01-2169. Adequacy Status of the Atlanta, GA, Submitted Ozone Attainment State Implementation Plan for Transportation Conformity Purposes; Withdrawal of Adequacy Finding

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Withdrawal of adequacy finding.

SUMMARY:

EPA has decided to withdraw our finding of adequacy for the motor vehicle emissions budgets in the Atlanta, Georgia, ozone attainment SIP submitted on October 28, 1999. We are withdrawing our adequacy finding for several reasons. The United States Court of Appeals for the District of Columbia circuit decided on August 30, 2000, that the implementation of the Nitrogen Oxides (NO_X) State Implementation Plan (SIP) Call rule could not be required before May 31, 2004. The emission levels in the Atlanta attainment SIP motor vehicle emissions budget for NO_X were based in part on the assumption that transport of ozone recursors into Atlanta from upwind states would be addressed by May 2003 pursuant to EPA's NO_X SIP Call. Further, the Georgia Environmental Protection Division (EPD) recently requested that EPA withdraw its adequacy determination of the Atlanta ozone attainment SIP motor vehicle emissions budgets. The notice of the adequacy determination that is being withdrawn was made on February 15, 2000, in a letter to the State and was published in the Federal Register on February 28, 2000.

DATES:

The notice of adequacy is withdrawn as of January 26, 2001.

FOR FURTHER INFORMATION CONTACT:

Kelly Sheckler (404-562-9042).

SUPPLEMENTARY INFORMATION:

Background

On February 15, 2000, EPA Region 4 sent a letter to the Georgia Environmental Protection Division stating that the motor vehicle emissions budgets for nitrogen oxides (NO_X) and volatile organic compounds (VOCs) in the October 28, 1999, Atlanta ozone attainment SIP for 2003 were adequate for the purpose of transportation conformity. EPA published a notice in the Federal Register on February 28, 2000, [65 FR 10490] announcing that we had made an adequacy determination for the motor vehicle emissions budgets in Atlanta's attainment SIP. This finding was also announced on EPA's conformity website, http://www.epa.gov/​oms/​traq.

Transportation conformity is required by section 176(c) of the Clean Air Act. EPA's conformity rule requires that transportation plans, programs, and projects conform to SIPs and establishes the criteria and procedures for determining whether or not they do conform. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standards.

EPA described the process for determining the adequacy of submitted SIP budgets in guidance (May 14, 1999, memo titled “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision”). This guidance was used in making the adequacy determination on the motor vehicle emissions budgets contained in the attainment demonstration for Atlanta. The criteria by which EPA determines whether a SIP's motor vehicle emission budgets are adequate for conformity purpose are outlined in 40 CFR 93.118(e)(4). An adequacy review is separate from EPA's SIP completeness review, and it also should not be used to prejudge EPA's ultimate action to approve or disapprove the SIP. The SIP could later be disapproved for reasons unrelated to transportation conformity even though the budgets had been deemed adequate.

The Southern Environmental Law Center (SELC) on behalf of many petitioners, filed a lawsuit on April 28, 2000, with the 11th Circuit Court of Appeals seeking review of EPA's adequacy finding. On July 11, 2000, the petitioners moved, on an expedited basis, to stay EPA's adequacy determination pending that Court's ruling on the merits of their April 28, 2000 Petition. On July 18, 2000, the 11th Circuit Court granted the motion for stay.

Once the 11th Circuit stayed the attainment SIP adequacy determination on July 18, 2000, the United States Department of Transportation (USDOT) had to base any conformity determination on the prior approved motor vehicle emissions budgets contained in the VOC 15 percent and NO_X 9 percent rate of progress SIPs approved by EPA on April 26, 1999, and March 18, 1999, respectively (64 FR 20186 and 64 FR 13348). Today's action does not affect USDOT's July 25, 2000, conformity determination since it was based on these approved budgets and not the submitted attainment budgets, which had been stayed prior to the conformity determination.

EPA believes that a consequence of the D.C. Circuit's order delaying the implementation date of the NO_X SIP Call rule is that the budget submitted by Georgia can no longer be considered adequate for purposes of transportation conformity. This belief is based on the fact that the attainment demonstration relied on the expected reductions from the NO_X SIP call in 2003, whereas those reductions can not now be assumed prior to 2004.

Furthermore, on December 21, 2000, Georgia sent a letter withdrawing the motor vehicle emission budgets contained in the October 28, 1999, SIP submittal and asked that EPA not undertake any further consideration of these budgets until the State concludes the work necessary to submit a revised budget. The revised budget is expected to be based on the results of the recent study of vehicle speeds data, updated vehicle registration data, and modeling information relevant to the estimation of current and future motor vehicle emissions developed since submission of the previous budget. Based on these changes of fact and law, the parties filed a joint motion to the 11th Circuit to hold further proceedings on review of the adequacy determination in abeyance and for permission for EPA to withdraw the finding of adequacy. All parties in those proceedings have agreed that because it is not appropriate for the transportation agencies to rely upon the currently submitted budget for the purpose of making transportation conformity determinations, the stay entered by the Court on July 19, 2000, should remain in effect pending EPA's completion of the withdrawal action. On January 12, 2001, the court granted EPA the motion to withdraw the adequacy determination.

Consequently, EPA has decided to withdraw the February 15 adequacy determination. Even though adequacy determinations are not considered rulemaking subject to procedural requirements of the Administrative Procedures Act, EPA's policy is to provide a notice and comment period on adequacy determinations. However, we are not providing opportunity for comment on this withdrawal notice for two reasons. EPA is taking this action without prior notice and comment because adequacy determinations are not considered rulemaking subject to the procedural requirements of the Administrative Procedures Act. In addition, EPA does not believe further notice through EPA's conformity website is necessary in advance, since as a result of the stay issued by the court, the conformity determination made by USDOT on July 25, 2000, did not rely on the motor vehicle emission budgets submitted in the attainment SIP. Therefore, although EPA had found these budgets to be adequate, they were never used for transportation conformity purposes. Further, because of the delay in the NO_X SIP Call implementation date, it is clear that the budgets can no longer be considered adequate, and Georgia has requested that EPA withdraw the adequacy determination. Consequently, further public comment would be unnecessary and not in the public interest. In this action, EPA is also withdrawing all statements and comments previously made in relation to its earlier determination of the adequacy of the budgets for transportation conformity purposes. The substance of the budgets and any revisions to them will be further reviewed by EPA as part of its final decision to approve or disapprove the 1-hour ozone attainment demonstration SIP for the Atlanta nonattainment area. This SIP was initially submitted to EPA on October 28, 1999, and was supplemented on January 31, 2000, and July 31, 2000. EPA will consider all of these submissions as well as all comments timely submitted as we decide whether to approve or disapprove the SIP.

EPA will announce the withdrawal of the adequacy determination on its conformity website at http://www.epa.gov/​oms/​traq.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Hydrocarbons
• Ozone

Dated: January 16, 2001.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.