[Federal Register Volume 61, Number 204 (Monday, October 21, 1996)]
[Rules and Regulations]
[Pages 54560-54563]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26874]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81

[WA53-7126 FRL-5637-3]


Approval and Promulgation of Maintenance Plan for Air Quality 
Planning Purposes for the State of Washington: Carbon Monoxide

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is redesignating the 
Vancouver nonattainment area to attainment for the carbon monoxide (CO) 
air quality standard and approving a maintenance plan that will insure 
that the area remains in attainment. Under the Clean Air Act (CAA) as 
amended in 1990, designations can be revised if sufficient data is 
available to warrant such revisions. In this action, EPA is approving 
the Washington Department of Ecology's request because it meets the 
redesignation requirements set forth in the CAA. In addition, EPA is 
approving a related State Implementation Plan (SIP) revision, the 1990 
base year emission inventory for CO emissions, which includes emissions 
data for sources of CO in the Vancouver, Washington CO nonattainment 
area.

EFFECTIVE DATE: This rule is effective as of October 21, 1996.

ADDRESSES: Copies of the State's redesignation request and other 
information supporting this action are available during normal business 
hours at the following locations: EPA, Alaska-Washington Unit (OAQ-
107), 1200 Sixth Avenue, Seattle, Washington, 98101, and the Washington 
State Department of Ecology, Air Quality Program, P.O. Box 47600, 
Olympia, Washington, 98504-7600.

FOR FURTHER INFORMATION CONTACT: William M. Hedgebeth, EPA Region 10, 
Office of Air Quality, at (206) 553-7369.

SUPPLEMENTARY INFORMATION:

I. Background

    In a March 15, 1991, letter to the EPA Region 10 Administrator, the 
Governor of Washington recommended that the Vancouver portion of the 
Portland-Vancouver Air Quality Maintenance Area be designated as 
nonattainment for carbon monoxide (CO) as required by section 
107(d)(1)(A) of the 1990 Clean Air Act Amendments (CAAA) (Public Law 
101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q). The area 
was designated nonattainment and classified as ``moderate,'' with a 
design value less than or equal to 12.7 ppm under the provisions 
outlined in sections 186 and 187 of the CAA. (See 56 FR 56694 (Nov. 6, 
1991), codified at 40 CFR Sec. 81.348.) On September 29, 1995, EPA 
approved the separation of the Portland-Vancouver CO nonattainment area 
into two distinct nonattainment areas, effective November 28, 1995. 
Because the Vancouver area had a design value of 10 ppm (based on 1988-
1989 data), the area was considered moderate. The CAA established an 
attainment date of December 31, 1995, for all moderate CO areas. The 
Vancouver area has ambient monitoring data showing attainment of the CO 
National Ambient Air Quality Standard (NAAQS) since 1992.
    On March 19, 1996, the Washington State Department of Ecology 
(Washington) submitted a CO redesignation request and a request for 
approval of a CO maintenance plan for the Vancouver area. On July 29, 
1996, EPA proposed to approve Washington's requested redesignation and 
maintenance plan. Washington has met all of the CAA requirements for 
redesignation pursuant to section 107(d)(3)(E). EPA has approved all 
SIP requirements for the Vancouver area that were due under the 1990 
CAA.
    Washington provided monitoring, modeling and emissions data to 
support its redesignation request. The 1992 CO attainment emissions 
inventory totals in tons per day are 76.43, 15.14, 164.3, and 67.84, 
respectively, for the area, non-road, mobile, and point sources. The 
emission budget established through the year 2006 is as follows:

                                          Vancouver CO Emission Budget                                          
                                             [Pounds per winter day]                                            
----------------------------------------------------------------------------------------------------------------
                                        1992         1995         1997         2001         2003         2006   
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Other sources.....................      318,823      318,259      327,317      344,693      350,365      359,089
Mobile budget.....................      328,606      300,000      300,000      270,000      270,000      260,000
                                   -----------------------------------------------------------------------------
      Total.......................      647,429      618,259      627,317      614,693      620,365      619,089
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    Washington relied on the existence of an approved Inspection and 
Maintenance (I/M) program as part of the maintenance demonstration. EPA 
approved the I/M program on September 25, 1996. Washington will 
discontinue implementation of the oxygenated fuel program in the 
Vancouver Consolidated Metropolitan Statistical Area (CMSA) once the CO 
maintenance plan is approved.
    Washington will retain the oxygenated fuels program as a 
contingency measure as required under section 175A(d) of the CAA. The 
program will be reimplemented the next full winter season following the 
date of a quality assured violation of the CO National Ambient Air 
Quality Standards (NAAQS).

II. Public Comment/EPA Response

    During the public comment period on EPA's proposed finding, the 
Agency received a number of comments from one commenter. No other 
comments were received. A discussion of those comments follows.
    1. The commenter asserted that the Maintenance Demonstration 
developed by the Southwest Air Pollution Control Authority (SWAPCA) was 
a direct result

[[Page 54561]]

of oxygenated fuels, that without oxygenated fuels there would have 
been two violations in 1994 using SWAPCA's own modeling, and that by 
taking away oxygenated fuels, Vancouver is taking away the one 
enforceable control measure that assured maintenance.
    Response: Under Title I of the CAA, Congress established a system 
of state and federal cooperativeness. EPA is required to establish the 
NAAQS, i.e., the level at which air quality is determined to be 
protective of human health. However, the states take the primary lead 
in determining the measures necessary to attain and maintain the NAAQS. 
These measures are incorporated into the SIP. The CAA requires EPA to 
approve a SIP submission that meets the requirements of the CAA. If the 
state fulfills its obligations in developing a SIP that meets the 
requirements of the CAA, EPA has no authority to supplement or revise 
that plan with a federal implementation plan.
    Once a state has attained the NAAQS for a particular pollutant, 
such as CO, and the state can demonstrate that it has met the other 
requirements specified in section 107(d)(3)(E) of the CAA, including 
the requirement for a maintenance plan, the state can request 
redesignation to attainment for the area. The maintenance plan, which 
is submitted as a revision to the state's SIP, must demonstrate 
maintenance of the NAAQS for ten years following redesignation. The 
maintenance plan need not be based on continued implementation of all 
the measures in the SIP prior to redesignation, but must provide that 
if a violation of the standard occurs, ``the State will implement all 
measures * * * which were contained in the [SIP] for the area before 
redesignation as an attainment area.'' CAA section 175(d).
    Washington submitted validated data that shows that the NAAQS for 
CO has been met. There has been no violation of this standard since 
1991. Other SIP requirements have been met and the Vancouver area meets 
the statutory requirements for redesignation to attainment. The 
maintenance plan includes oxygenated fuel as an enforceable contingency 
measure in the event of a violation of the NAAQS. EPA is satisfied that 
Washington and SWAPCA have documented that the NAAQS can be met in the 
ten-year period covered by the maintenance plan without oxygenated fuel 
and that in the event the standard is violated, adequate contingency 
control measures are in place to address the violation.
    2. The commenter asserted that ``[u]sing SWAPCA's emission 
inventory, projected attainment for ten years is not possible without 
oxyfuels. In 1994, there was an exceedance * * * associated with an 
emission inventory of 611.525 [sic] lbs/day. Vancouver will not be 
permanently below this inventory until sometime in 1999 without oxy 
fuels.''
    Response: The commenter is correct that there was an exceedance of 
the CO standard in 1994, for which year SWAPCA identified total CO 
emissions of 611,525 pounds per year in the 1992 Emissions Inventory. 
However, there was no violation of the CO NAAQS during 1994, nor were 
there any exceedances or violations of the CO NAAQS during either 1992 
or 1993, both of which years had higher total CO emissions (647,428 and 
642,193 pounds per year, respectively) than 1994. EPA is satisfied that 
the ten-year maintenance plan adequately projects maintenance without 
oxygenated fuel and that, in the event exceedances or violations occur, 
adequate, enforceable control measures exist to address those 
occurrences.
    3. The commenter asserted that ``SWAPCA violated both the letter 
and the spirit of the public involvement process. a.) No oxygenate 
representative was asked to be on the advisory committee. The TAC 
however did have two members of the petroleum industry. This led to a 
one sided presentation of the issues and a general lack of facts to the 
entire committee. b.) Due to the substantive change in nature from 
eliminating oxy fuels in 1996-1997 as opposed to what was originally in 
the document to be 1997-97 SWAPCA needed to extend their public hearing 
giving an additional 30 day public notice. They did not. This is a 
direct violation of the public hearing law. WADOE understood this and 
extended their hearing on the subject but SWAPCA did not.''
    Response: EPA's requirement regarding the public hearing process 
that states must follow is stated in section 110(l) of the CAA. In 
summary, EPA requires that each revision of a SIP be adopted by the 
state after ``reasonable notice and public hearing'' of the proposed 
change(s). The criteria EPA uses to determine whether the ``reasonable 
notice and public hearing'' requirement has been met are identified at 
40 C.F.R. Part 51, Appendix V. As indicated in the July 29, 1996, 
Notice of Proposed Rulemaking, Washington submitted evidence that two 
public hearings were held in Vancouver: one on December 19, 1995, by 
the Southwest Air Pollution Control Authority (SWAPCA) and the other on 
January 30, 1996, by Washington. In addition, Washington provided 
documentation that adequate notice of both public hearings had been 
provided. EPA is satisfied that the public participation process 
employed by PSAPCA meets this requirement. Any additional public 
procedures are at the State's discretion. EPA also notes that the 
commenter had the opportunity to provide comments during Washington's 
public comment period and the record shows that he provided such 
comment.
    4. The commenter wrote: ``The board was given misleading guidance 
by SWAPCA staff on key issue relating the SIP and CO maintenance plan 
adoption. Staff suggested to the Board that the Board could apply for 
re designation with the use of oxy fuels. That the use of oxy fuels 
would preclude being redesignated. This is absolutely not true and the 
board needs to reconsider given the true facts.''
    Response: EPA interprets this comment as asserting that SWAPCA 
relied on incorrect advice that the oxygenated fuel program could not 
be continued if it were no longer needed to maintain the NAAQS. 
Although section 211(m) of the CAA prohibits the federal government 
from requiring oxygenated gasoline if it is not needed for maintenance 
of the CO NAAQS, EPA believes that this section does not prevent a 
State from imposing such a program under its own authority. The record 
clearly shows that SWAPCA and Washington decided to remove oxygenated 
gasoline because they believe that it is not needed for maintenance of 
the NAAQS. This is documented in the responses to public comment by 
both SWAPCA and Washington, and in the Maintenance Plan. It is also 
important to point out that oxygenated gasoline is being retained as a 
contingency measure in the maintenance plan, as required by the CAA.
    EPA believes that, under the CAA, it is obligated to approve the 
maintenance plan and redesignation request submitted by a state if that 
request meets all of the requirements of the CAA. Under the CAA, the 
state takes the lead in developing a plan to attain and maintain the 
NAAQS. If the maintenance plan meets the requirements of the CAA, EPA 
must approve the plan under section 110(k)(3) of the CAA. Since 
Washington has submitted a maintenance plan that meets the requirements 
of section 175 of the CAA, EPA must approve the plan. Furthermore, 
Washington has demonstrated that the Vancouver area has met the 
redesignation criteria in section 107(d)(3)(E) of the CAA and, 
therefore, should be redesignated to attainment for CO. Since 
Washington

[[Page 54562]]

submitted a maintenance plan and redesignation request that comply with 
the CAA, and there is no issue as to whether Washington has the 
authority to implement the measures included in the submission, EPA has 
no authority to examine Washington's reasoning for selection of the 
measures in the maintenance plan.
    None of the comments provided information that contradicts EPA's 
finding that the Vancouver area has met the criteria for redesignation 
to attainment. Delay in redesignation of the Vancouver area to 
attainment is unwarranted and would deny redesignation to an area that 
meets Clean Air Act requirements for such redesignation. Therefore, EPA 
is redesignating the Vancouver area to attainment of the CO standard.

III. Rulemaking Action

    EPA is approving the Vancouver CO Maintenance Plan and Washington's 
request to redesignate the Vancouver area to attainment of the CO 
standard because Washington's submittal meets the requirements of 
section 107(d)(3)(E) of the CAA. This approval will revise the SIP for 
the Vancouver area that will assure that the CO standard continues to 
be maintained through the year 2006. Because EPA is approving the 
maintenance plan and because the area meets CAA requirements for 
redesignation to attainment, the Vancouver area will be designated as 
attaining the CO NAAQS. EPA is also approving Washington's 1990 base 
year emission inventory for CO emissions in the Vancouver CO 
nonattainment area.
    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 October 21, 1996 to provide 
as much time as possible for State and local air authorities to notify 
fuel distributors that distribution plans can be modified in response 
to these changes. In addition, this approval imposes no new 
requirements on sources since the measures in the maintenance plan were 
previously approved as part of the SIP and the maintenance plan 
contains no new requirement for the area.
    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.

IV. 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 
Clean Air Act 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, the 
Administrator certifies 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 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. U.S. EPA, 427 
U.S. 246, 255-66 (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. The 
Regional Administrator certifies 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 
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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate

[[Page 54563]]

circuit by December 20, 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).)

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations.

40 CFR Part 81

    Air pollution control.

    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: October 9, 1996.
Chuck Clarke,
Regional Administrator.

    Chapter I, title 40 of the Code of Federal Regulations is amended 
as follows:

PART 52--[AMENDED]

    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)(68) to read 
as follows:


Sec. 52.2470  Identification of plan.

* * * * *
    (c) * * *
    (68) On March 19, 1996, the Director of Washington State Department 
of Ecology (Washington) submitted to the Regional Administrator of EPA 
a revision to the Carbon Monoxide State Implementation Plan for the 
Vancouver area containing a maintenance plan that demonstrated 
continued attainment of the NAAQS for carbon monoxide through the year 
2006 and also containing an oxygenated fuels program as a contingency 
measure to be implemented if the area violates the CO NAAQS.
    (i) Incorporation by reference.
    (A) Letter dated March 19, 1996 from Washington to EPA requesting 
the redesignation of the Vancouver carbon monoxide nonattainment area 
to attainment and submitting the maintenance plan; the ``Supplement to 
the State Implementation Plan for Carbon Monoxide (CO) in Vancouver, 
WA--Redesignation Request for Vancouver, WA as Attainment for CO,'' 
dated December 19, 1995, and adopted on February 29, 1996.
    (B) Letters dated January 22, 1993 and April 22, 1994 from 
Washington to EPA submitting a revision and replacement pages to the 
State Implementation Plan; enclosure dated November 1992 entitled 
``Portland-Vancouver Carbon Monoxide Non-attainment Area (Washington 
State Portion), 1990 Base Year Emissions Inventory,'' together with the 
emission inventory replacement pages for carbon monoxide in Vancouver, 
dated December 1993.
    (ii) Additional material.
    (A) Appendices to the Vancouver Area Redesignation Request and 
Maintenance Plan for the National Ambient Carbon Monoxide Standard 
dated December 1995: Appendix A, Technical Analysis Protocol; Appendix 
B, Carbon Monoxide Air Quality Data Monitoring Network; Appendix C, 
Carbon Monoxide Saturation Study; Appendix D, Carbon Monoxide Air 
Quality Monitoring Data; Appendix E, Emission Inventory; Appendix F, 
Conformity Process; Appendix G, Historical and Projected Population, 
Employment and Households; Appendix H, Portland/Vancouver Carbon 
Monoxide Nonattainment Area Separation Documentation; Appendix I, 
Washington Department of Ecology Vancouver Carbon Monoxide Study; and 
Appendix J, Maintenance Planning Process.

PART 81--[AMENDED]

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

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

    2. In Sec. 81.348, the table for ``Washington-Carbon Monoxide,'' is 
amended by revising the entry for the Vancouver Area to read as 
follows:


Sec. 81.348  Washington.

* * * * *

                                           Washington-Carbon Monoxide                                           
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                                                  Designation                           Classification          
          Designated area          -----------------------------------------------------------------------------
                                      Date\1\               Type               Date\1\             Type         
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          *                *              *              *              *              *              *         
Vancouver Area:                                                                                                 
    Clark County (part) Air                      Attainment                                                     
     Quality Maintenance Area.                                                                                  
          *                *              *              *              *              *              *         
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\1\ This date is November 15, 1990, unless otherwise noted.                                                     

[FR Doc. 96-26874 Filed 10-18-96; 8:45 am]
BILLING CODE 6560-50-P