2010-30104. Approval and Promulgation of Implementation Plans; Extension of Attainment Date for the Atlanta, GA 1997 8-Hour Ozone Moderate Nonattainment Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is taking final action to approve a request from the State of Georgia, through the Georgia Department of Natural Resources' Environmental Protection Division (EPD), to grant a one-year extension of the attainment date for the 1997 8-hour ozone national ambient air quality standards (NAAQS) for the Atlanta, Georgia Area (hereafter referred to as the “Atlanta Area”). This request was sent to EPA via letter from EPD on June 9, 2010. The Atlanta Area consists of Barrow, Bartow, Carroll, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Hall, Henry, Newton, Paulding, Rockdale, Spalding, and Walton Counties in Georgia. In today's action, EPA is finalizing a determination that the State of Georgia has met the Clean Air Act (CAA or Act) requirements to obtain a one-year extension to its attainment date for the 1997 8-hour ozone NAAQS for the Atlanta Area. As a result, EPA is approving a one-year extension of the 1997 8-hour ozone moderate attainment date for the Atlanta Area. Specifically, EPA (through this final action) is extending the Atlanta Area's attainment date from June 15, 2010, to June 15, 2011.

DATES:

Effective Date: This rule will be effective December 30, 2010.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2010-0614. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Ms. Jane Spann or Ms. Sara Waterson, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number for Ms. Spann is [phone]. Ms. Spann can also be reached via electronic mail at [e-mail]. The telephone number for Ms. Waterson is [phone]. Ms. Waterson can also be reached via electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. Today's Action

III. Final Action

IV. Statutory and Executive Order Reviews

I. Background

Detailed background information and rationale for today's final action can be found in EPA's proposed rule entitled “Approval and Promulgation of Implementation Plans; Extension of Attainment Date for the Atlanta, GA 1997 8-Hour Ozone Moderate Nonattainment Area,” 75 FR 56943 (September 17, 2010). The comment period for EPA's proposed action closed on October 18, 2010. EPA did not receive any comments, adverse or otherwise, on its proposed action to extend the attainment date for the Atlanta 1997 8-hour ozone area. This section includes a brief summary of the background information and rationale for EPA's approval of Georgia's one-year extension request.

Section 181(b)(2)(A) requires the Administrator, within six months of the attainment date, to determine whether an ozone nonattainment area attained the NAAQS. CAA section 181(b)(2)(A) states that, for areas classified as marginal, moderate, or serious, if the Administrator determines that the area did not attain the standard by its attainment date, the area must be reclassified to the next classification. However, in accordance with CAA Section 181(a)(5), EPA may grant up to 2 one-year extensions of the attainment date under specified conditions. Specifically, in relevant part, Section 181(a)(5) states:

“Upon application by any State, the Administrator may extend for one additional year (hereinafter referred to as the “Extension Year”) the date specified in table 1 of paragraph (1) of this subsection if—

(A) the State has complied with all requirements and commitments pertaining to the area in the applicable implementation plan, and

(B) no more than 1 exceedance of the national ambient air quality standard level for ozone has occurred in the area in the year preceding the Extension Year.

With regard to the first element, “applicable implementation plan” is defined in Section 302(q) of the CAA as, the portion (or portions) of the implementation plan, or most recent revision thereof, which has been approved under Section 110, or promulgated under Section 110(c), or promulgated or approved pursuant to regulations promulgated under Section 301(d) and which implements the relevant requirements of the CAA.

The language in section 181(a)(5)(B) reflects the form of the 1-hour ozone NAAQS, which is exceedance based and does not reflect the 1997 8-hour ozone NAAQS, which is concentration based. Because section 181(a)(5)(B) does not reflect the form of the 8-hour NAAQS and application would produce an absurd result, EPA interprets this provision in a manner consistent with Congressional intent but reflecting the form of the 1997 8-hour NAAQS. Therefore, EPA adopted an interpretation that under both section 172(a)(2)(C) and 181(a)(5), an area will be eligible for the first of the one-year extensions under the 8-hour NAAQS if, for the attainment year, the area's 4th highest daily 8-hour average is 0.084 ppm or less. The area will be eligible for the second extension if the area's 4th highest daily 8-hour value averaged over both the original attainment year and the first extension year is 0.084 ppm or less. No more than 2 one-year extensions may be issued for a single nonattainment area.

EPA interprets the CAA and implementing regulations to allow the granting of a one-year extension under the following minimum conditions: (1) The State requests a one-year extension; (2) all requirements and commitments in the EPA-approved SIP for the area have been complied with; and (3) the area has a 4th highest daily 8-hour average of 0.084 ppm or less for the attainment year (or an area's 4th highest daily 8-hour value averaged over both the original attainment year and the first extension year is 0.084 ppm or less, if a second one-year extension is requested). Because the Atlanta Area attainment date was June 15, 2010, the “attainment year” used for this purpose is the 2009 ozone season. The Georgia ozone season runs from March 1 to October 31 of any given year.

II. Today's Action

EPA has determined that Georgia has met the CAA requirements to obtain a one-year extension of the attainment date for the 1997 8-hour ozone NAAQS for the Atlanta Area. As a result, EPA is taking final action to extend the Atlanta Area's attainment date from June 15, 2010, to June 15, 2011, for the 1997 8-hour ozone NAAQS. Specifically, EPA has determined that Georgia is in compliance with the requirements and commitments associated with the EPA-approved implementation plan, and that the 4th highest daily 8-hour ozone average concentration for 2009 for the Atlanta Area is below the 1997 8-hour ozone NAAQS as required by the CAA. EPA has reviewed the 1997 8-hour ozone NAAQS ambient air quality monitoring data for the Atlanta Area, consistent with the requirements contained in 40 CFR part 50 and as recorded in the EPA Air Quality System database. On the basis of that review, EPA has concluded that for the attainment year, 2009, the Atlanta Area's 4th highest daily 8-hour average concentration was 0.077 ppm which is below the 8-hour ozone NAAQS of 0.08 ppm (effectively 0.084 ppm). This final action is based upon complete, quality assured, quality controlled, and certified ambient air monitoring data for 2009. As provided in 40 CFR 51.907, this final action extends, by one year, the deadline by which the Atlanta Area must attain the 1997 8-hour ozone NAAQS. It also extends the timeframe by which EPA must make an attainment determination for the area.

EPA notes that this final action only relates to the initial one-year extension. As described in Section 181(a)(5) of the CAA, areas may qualify for up to 2 one-year extensions. If requested at a future date, EPA will make a determination of the appropriateness of a second one-year extension for the Atlanta Area for the 1997 8-hour ozone NAAQS in a separate rulemaking.

III. Final Action

EPA is taking final action to approve Georgia's June 9, 2010, request for EPA to grant a one-year extension (from June 15, 2010, to June 15, 2011) of the Atlanta Area attainment date for the 1997 8-hour ozone NAAQS. EPA has determined that Georgia has met the statutory requirements for such an extension.

IV. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission or request from the states that comply with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing the state's request for an extension of the 1997 8-hour ozone NAAQS attainment date for the Atlanta Area, EPA's role is to approve state's request, provided that they meet the criteria of the CAA. Accordingly, this action merely approves a state's request for an extension of the 1997 8-hour ozone NAAQS attainment date as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action 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).

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 appropriate circuit by January 31, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 81

• Environmental protection
• Air pollution control

Dated: November 17, 2010.

Stanley Meiburg,

Acting Regional Administrator, Region 4.

40 CFR part 81 is amended as follows:

PART 81—[AMENDED]

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

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

2. In § 81.311, the table entitled “Georgia—Ozone (8-Hour Standard)” is amended under “Atlanta, GA” by revising the entries for “Barrow County,” “Bartow County,” “Carroll County,” “Cherokee County,” “Clayton County,” “Cobb County,” “Coweta County,” “DeKalb County,” “Douglas County,” “Fayette County,” “Forsyth County,” “Fulton County,” “Gwinnett County,” “Hall County,” “Henry County,” “Newton County,” “Paulding County,” “Rockdale County,” “Spalding County,” and “Walton County” to read as follows:

§ 81.311

Georgia.

* * * * *

Georgia—Ozone (8-Hour Standard)

Designated	Designation a		Category/classification
	Date 1	Type	Date 1	Type
Atlanta, GA:
Barrow County	This action is effective November 30, 2010	Nonattainment	April 7, 2008	Subpart 2/Moderate 4.
Bartow County	This action is effective November 30, 2010	Nonattainment	April 7, 2008	Subpart 2/Moderate 4.
Carroll County	This action is effective November 30, 2010	Nonattainment	April 7, 2008	Subpart 2/Moderate 4.
Cherokee County	This action is effective November 30, 2010	Nonattainment	April 7, 2008	Subpart 2/Moderate 4.
Clayton County	This action is effective November 30, 2010	Nonattainment	April 7, 2008	Subpart 2/Moderate 4.
Cobb County	This action is effective November 30, 2010	Nonattainment	April 7, 2008	Subpart 2/Moderate 4.
Coweta County	This action is effective November 30, 2010	Nonattainment	April 7, 2008	Subpart 2/Moderate 4.
DeKalb County	This action is effective November 30, 2010	Nonattainment	April 7, 2008	Subpart 2/Moderate 4.
Douglas County	This action is effective November 30, 2010	Nonattainment	April 7, 2008	Subpart 2/Moderate 4.
Fayette County	This action is effective November 30, 2010	Nonattainment	April 7, 2008	Subpart 2/Moderate 4.
Forsyth County	This action is effective November 30, 2010	Nonattainment	April 7, 2008	Subpart 2/Moderate 4.
Fulton County	This action is effective November 30, 2010	Nonattainment	April 7, 2008	Subpart 2/Moderate 4.
Gwinnett County	This action is effective November 30, 2010	Nonattainment	April 7, 2008	Subpart 2/Moderate 4.
Hall County	This action is effective November 30, 2010	Nonattainment	April 7, 2008	Subpart 2/Moderate 4.
Henry County	This action is effective November 30, 2010	Nonattainment	April 7, 2008	Subpart 2/Moderate 4.
Newton County	This action is effective November 30, 2010	Nonattainment	April 7, 2008	Subpart 2/Moderate 4.
Paulding County	This action is effective November 30, 2010	Nonattainment	April 7, 2008	Subpart 2/Moderate 4.
Rockdale County	This action is effective November 30, 2010	Nonattainment	April 7, 2008	Subpart 2/Moderate 4.
Spalding County	This action is effective November 30, 2010	Nonattainment	April 7, 2008	Subpart 2/Moderate 4.
Walton County	This action is effective November 30, 2010	Nonattainment	April 7, 2008	Subpart 2/Moderate 4.
*         *         *         *         *         *         *
a Includes Indian Country located in each county or area, except as otherwise specified.
1 This date is June 15, 2004, unless otherwise noted.
2 Effective April 15, 2008.
3 The boundary change is effective October 13, 2006.
4 Attainment date extended to June 15, 2011.

* * * * *