the upwind emissions reductions. Once an amount of
emissions is identified in an upwind State that contributes
significantly to a nonattainment problem downwind * * * the SIP must
include provisions to eliminate that amount of emissions. 63 FR
57376 (October 27, 1998).
We also set out the multi-factor test we applied in determining
whether emissions from an upwind state ``contribute[s] significantly''
to downwind nonattainment. These factors included:
[T]he overall nature of the ozone problem (i.e., collective
contribution'); The extent of the downwind nonattainment problems to
which the upwind State's emissions are linked, including the ambient
impact of controls required under the CAA or otherwise implemented
in the downwind areas; [and] [t]he ambient impact of the emissions
from the upwind State's sources on the downwind nonattainment
problems. Id.
In the June 8, 2007, proposal, we explained that our inclusion of
Georgia in the NOX SIP Call was based on a finding that emissions from
northern Georgia contributed significantly to nonattainment of the one-
hour ozone standard by both Memphis, Tennessee and Birmingham, Alabama.
72 FR 31774. We also explained that both Memphis, Tennessee and
Birmingham, Alabama were designated as attainment areas at the time of
the Phase II NOX SIP Call Rule. 72 FR 31774. Consequently, today's
rulemaking reflects our belief that emissions activities in Georgia no
longer meet both our determination of ``significant contribution'' and
the multi-factor test, which we made at promulgation of the
NOX SIP Call Rule under the current section
110(a)(2)(D)(i)(I), and thus, that emissions from northern Georgia can
no longer be identified as ``contributing
[[Page 21534]]
significantly'' to downwind nonattainment problems. Thus, Georgia would
not need NOX SIP Call provisions to prevent any such contribution.
B. Emissions Cap Comment
One commenter believed that our non-inclusion of Georgia in the NOX
SIP Call Rule would result in EGUs located in Georgia not being subject
to an emissions cap during ozone seasons, and that the lack of a cap
for sources that would otherwise be subject to the NOX SIP Call rule
may impede the ability of downwind states to maintain attainment of the
1-hour ozone NAAQS. Another commenter noted that EGUs are subject to
annual caps under the Clean Air Interstate rule (CAIR), and that
Georgia rules require that any add-on controls for CAIR compliance
purposes should be operational during the ozone season.
Response: This action is based on the fact that the attainment of
the 1-hour ozone standard and redesignation of Birmingham, Alabama and
Memphis, Tennessee raises the question as to ``whether the targeted
`source' or `emissions activity' `contribute[s] significantly to
nonattainment' in another state.'' It is also based on our conclusion
that emitting activities in Georgia no longer `` `contribute[s]
significantly to nonattainment' in another state.'' Although not a
basis for our action, EPA notes, after reviewing the current Georgia
regulations, that by adopting stringent requirements for EGU NOX
emissions in the SIP Georgia has effectively capped EGUs emissions at
levels that are more stringent than would be achieved by implementing
the NOX SIP Call requirements.
With regard to the comment that the absence of a cap for sources in
Georgia may impede the ability of downwind maintenance of the 1-hour
ozone standard, see our earlier response, in Section III.A above, on
our authority to regulate emissions activity that interfere with the
maintenance of the 1-hour ozone standard.
C. Comparison With the Atlanta State Implementation Plan
We also received comments on our analysis and conclusion at
proposal that NOX emissions controls under current and anticipated
Atlanta SIP requirements would ensure equivalent or better levels of
NOX emissions than would be achieved under the NOX SIP Call. 72 FR
31775-76. Comments addressed the degree of reductions from the Atlanta
SIP in comparison to the emissions reductions assumed in the NOX SIP
Call budgets for: EGUs, non-EGU boilers, cement kilns and IC engines,
as well as emissions from other categories not included within the NOX
SIP Call.
Comment: One commenter believed that EGUs requirements in the
Atlanta SIP were less stringent than the levels assumed in the NOX SIP
Call budgets. This commenter noted that the NOX SIP Call Rule was based
on an average level of 0.15 pounds NOX per million BTU for EGUs, while
the 1999 Atlanta SIP was based on a level of an average of 0.20 pounds
NOX per million BTU. Moreover, the commenter noted that our
calculations did not take into consideration Georgia's 60 counties that
would have been subject to the Phase II NOX SIP Call rule that are not
all addressed by the Atlanta SIP.
Other commenters believed that the emissions reductions for EGUs
that would be achieved by the 1999 and subsequent Atlanta SIP
requirements exceeded the requirements of the NOX SIP Call rule. One
commenter noted that emissions by 27 of the 28 EGUs that would be
covered by the NOX SIP Call rule are limited by the 1999 Atlanta SIP
requirements, and that only 4 percent of the total EGUs NOX emissions
for the 2006 ozone season are emitted by the sole EGU that is not
covered by those requirements. The commenter did agree that the 27
units covered under the 1999 Atlanta SIP were subject to an overall
average limit of 0.20 pounds per million BTU. The commenter further
stated that 19 of the 27 EGUs were required to meet 0.13 pounds per
million BTU during the ozone season beginning May 1, 2003, or one year
earlier than the NOX SIP Call requirements, which were effective with
the 2004 ozone season.
Several commenters noted that, based on a review of our
calculations, the overall actual NOX emissions for the 2003-2006 time
period, and taking into account early reduction allowances that EGUs
subject to 0.13 pounds per million BTU limits would have earned,
Georgia would not only have complied with the NOX SIP Call for this
time period, but could have maintained 4027 tons of banked excess
allowances as of the end of the 2006 ozone season. This estimate was
based on (1) calculations by Georgia, under the NOX SIP Call trading
program at 40 CFR part 96, showing that EGUs allocations would have
been 29,416 tons per year in addition to the compliance supplement pool
(CSP) allowance of 10,728 tons in 2004, or in sum, 98,976 tons from
2004 through 2006 ozone seasons; (2) actual EGUs NOX emissions of
24,966, 35,272, and 34,711 tons, respectively, for the 2004 through
2006 ozone seasons. (The commenter attributed these numbers to the
Agency's Clean Air Market Division's Web site.) This would result in a
total of 94,949 tons for the 2004-2006 ozone seasons; and (3) a
comparison of the NOX SIP Call allocations of 98,976 tons with the
94,949 tons of actual emissions to determine that actual emissions were
4,027 tons less than would have been allocated under the NOX SIP Call
trading program. The commenters noted that, were Georgia in the NOX SIP
Call rule, Georgia could have sold these allowances, and that this
would have likely resulted in NOX emissions increases from sources in
other States.
One commenter also noted that the Atlanta SIP requires both limits
that are to be met on a 30 day rolling average, which is more
restrictive than the seasonal budgets identified in the NOX SIP Call
trading program, and a stringent cap on EGUs emissions because the
limits cannot be complied with by purchasing allowances.
Response: As earlier stated, in the June 8, 2007, proposal we
explained that our inclusion of the State of Georgia in the NOX SIP
Call was based on our definition of ``nonattainment'' and determination
of ``significant contribution to downwind nonattainment'' as
articulated in the 1998 NOX SIP Call rule. 72 FR 31773. Based on this
definition and determination we found that emissions activities from
northern Georgia contributed significantly to nonattainment of the one-
hour ozone standard in both Memphis, Tennessee and Birmingham, Alabama.
72 FR 31774. We also explained that both Memphis, Tennessee and
Birmingham, Alabama were designated as attainment areas at the time of
the Phase II NOX SIP Call Rule. 72 FR 31774. Consequently, this
rulemaking reflects our belief that emissions activities in Georgia did
not meet the 1998 NOX SIP Call rule definition and determination at the
time of the Phase II NOX SIP Call Rule and thus, that emissions from
northern Georgia can no longer be identified as ``contributing
significantly'' to downwind nonattainment problems.
Nonetheless, we note that the compliance date for Phase II NOX SIP
Call Rule was May 31, 2007, instead of May 31, 2004, assumed by the
above calculations. We also note that these calculations strongly
support our conclusion that existing requirements under the Atlanta SIP
result in NOX emissions reductions which are more stringent than the
NOX SIP call.
Comment: One commenter believed that the appropriate basis for
comparison between the Atlanta SIP and the NOX SIP Call budgets should
not be 2004, but rather 2007 and
[[Page 21535]]
subsequent years. Because the NOX SIP Call is based upon achieving the
2007 NOX SIP Call budget, the better analysis would be to assess
whether sources in northern Georgia are modeled to achieve the 2007 NOX
SIP Call budget. The commenter stated that we had not made this
showing. The commenter also stated that our documentation in the
proposal did not clearly address future reductions from EGUs and other
sources. (72 FR 31776). The commenter asserted that our predicted EGUs
reductions based upon the Integrated Planning Model (IPM) are also
indeterminate.
Other commenters supported EPA's view that existing and future
Atlanta SIP requirements would result in a future trend towards
decreasing EGU NOX emissions. One commenter noted that in February 2007
(effective May 1, 2007), EGUs requirements, under the Atlanta SIP,
became more stringent because the applicable average limits changed
from 0.20 to 0.18 lbs/MMBTU. Additionally, the Georgia
``multipollutant'' rule would require the installation of 12 additional
selective catalytic reduction (SCR) units between 2008 and 2015. The
commenter also noted that Georgia Power has submitted an application to
retire two coal-fired units in the Atlanta area and replace them with
lower-emitting natural gas combined-cycle units.
Response: As explained earlier, we are determining that Georgia no
longer meets the ``significant contribution'' test articulated in the
1998 NOX SIP Call rule because both Memphis and Birmingham were in
attainment at the time of the Phase II NOX SIP Call rule. Nevertheless,
after reviewing the available information, EPA finds ample evidence to
note that beginning with the 2007 ozone season, NOX emissions in
northern Georgia will be less than assumed by the NOX SIP Call budgets.
Because, as noted in comments, Georgia NOX requirements for the SIP are
becoming more stringent over time, emissions for 2007 and subsequent
years would likely result in even more favorable comparisons for the
Georgia SIP requirements relative to the NOX SIP Call rule. This
assessment is not based on what the commenter terms as
``indeterminate'' predictions of the IPM model, but rather on the
enforceable requirements of the Atlanta SIP.
Comment: Two commenters also noted that, under the Atlanta SIP, NOX
emissions reductions for IC engines and cement kilns are significantly
beyond the NOX SIP Call rule reductions. The commenters stated that
these additional reductions were achieved as a result of the Georgia
RACT rules for fuel burning equipment, stationary turbines, stationary
engines, large gas turbines, and small fuel burning equipment. One
commenter noted that non-EGUs boilers (i.e., greater than 250 Million
BTU/hour) might have become small-scale net purchasers of allowances
under the Phase II NOX SIP Call rule due to the absence of controls at
the levels assumed in setting the NOX SIP Call budgets. Nonetheless,
the commenter believed that the additional reductions from other
sources would more than offset those purchases, and would not affect
the finding that Georgia would have been a net exporter of NOX
emissions allowances under the Phase II NOX SIP Call rule.
One commenter expressed concerns that reductions from other (non-
EGUs) sources were not well documented in the proposal, and that they
may be at least already partially included in the calculations for the
comparison of reductions between the Atlanta SIP and Phase II NOX SIP
Call rule.
Response: As explained earlier, we are determining that Georgia no
longer meets the ``significant contribution'' test articulated in the
1998 NOX SIP Call Rule because both Memphis and Birmingham
attained the 1-hour ozone standard and were redesignated at the time we
promulgated the Phase II NOX SIP Call rule. Nonetheless, EPA
notes that documentation provided by commenters for the non-EGUs
measures in the Georgia SIP would appear to support the assertion that
Georgia would have been a likely net exporter of allowances under the
NOX SIP call rule.
D. Other Issues
Comment: One commenter opposed EPA's proposed rule, and recommended
that not only should Georgia be included in the NOX SIP Call
rule, but should also be responsible for NOX emissions
reductions under the rule. The commenter noted that NOX
emissions are contributors to smog, and that Atlanta suffers from urban
sprawl with no incentive to keep growth within city limits.
Response: EPA agrees with the commenter that NOX is an
important contributor to air pollution in Georgia, and that Georgia may
need further NOX reductions in order to meet applicable
ozone standards. This rule, however, reflects a determination that at
the time of promulgation of the Phase II NOX SIP Call rule,
emissions activities from sources in Georgia were no longer
significantly contributing to downwind nonattainment in other States.
Thus, it is not appropriate for EPA to impose NOX reductions
requirements in Georgia under the SIP Call.
Comment: One commenter believed that the proposed action encourages
parties to hinder rulemakings in hopes that new circumstances will
provide a technical basis for a reprieve.
Response: EPA disagrees. We believe we are acting appropriately
based on the facts at the time of the Phase II NOX SIP Call
rulemaking. Moreover, any delay in finalizing the Phase II
NOX SIP Call Rule did not contribute to adverse air quality
in Birmingham and Memphis because these areas were able to attain the
1-hour standard in the intervening period. EPA also notes that during
this intervening period, the Agency had to juggle competing rulemaking
demands on our limited scientific and legal staff.
Comment: Two commenters expressed the concern that including
Georgia in the NOX SIP call would impose resource
expenditures without significant NOX emissions reductions.
One commenter cited concerns over resource expenditures for (1) non-
EGUs compliance with 40 CFR part 75 monitoring, (2) EGUs recordkeeping
in addition to acid rain and CAIR, (3) Georgia SIP obligations, and (4)
EPA tracking of ozone season allocations. The other commenter expressed
concerns that imposition of the NOX SIP Call would require
Georgia to conduct a lengthy and expensive rulemaking process and would
divert limited state resources from other efforts such as eight-hour
ozone SIPs, PM2.5 SIPs, and regional haze SIPs.
Response: EPA generally agrees that these resource considerations
support the proposed rule.
Comment: One commenter noted that numerous modeling studies have
assumed full implementation of the NOX SIP Call in all
affected States including Georgia. Thus, the commenter argues, if
Georgia does not implement the SIP Call, all of these modeling analyses
would be incorrect.
Response: The commenter appears to assume, without providing any
support, that not including Georgia in the NOX SIP Call Rule
would result in future emissions being greater than those used as
inputs to previous modeling studies, and that those increased emissions
would lead to increases in modeled estimates of ozone concentrations.
This assumption is incorrect. As noted in the preamble to the proposed
rule (72 FR 31775-31776) and as discussed above, EPA has determined
that future NOX emissions from Georgia, because of Atlanta
SIP requirements, would most likely be less than the emissions that
were projected to occur from implementation of the NOX SIP
Call rule by Georgia. In other words, the emission levels required by
the Georgia SIP are
[[Page 21536]]
lower than those that would have occurred from implementation of the
NOX SIP Call in Georgia. Thus, any assumption regarding
Georgia's participation in the NOX SIP Call would likely not
have affected estimates of Georgia emissions in various modeling
analyses. For these reasons, we can conclude that the removal of
Georgia from the NOX SIP Call would not be expected to
impact modeling inputs or results of the modeling studies.
Comment: One commenter noted that the commenter's problem with
EPA's proposed rule was compounded by exclusion of Georgia from the
seasonal CAIR program. The commenter further stated that Georgia is the
only state out of 22 states east of the Mississippi subject to CAIR
that is not otherwise subject to the CAIR summertime NOX
program.
Response: We disagree. Georgia is subject to both annual emissions
budgets for NOX under CAIR, and stringent requirements under
the 1999 and subsequent Atlanta SIP requirements. In addition, as noted
by commenters, Georgia SIP rules require that controls installed for
purposes of meeting annual CAIR requirements must be operated during
the ozone season. In sum, we believe that all these requirements will
assure substantial reductions in summertime NOX emissions in
Georgia. See also 72 FR 31775-56.
Comment: One commenter noted that EPA did find in its original
analysis for the NOX SIP Call rule that the NOX
emissions in Georgia significantly contributed to 8-hour ozone
nonattainment areas in 10 downwind States, including Alabama. The
commenter was also cognizant of the stay of the findings of the
NOX SIP Call rule as it relates to the 8-hour ozone
standard. Thus this commenter recommended that Georgia should not be
removed from the Phase II NOX SIP Call rule.
Another commenter expressed concerns that Georgia sources do not
have summertime NOX emissions caps despite significant
contributions to 8-hour ozone levels.
Response: This comment and any other comments on the 8-hour basis
of the NOX SIP Call rule are beyond the scope of the
proposed rule. The stay of effectiveness of the 8-hour basis for the
NOX SIP Call continues, and the proposed rule neither
addressed nor reopened any issues relating to the 8-hour basis for the
NOX SIP Call rule. 72 FR 31774.
EPA notes, however, that as stated above, Georgia is subject to
annual emissions budgets for NOX under CAIR, that controls
installed for purposes of meeting annual CAIR requirements must be
operated during the ozone season in Georgia, and that the Georgia SIP
requirements designed to achieve emission reductions aimed at
addressing 8-hour ozone nonattainment in Atlanta will assure that
stringent levels of NOX emissions will be met. As noted
earlier above, these levels are more stringent than required by the
NOX SIP Call budgets.
Comment: One commenter noted that certain controls in Georgia were
installed a year earlier than similar requirements in North Carolina,
and the average pounds/million BTU emissions rate is lower in Georgia
than in North Carolina or Alabama.
Response: This comment is beyond the scope of the proposed rule.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under the EO. This action grants a
petition for reconsideration and removes the State of Georgia from the
NOX SIP Call Rule. It does not impose any requirement on
regulated entities.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.,
because the action removes a regulatory requirement.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act (RFA)
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedures Act or any other statute unless the agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this final rule on small
entities, small entity is defined as: (1) A small business as defined
in the Small Business Administration's (SBA) regulations at 13 CFR
12.201; (2) a small governmental jurisdiction that is a government of a
city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of this final rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, or otherwise has a positive economic effect
on all of the small entities subject to the rule.
This action grants a petition for reconsideration and removes the
State of Georgia from the NOX SIP Call Rule and therefore,
is not expected to have a significant economic impact on a substantial
number of small entities. This action neither imposes requirements on
small entities, nor is it expected that there will be impacts on small
entities beyond those, if any, required by or resulting from the
NOX SIP Call and the Section 126 Rules.
[[Page 21537]]
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under Section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for any proposed or final rules with ``Federal mandates''
that may result in the expenditure to State, local, and Tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any 1 year. Before promulgating a rule for which a
written statement is needed, Section 205 of the UMRA generally requires
EPA to identify and consider a reasonable number of regulatory
alternatives and adopt the least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the rule. The
provisions of Section 205 do not apply when they are inconsistent with
applicable law. Moreover, Section 205 allows EPA to adopt an
alternative other than the least costly, most cost-effective or least
burdensome alternative if the Administrator
