[Federal Register Volume 61, Number 187 (Wednesday, September 25, 1996)]
[Rules and Regulations]
[Pages 50235-50238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24523]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WA43-7116; FRL-5608-7]


Approval and Promulgation of Air Quality Implementation Plans; 
Washington; Revision to the State Implementation Plan Vehicle 
Inspection and Maintenance Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this action, EPA is approving the Inspection and 
Maintenance (I/M) State Implementation Plan (SIP), for Washington 
State. On August 21, 1995, Washington submitted SIP revision requests 
to the EPA to satisfy the requirements of sections 182(b)(4) and 
182(c)(3) of the Clean Air Act, (1990) and Federal I/M rule 40 CFR part 
51, subpart S. These SIP revisions will require vehicle owners to 
comply with the Washington I/M program in the two Washington ozone 
nonattainment areas classified as ``marginal'' and in the three carbon 
monoxide nonattainment areas classified as ``moderate''. This revision 
applies to the Washington counties of Clark, King, Pierce, Snohomish, 
and Spokane.

EFFECTIVE DATE: This rule is effective as of September 25, 1996.

ADDRESSES: Copies of material submitted to EPA may be examined during 
normal business hours at the following locations: EPA, Region 10, 
Office of Air Quality, 1200 Sixth Avenue (OAQ-107), Seattle, Washington 
98101, and the Washington State Department of Ecology, P.O. Box 47600, 
Olympia, WA 98504-7600.

FOR FURTHER INFORMATION CONTACT: Stephanie Cooper, Office of Air 
Quality, (OAQ-107), 1200 6th Avenue, Seattle, WA 98101, (206) 553-6917.

SUPPLEMENTARY INFORMATION:

I. Clean Air Act Requirements

    The Clean Air Act, as amended in 1990 (CAA or Act), requires States 
to make changes to improve existing I/M programs or implement new ones. 
Section 182(a)(2)(B) required any ozone nonattainment area which has 
been classified as ``marginal'' (pursuant to section 181(a) of the Act) 
or worse with an existing I/M program that was part of a SIP, or any 
area that was required by the 1977 Amendments to the Act to have an I/M 
program, to immediately submit a SIP revision to bring the program up 
to the level required in past EPA guidance or to what had been 
committed to previously in the SIP, whichever was more stringent. All 
carbon monoxide nonattainment areas were also subject to this 
requirement to improve existing or previously required programs to this 
level. In addition, any ozone nonattainment area classified as moderate 
or worse must implement a basic or an enhanced I/M program depending 
upon its classification, regardless of previous requirements.
    Congress directed the EPA in section 182(a)(2)(B) to publish 
updated guidance for State I/M programs, taking into consideration 
findings of the Administrator's audits and investigations of these 
programs. The States were to incorporate this guidance into the SIP for 
all areas required by the Act to have an I/M program. Ozone 
nonattainment areas classified as ``serious'' or worse with populations 
of 200,000 or more, and CO nonattainment areas with design values above 
12.7 ppm and populations of 200,000 or more, and metropolitan 
statistical areas with populations of 100,000 or more in the northeast 
ozone transport region, were required to meet EPA guidance for enhanced 
I/M programs.
    The EPA has designated two areas as ozone nonattainment in the 
State of Washington. The Puget Sound ozone nonattainment area is 
classified as marginal and contains King, Pierce, and Snohomish 
counties. The Vancouver Air Quality Maintenance Area is classified as 
marginal and contains Clark county. Additionally, three areas in 
Washington state are designated as CO nonattainment areas. Both the 
Spokane Carbon Monoxide Nonattainment area (Spokane County) and the 
Puget Sound Carbon Monoxide

[[Page 50236]]

Nonattainment area (King, Pierce, and portions of Snohomish Counties) 
have design values greater than 12.7 ppm and are designated as 
``moderate plus''. The Vancouver Air Quality Maintenance Area is a 
``moderate'' carbon monoxide nonattainment area, with a design value 
below 12.7 ppm. The central Puget Sound has an urbanized area 
population of 1,793,612, and Spokane has an urbanized area population 
of 266,709. Based on these nonattainment designations and populations, 
a basic I/M program is required in the Vancouver and Puget Sound ozone 
nonattainment area, while enhanced I/M programs are required in the 
Puget Sound and Spokane carbon monoxide nonattainment areas.
    By this action, the EPA is approving the submittal of the 
Washington I/M SIP. The EPA has reviewed the State submittal against 
the statutory requirements and for consistency with the EPA 
regulations. A summary of the EPA's analysis is provided below. In 
addition, a history and a summary to support approval of the State 
submittal is contained in a TSD, dated May 10, 1996, which is available 
from the Region 10 Office (address provided above).

II. I/M Regulation General SIP Submittal Requirements

    The original I/M regulation was codified at 40 CFR part 51, Subpart 
S, and required States to submit an I/M SIP revision which includes all 
necessary legal authority and the items specified in 40 CFR 51.372 
(a)(1) through (a)(8) by November 15, 1993. On September 18, 1995, the 
EPA published a final regulation establishing the ``low enhanced'' I/M 
requirements, pursuant to section 182 and 187 of the Act (40 CFR part 
51). These low enhanced I/M requirements superseded the former enhanced 
I/M requirements. The State has met the low enhanced I/M requirements 
established by the September 18, 1995 rulemaking.

III. State Submittal

    On August 21, 1995, the State of Washington submitted the I/M SIP 
for its five carbon monoxide and ozone nonattainment areas. Public 
hearings for the submittal were held in Vancouver, Bellevue, and 
Spokane on June 6, 7, and 8, 1995, respectively.
    The submittals provide for the continued implementation of I/M 
programs in the Puget Sound, Spokane, and Vancouver areas. Inspection 
and Maintenance programs have been running in the Puget Sound area 
since 1982, in Spokane since 1985, and in Vancouver since 1993. 
Washington's centralized, test only, biennial program meets the 
requirements of EPA's low enhanced performance standard and other 
requirements contained in the Federal I/M rule in the applicable 
nonattainment counties. Testing will be overseen by the Washington 
State Department of Ecology and its I/M contractor, Systems Control. 
Other aspects of the Washington I/M program include: testing of 1968 
and later light duty vehicles and trucks and heavy duty trucks, a test 
fee to ensure the State has adequate resources to implement the 
program, enforcement by registration denial, a repair effectiveness 
program, contractual requirements for testing convenience, quality 
assurance, data collection, reporting, test equipment and test 
procedure specifications, public information and consumer protection, 
and inspector training and certification. In addition, the low enhanced 
I/M programs will include: a two-speed (2500 and idle) test or a loaded 
idle test, and a program to evaluate on-road testing. An analysis of 
how the Washington I/M program meets the EPA's I/M regulation was 
provided in 61 FR 38086, published on July 23, 1996.
    The criteria used to review the submitted SIP revision are based on 
the requirements stated in Section 182 of the CAA and the most recent 
Federal I/M regulations (September 18, 1995). EPA has reviewed the 
Washington I/M SIP revision. The Washington regulations and 
accompanying materials contained in the SIP represent an acceptable 
approach to the I/M requirements and meet the criteria required for 
approvability.

IV. Response to Comments

    Comment: One commenter, which is an entity of the Federal 
government, objected to an aspect of the I/M program regarding emission 
inspections by fleet operators. Operators who chose to utilize the 
fleet vehicle self-testing program must purchase certificate forms by 
paying a fee of $12 per vehicle. The state regulation that establishes 
vehicle testing requirements at WAC Sec. 173-422-160 waives the payment 
of fees for state and local government fleets. The Federal entity 
commented that the state requirements are impermissibly discriminatory 
and an unconstitutional tax of the Federal government by the state. The 
commenter also wrote that the $12 fee per vehicle certificate is 
impermissible because the fee exceeds the state's administrative costs.
    Response: The EPA does not agree that the state fee structure which 
requires payment of a fee by Federal fleet operators impermissibly 
discriminates against the Federal government or that the fee of $12 is 
impermissibly high. The Ecology regulations at WAC 173-422-160 
establish requirements for all fleet operators, including the 
requirement for fleet operators to submit certificate forms of emission 
self-testing for each vehicle, at a cost of $12 for each certificate. 
The regulation specifically waives the payment for fleet forms only for 
state and local government fleets.
    The EPA interprets section 118 of the CAA requirement that Federal 
agencies comply with air pollution requirements ``in the same manner 
and to the same extent as any nongovernmental entity'' to mean that 
Federal entities must comply with any air pollution rule established 
under the Act to no less an extent than nongovernmental entities. In 
this case, the state regulation applies to all fleet operators, both 
governmental and nongovernmental, and waives the fee requirement only 
for state and local governments. Therefore, the EPA views the state as 
requiring payment of fees by Federal entities in the same manner as 
nongovernmental entities. The EPA believes that Congress has consented 
to the imposition of the state fees on Federal entities in a situation 
such as this by enacting section 118 of the CAA. In addition, EPA notes 
that this is consistent with the result in U.S. v. South Coast Air 
Quality Management District, 748 F.Supp. 732 (C.D. Calif. 1990), where 
the Court wrote that a state permit fee requirement applying to both 
Federal and private entities that exempts local and state government 
agencies is consistent with section 118 of the CAA.
    Under section 118(a) of the CAA, a Federal entity is required to 
comply with ``any requirement to pay a fee or charge imposed by a State 
or local agency to defray the costs of its air pollution regulatory 
program.'' The fee of $12 per vehicle has been established by Ecology 
under the authority of RCW 70.120.170(4), which requires Ecology to set 
fees at an amount ``required to (i) compensate the contractor or 
inspection facility owner, and (ii) offset the general fund appropriate 
to the department to cover the administrative costs of the motor 
vehicle emission inspection program.'' Ecology has written that it 
established fleet self-testing fees to recoup the costs associated with 
implementing the emission testing program, including the cost of 
equipment audits, travel expenses, training and continued education, 
printing and storing of forms, and the certification of the self-
testing fleet inspection personnel. The commenter has not submitted any 
data to indicate

[[Page 50237]]

that the fee of $12 per vehicle is unreasonable and EPA concludes that 
on its face the fee does not appear to be unreasonable. EPA is 
approving the fee structure because the State has established the fee 
consistent with the CAA and state law. Under section 110(k)(3) of the 
CAA, EPA must approve any SIP revision submitted by a state that meets 
all of the applicable requirements of the Act.
    Comment: One Federal government entity commented that Ecology is 
improperly requiring annual inspection of its fleet.
    Response: Legislation enacted by the State of Washington at RCW 
70.120.170(5) requires ``all units of local government and agencies of 
the state'' to test the emissions of their vehicles annually. In 
discussions with the Ecology about this comment, Ecology has agreed 
that Federal entities are not subject to this requirement, and need 
only meet the requirement to test emissions biennially, as required by 
RCW 70.120.170(1).

V. Today's Action

    The EPA is approving the Washington I/M SIP as meeting the 
requirements of the CAA and the Federal I/M rule. All required SIP 
items have been adequately addressed as discussed in this Federal 
Register action.
    Pursuant to Section 553(d)(3) of the Administrative Procedures Act 
(APA), this final notice is effective upon the date of publication in 
the Federal Register. Section 553(d)(3) of the APA allows EPA to waive 
the requirement that a rule be published 30 days before the effective 
date if EPA determines there is ``good cause'' and publishes the 
grounds for such a finding with the rule. Under section 553(d)(3), EPA 
must balance the necessity for immediate federal enforceability of 
these SIP revisions against principles of fundamental fairness which 
require that all affected persons be afforded a reasonable time to 
prepare for the effective date of a new rule. United States v. 
Gavrilovic, 551 F 2d 1099, 1105 (8th Cir., 1977). The purpose of the 
requirement for a rule to be published 30 days before the effective 
date of the rule is to give all affected persons a reasonable time to 
prepare for the effective date of a new rule.
    EPA is making this rule effective upon September 25, 1996 to 
provide necessary rulemaking for the forthcoming Puget Sound Ozone and 
Carbon Monoxide Redesignations. The State relies on the existence of an 
approved I/M program as part of the carbon monoxide maintenance 
demonstration. The WDOE will discontinue implementation of the 
oxygenated fuel program in the Seattle-Tacoma-Everett Consolidated 
Metropolitan Statistical Area (CMSA) once approval of the carbon 
monoxide maintenance plan becomes effective. As much time as possible 
needs to be provided for State and local air authorities to notify fuel 
distributors so that distribution plans can be modified in response to 
these changes.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.

VI. Administrative Requirements

A. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, Part D of the CAA 
do not create any new requirements, but simply approve requirements 
that the state is already imposing. Therefore, because the federal SIP-
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the federal-state relationship under the CAA, 
preparation of a regulatory flexibility analysis would constitute 
federal inquiry into the economic reasonableness of state action. The 
CAA forbids EPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 
U.S.C. 7410(a)(2).
    Redesignation of an area to attainment under section 107(d)(3)(E) 
of the CAA does not impose any new requirements on small entities. 
Redesignation is an action that affects the status of a geographical 
area and does not impose any regulatory requirements on sources. I 
certify that the approval of the redesignation request will not affect 
a substantial number of small entities.

C. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
Federal requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

E. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the

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appropriate circuit by November 25, 1996. 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 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), 42 U.S.C. 7607(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Nitrogen dioxide, Ozone, 
Volatile organic compounds.

    Note: Incorporation by reference of the Implementation Plan for 
the State of Washington was approved by the Director of the Office 
of Federal Register on July 1, 1982.

    Dated: September 6, 1996.
Chuck Clarke,
Regional Administrator.

PART 52--[AMENDED]

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:
    1. The authority citation for Part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart WW--Washington

    2. Section 52.2470 is amended by adding paragraph (c)(61) to read 
as follows:


Sec. 52.2470  Identification of plan.

* * * * *
    (c) * * *
    (61) SIP revisions received from WDOE on August 21, 1995, requiring 
vehicle owners to comply with its I/M program in the two Washington 
ozone nonattainment areas classified as ``marginal'' and in the three 
carbon monoxide nonattainment areas classified as ``moderate''. This 
revision applies to the Washington counties of Clark, King, Pierce, 
Snohomish, and Spokane.
    (i) Incorporation by reference.
    (A) July 26, 1995 letter from Director of WDOE to the Regional 
Administrator of EPA submitting revisions to WDOE's SIP consisting of 
the July 1995 Washington State Implementation Plan for the Motor 
Vehicle Inspection and Maintenance Program (including Appendices A 
through F), adopted August 1, 1995, and a supplement letter and ``Tools 
and Resources'' table dated May 10, 1996.

[FR Doc. 96-24523 Filed 9-24-96; 8:45 am]
BILLING CODE 6560-50-P