Air Plan Approval; GA: Non-Interference Demonstration and Maintenance Plan Revision for the Removal of Transportation Control Measures in the Atlanta Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by Georgia, through the Georgia Environmental Protection Division (GA EPD), on September 16, 2019, for the purpose of removing certain transportation control measures (TCMs) from the SIP for the thirteen counties in the Atlanta, Georgia, area. EPA is also approving Georgia's update to the 2008 8-hour ozone maintenance plan that was submitted in the September 16, 2019, SIP revision. Specifically, EPA is approving the updated mobile emissions inventory, the associated 2030 motor vehicle emissions budgets (MVEBs), and the measures offsetting the potential emissions increases due to removal of the TCMs from the Georgia SIP. This approval is based on the determination that this SIP revision will not interfere with attainment or maintenance of any national ambient air quality standards (NAAQS or standards) or any other Clean Air Act (CAA or Act) requirements.

DATES:

This rule is effective April 7, 2021.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R04-OAR-2019-0661. All documents in the docket are listed on the www.regulations.gov website. Although listed in the index, some information may not be 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 can either be retrieved electronically via www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation 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 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 a.m. to 4:30 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Dianna Myers, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. Ms. Myers can be reached via telephone at (404) 562-9207 or via electronic mail at Myers.Dianna@epa.gov.

SUPPLEMENTARY INFORMATION:

I. What is the background for this action?

On November 6, 1991 (56 FR 56694), EPA designated and classified the following counties in the Atlanta Area as a Serious ozone nonattainment area for the 1-hour ozone national ambient air quality standards (NAAQS): Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Paulding, and Rockdale (the Atlanta 1979 1-hour ozone Area). TCMs were implemented in the 13 counties comprising the Atlanta 1979 1-hour ozone Area. Because the Atlanta 1979 1-hour ozone Area failed to attain the 1-hour ozone NAAQS by November 15, 1999, EPA issued a final rulemaking action (68 FR 55469) on September 26, 2003, to reclassify the area to a Severe ozone nonattainment area. Subsequently, the Atlanta 1979 1-hour ozone Area attained the 1-hour ozone NAAQS, and thus EPA redesignated the nonattainment area to attainment for the 1-hour ozone NAAQS. See 70 FR 34660 (June 15, 2005). The 1979 1-hour ozone NAAQS was revoked, effective June 15, 2005. See 69 FR 23951 (April 30, 2004).

On April 30, 2004 (69 FR 23858), EPA designated the following 20 counties in the Atlanta Area as a Marginal nonattainment area for the 1997 8-hour ozone NAAQS: Barrow, Bartow, Carroll, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Hall, Henry, Newton, Paulding, Rockdale, Spalding, and Walton (Atlanta 1997 8-hour ozone Area). The Atlanta 1979 1-hour ozone Area is a subset of this 20-county area. EPA reclassified the Atlanta 1997 8-hour ozone Area as a Moderate nonattainment area on March 6, 2008, because the area failed to attain the 1997 8-hour ozone NAAQS by the required attainment date of June 15, 2007. See 73 FR 12013. Subsequently, the Atlanta 1997 8-hour ozone Area attained the 1997 8-hour ozone standard, and on December 2, 2013, EPA redesignated the-Atlanta 1997 8-hour ozone Area to attainment for the 1997 8-hour ozone NAAQS. See 78 FR 72040. The 1997 8-hour ozone NAAQS was revoked, effective April 6, 2015. See 80 FR 12264 (March 6, 2015).

On May 21, 2012 (77 FR 30088), EPA designated the following 15 counties as Marginal nonattainment for the 2008 8-hour ozone NAAQS: Bartow, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Newton, Paulding, and Rockdale (Atlanta 2008 8-hour ozone Area). The Atlanta 1979 1-hour ozone Area is a subset of the Atlanta 2008 8-hour ozone Area. The Atlanta 2008 8-hour ozone Area did not attain the 2008 8-hour ozone NAAQS by the attainment date of July 20, 2015, and therefore on May 4, 2016, EPA reclassified the area from a Marginal nonattainment area to a Moderate nonattainment area for the 2008 8-hour ozone standard. See 81 FR 26697. Subsequently, on July 14, 2016, EPA determined that the Atlanta 2008 8-hour ozone Area attained the 2008 8-hour ozone standard. See 81 FR 45419 (determination that the area attained the standard, also known as a Clean Data Determination). EPA redesignated the Atlanta 2008 8-hour ozone Area to attainment for the 2008 8-hour ozone NAAQS. See 82 FR 25523.

On October 26, 2015 (80 FR 65292), EPA revised the 8-hour ozone standard from 0.075 parts per million (ppm) to 0.070 ppm. Subsequently, on June 4, 2018 (83 FR 25776), EPA designated the following seven Atlanta counties as Marginal nonattainment for the 2015 8-hour ozone NAAQS: Bartow, Clayton, Cobb, Dekalb, Fulton, Gwinnett, and Henry (Atlanta 2015 8-hour ozone Area). The seven counties comprising the Atlanta 2015 8-hour ozone Area were also part of the 13-county Atlanta 1979 1-hour ozone Area. Areas designated as Marginal nonattainment must attain the standard by August 3, 2021. Although the attainment date is August 3, 2021, Marginal areas must show attainment using air quality data for years 2018 through 2020. Preliminary data indicates that the Atlanta Area will be able to attain the 2015 8-hour ozone NAAQS by the August 3, 2021, attainment deadline.

On September 16, 2019, Georgia submitted a SIP revision requesting removal of certain TCMs from the Georgia SIP. The following TCMs have been approved into the Georgia SIP: High Occupancy Vehicle (HOV) Lanes; High Occupancy Toll Lanes; Atlantic Station; Express Bus Routes; Improvements/Expansion of Bus Service; Park and Ride Lots; Transit Signal Preemption; Clean Fuel Buses; Clean Fuels Revolving Loan Program; Intersection Upgrade, Coordination and Computerization; ATMS/Incident Management; Regional Commute Options & HOV Marketing; Transportation Management Associations; Transit Incentives; and University Rideshare Programs. See 63 FR 23387 (April 29, 1998), 63 FR 34300 (June 24, 1998), 64 FR 13348 (March 18, 1999), 64 FR 20186 (April 26, 1999), 65 FR 52028 (August 28, 2000), 77 FR 24397 (April 24, 2012), and Table 1, Appendix A, Table 2-1 and Table 2-2 of Georgia's September 16, 2019, SIP revision. Georgia is requesting removal of all the TCMs that are approved into the SIP except for Intersection Upgrade, Coordination and Computerization.

Georgia's September 16, 2019, SIP revision includes a demonstration that two offset measures—school bus replacements and rail locomotive conversions—obtain the necessary emissions reductions to make up for the increases in nitrogen oxides (NO_X) and volatile organic compounds (VOC) emissions resulting from the TCM removals. Removing the TCMs will not worsen air quality because Georgia's offsets provided compensating, equivalent, and contemporaneous emissions reductions to negate the increases in emissions from NO_X and VOC. More information on the offsets is provided below.

The Georgia Environmental Protection Division (GA EPD) has a school bus early replacement program and a locomotive conversion program. School bus replacement projects that were completed in 2018 using Diesel Emissions Reduction Act funding have resulted in NO_X emissions reductions. Specifically, eighty-five older school buses (built in 1999-2005) in Fulton County were replaced with 2018 engine model year school buses. The Locomotive Conversion Program consists of two components in the Atlanta Area: (1) The conversion of three older Norfolk Southern Railway, Inc., traditional switcher locomotives into newly-available low emissions engine technology and (2) Norfolk Southern Railway, Inc.'s conversion of two switchers into “slugs” which are driven by electrical motors whose electricity is received from companion “mother” locomotives. The offsets available from both the school bus replacements and locomotive conversions total 38.85 tons per year (tpy) of NO_X. As there are 31.99 tpy of equivalent NO_X associated with removing the TCMs, the annual NO_X decreases from the school bus replacements and locomotive conversions will offset the removal of the TCMs with 6.86 tpy excess NO_X emissions offset that will remain available. As further detailed in EPA's June 30, 2020, notice of proposed rulemaking (NPRM), the school bus replacements and locomotive conversions were more than what was needed to compensate for the amount of NO_X and VOC increases associated with removing the TCMs.

Georgia's September 16, 2019, SIP revision also included an update to the on-road emissions inventory and associated 2030 MVEBs due to the removal of the TCMs. The on-road emissions inventory and safety margin allocation for the year 2030 were updated but the MVEB totals themselves remained unchanged. See Table 1 below.

In the June 30, 2020, NPRM (85 FR 39135), EPA proposed to approve the September 16, 2019, SIP revision. The details of Georgia's submittal and the rationale for EPA's action are further explained in the NPRM.

II. Response to Comments

EPA received three comments on the proposal. Overall, the commenters disagreed with EPA's proposal to approve removal of the TCMs from the Georgia SIP. EPA has summarized and responded to these adverse comments below.

Comment 1: A Commenter disagrees with EPA's proposal, asserting that Georgia EPD does not have “a very good reason for its request,” making the request seem “very arbitrary and capricious.” The Commenter goes on to discuss the expense to install the TCMs and the usable lifespans of the TCMs and questions the State's objective in removing the TCMs, while also acknowledging that EPA has “no purview” over the monetary costs of the TCMs. The Commenter mentions that there is not enough analysis to determine whether removal of the TCMs “will allow the state to meet [the] NAAQS” and questions the use of school bus fleets to offset the potential increase in emissions as a result of removal of certain TCMs from the SIP. Additionally, the Commenter mentions that the State failed to consider the increases in other pollutants such as carbon monoxide (CO) as a result of the retirement of the express bus fleets.

Response 1: EPA disagrees with the Commenter's assertions that this action is arbitrary and capricious and that there is not enough analysis to determine whether removal will allow the state to meet the NAAQS. With respect to the Commenter's assertion that Georgia EPD “does not have a very good reason for its request,” EPA notes that, with respect to SIPs, “each State is given wide discretion in formulating its plan,” so long as the revision is consistent with the applicable requirements of the CAA, including section 110(l). See Union Elec. Co. v. EPA, 427 U.S. 246, 250 (1976); see also Alabama Envtl. Council v. EPA, 711 F.3d 1277, 1280 (11th Cir. 2013), Sierra Club v. EPA, 939 F.3d 649, 673 (5th Cir. 2019), and Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004). CAA section 110(l) provides that the Administrator cannot approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA. Pursuant to section 110(k), EPA must approve a SIP revision that meets all applicable CAA requirements, including section 110(l).

In EPA's June 30, 2020, NPRM, the Agency provided specific analysis and rationale supporting its proposed approval of Georgia's September 16, 2019, SIP revision that demonstrates compliance with the CAA, including section 110(l). As Georgia is in nonattainment only for the 2015 8-hour ozone NAAQS, Georgia was only required to obtain offsets to ensure that the TCM removals would not affect attainment of the 2015 8-hour ozone NAAQS. Georgia provided a technical analysis including modeling showing that removal of the TCMs would not impact attainment or maintenance of any NAAQS, and that Georgia secured offsetting, contemporaneous, compensating, equivalent, emissions reductions for the 2015 8-hour ozone NAAQS. EPA reviewed Georgia's analysis and agrees with the methodology and the results. EPA is not aware of any information, and the Commenter did provide a demonstration or other information, that is contrary to EPA's analysis and proposed finding that Georgia's September 16, 2019, SIP revision complies with CAA section 110(l).

With respect to the offsets related to school buses, Georgia provided data and calculations regarding emission reductions attributable to school bus replacements in the September 16, 2019, SIP submittal, which was included in Georgia's 110(l) demonstration, and the Commenter did not provide any information indicating that these data and calculations are erroneous. As discussed above and further in the June 30 2020, NPRM, the school buses are only a part of the emissions reductions that Georgia used to offset the increase in emissions due to the removal of the TCMs, and between the locomotive and school bus offsets, Georgia has secured more than enough offsets to support removal of the TCMs.

Although the Commenter asserts that Georgia failed to consider the increases in other pollutants due to the retirement of the express bus fleets, the Atlanta Regional Commission's (ARC) activity-based modeling and Georgia's motor vehicle emissions modeling calculated the emissions associated with the removal of the TCMs pertaining to transit buses. Further, Georgia considered all pollutants in its analysis, but provided more detail with respect to pollutants that are likely to be increased due to the removal of the TCMs, specifically ozone and ozone precursors (NO_X and VOCs). Additional discussion regarding VOCs, NO_X, and particulate matter (PM) was included because VOC and NO_X emissions are also precursors for PM, and NO_X is also a precursor for nitrogen dioxide. The TCMs were not designed to reduce emissions of sulfur dioxide (SO₂), CO, and PM₁₀, and do not reduce SO₂, CO, and PM₁₀ emissions. See the June 30, 2020, NPRM for more detail.

With respect to the Commenter's assertions specific to CO, EPA disagrees. Removing the fleet of express buses as a TCM from the Georgia SIP will not cause a violation of the CO NAAQS. The transit bus fleet in the Atlanta area is mostly comprised of compressed natural gas and diesel, which have low CO emissions. Further, there has never been a designated CO nonattainment area in Georgia. Additionally, the current level of the CO NAAQS is 9 ppm on an 8-hour average and 35 ppm on a 1-hour average; the Atlanta Area's current design values for 2018-2019 are 2.0 ppm for the 8-hr average and 2.2 ppm for the 1-hour average, which equates to 78 percent and 94 percent below the standard, respectively.

Comment 2: A Commenter states that EPA should not remove the TCMs from the Georgia SIP, that removal of the controls will create an inconsistent regulatory environment that is contrary to the CAA, and that removal of the TCMs would give Georgia an unfair advantage. The Commenter also notes that the Georgia Department of Transportation (GDOT) issued a draft environmental impact statement (EIS) “for the Georgia SIPs” but that it was “delayed because of legal reasons.”

Response 2: EPA disagrees with the Commenter's assertions and is not clear on how the removal of the TCMs creates an inconsistent regulatory environment or gives Georgia an unfair advantage. The Agency notes that TCMs were adopted into the SIP as part of the State's discretion to implement measures to attain and maintain the NAAQS. The CAA requires each state to have a SIP, which is a federally-enforceable plan that identifies how the state will attain and maintain the NAAQS. As discussed previously, states have wide discretion in determining the control measures they choose to utilize in achieving and maintaining the NAAQS. A state has the option of revising its SIP so long as state and Federal requirements governing SIPs are met.

It is unclear from the comment how an EIS relates to this action or what draft EIS the Commenter is referring to. To the extent the Commenter suggests that the SIP or this SIP revision should have gone through an EIS process, EPA also disagrees. Generally, actions taken under the CAA are exempted from the National Environmental Policy Act of 1969 (NEPA), including this SIP action. See 15 U.S.C. 793(c)(1).

Comment 3: A Commenter contends that EPA cannot remove the TCMs from the Georgia SIP without “input and concurrence” from GDOT and the Georgia Department of Environmental Management. The Commenter goes on to assert that the SIP must be amended to ensure compliance with all Federal and state laws that address the construction of new facilities, the application of engineering standards, procedures or practices for new facilities, and must ensure the “highest level of protection,” specifically referencing the “Georgia Environmental Protection Act, as revised,” the CAA, and Federal requirements from the “Federal Aviation Act and Federal Motor Carrier Safety Improvement Act, as revised.”

Response 3: EPA agrees with the Commenter's assertion that Georgia's removal of the TCMs is subject to “input” from various agencies such as GDOT, and notes that the environmental agency for Georgia is GA EPD, the author of the September 16, 2019, SIP revision. Specifically, 40 CFR part 93 governs transportation conformity requirements pursuant to CAA section 176(c) and requires interagency consultation for certain actions. The interagency consultation process, set forth in 40 CFR 93.105, is a process in which Federal, state, and local jurisdictions consult on the status of air quality and transportation projects. The Atlanta interagency consultation group consists of transportation and air quality partners such as the Federal Highway Administration-GA Division, US EPA Region 4, GA EPD, GDOT, the ARC, Metropolitan Atlanta Rapid Transit Authority (MARTA), the Georgia Regional Transportation Authority, and several others. Before submitting the September 16, 2019, SIP revision requesting removal of the TCMs from the Georgia SIP, GA EPD consulted with the Atlanta interagency consultation group (which includes GDOT). None of the Atlanta Interagency Consultation partners expressed objection to the removal of the TCMs from the Georgia SIP.

In addition, EPA disagrees with the Commenter's other assertions. The removal of TCMs from Georgia's SIP does not involve the construction of new facilities. EPA's review and approval of SIPs is restricted to compliance with the CAA, rather than compliance with the Georgia Environmental Protection Act or the Federal Aviation Act and Federal Motor Carrier Safety Improvement Act. As discussed in more detail above and in the NPRM, states have discretion as to the contents of their plans, EPA must approve SIPs that meet the CAA requirements, and Georgia's September 16, 2019, SIP revision meets CAA requirements.

III. Final Action

EPA is taking final action to approve Georgia's September 16, 2019, SIP revision to remove certain TCMs from the Georgia SIP that are applicable within the Atlanta Area. This approval updates Georgia's 2008 8-hour ozone standard Maintenance Plan, specifically the on-road emissions inventory and the associated 2030 MVEBs, and measures offsetting the emissions increases due to removal of the TCMs. EPA is also determining that this SIP revision will not interfere with any requirement concerning attainment or any other applicable CAA requirement.

IV. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided they meet the criteria of the CAA. This action merely approves state law 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 Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• 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).

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 May 7, 2021. 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 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

For the reasons stated in the preamble, EPA amends 40 CFR part 52 as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

1. The authority citation for part 52 continues to read as follows:

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

Subpart L—Georgia

2. In § 52.570, amend paragraph (e) by adding an entry for “2008 8-hour ozone Maintenance Plan for the Atlanta Area, Revision for the Removal of Transportation Control Measures” at the end of the table to read as follows: