[Federal Register Volume 63, Number 48 (Thursday, March 12, 1998)]
[Rules and Regulations]
[Pages 12007-12013]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5978]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[WA 54-7127; FRL-5975-8]


Clean Air Act Reclassification; Spokane, Washington Nonattainment 
Area, Carbon Monoxide

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: In this document, EPA is making a final determination that the 
Spokane, Washington carbon monoxide (CO) nonattainment area has not 
attained the CO national ambient air quality standard (NAAQS) under the 
Clean Air Act (the Act). This finding is based on EPA's review of 
monitored air quality data for compliance with the CO NAAQS. As a 
result of this finding, the Spokane, Washington nonattainment area is 
reclassified as a serious CO nonattainment area by operation of law. 
The result of the reclassification is to establish a period of 18 
months from the effective date of this action for the State of 
Washington to submit a new State Implementation Plan (SIP) 
demonstrating attainment of the CO NAAQS as expeditiously as practical 
but no later than December 31, 2000, the attainment date for serious 
areas under the Act.

EFFECTIVE DATE: This action is effective on April 13, 1998.

FOR FURTHER INFORMATION CONTACT: William M. Hedgebeth, Environmental 
Protection Agency, Region 10, 1200 Sixth Avenue, M/S OAQ-107, Seattle, 
Washington 98101, telephone (206) 553-7369.

SUPPLEMENTARY INFORMATION:

I. Background

A. CAA Requirements and EPA Actions Concerning Designations and 
Classifications

    The Clean Air Act Amendments of 1990 (CAAA) were enacted on 
November 15, 1990. Under Section 107(d)(1)(C) of the CAAA, each CO area 
designated nonattainment prior to enactment of the CAAA, such as the 
Spokane, Washington area, was designated nonattainment by operation of 
law upon enactment of the CAAA. Under Section 186(a) of the Act, each 
CO area designated nonattainment under Section 107(d) was also 
classified by operation of law as either ``moderate'' or ``serious'' 
depending on the severity of the area's air quality problem. CO areas 
with design values between 9.1 and 16.4 parts per million (ppm), such 
as the Spokane area, were classified as moderate. These nonattainment 
designations and classifications were codified in 40 CFR Part 81. See 
56 FR 56694 (November 6, 1991).
    States containing areas that were classified as moderate 
nonattainment by operation of law under Section 107(d) were required to 
submit SIPs designed to attain the CO NAAQS as expeditiously as 
practicable but no later than December 31, 1995.1 Moderate 
areas failing to attain the CO NAAQS by that deadline are reclassified 
to serious, by operation of law.
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    \1\ The moderate area SIP requirements are set forth in Section 
187(a) of the Act and differ depending on whether the area's design 
value is below or above 12.7 ppm. The Spokane area has a design 
value below 12.7 ppm. 40 CFR 81.348.
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B. Effect of Reclassification

    CO nonattainment areas reclassified as serious are required to 
submit, within 18 months of the area's reclassification, SIP revisions 
providing for attainment of the CO NAAQS as expeditiously as 
practicable but no later than December 31, 2000. In addition, the State 
must submit a SIP revision that includes: (1) a forecast of vehicle 
miles traveled (VMT) for each year before the attainment year and 
provisions for annual updates of these forecasts; (2) adopted 
contingency measures; and (3) adopted transportation control measures 
and strategies to offset any growth in CO emissions from growth in VMT 
or number of vehicle trips. See Sections 187(a)(7), 187(a)(2)(A), 
187(a)(3), 187(b)(2), and 187(b)(1) of the Act. Finally, upon the 
effective date of this reclassification, contingency measures in the 
moderate area plan for the Spokane nonattainment area must be 
implemented.

[[Page 12008]]

C. Proposed Finding of Failure To Attain

    On July 1, 1996, EPA proposed to find that the Spokane, Washington 
CO nonattainment area had failed to attain the CO NAAQS by the 
applicable attainment date. 61 FR 33879. This proposed finding was 
based on CO monitoring data collected at the 3rd and Washington 
monitoring site in downtown Spokane during the years 1994 and 1995. 
These data demonstrate violations of the CO NAAQS in 1995. For the 
specific data considered by EPA in making this proposed finding, see 61 
FR 33879, July 1, 1996.

D. Reclassification to a Serious Nonattainment Area

    EPA has the responsibility, pursuant to Sections 179(c) and 
186(b)(2) of the Act, of determining whether the Spokane area has 
attained the CO NAAQS. Under Section 186(b)(2)(A), if EPA finds that 
the area has not attained the CO NAAQS, it is reclassified as serious 
by operation of law. Pursuant to Section 186(b)(2)(B) of the Act, EPA 
must publish a document in the Federal Register identifying areas which 
failed to attain the standard and therefore must be reclassified as 
serious by operation of law.
    EPA makes attainment determinations for CO nonattainment areas 
based upon whether an area has two years (or eight consecutive 
quarters) of clean air quality data.2 Section 179(c)(1) of 
the Act states that the attainment determination must be based upon an 
area's ``air quality as of the attainment date.'' Consequently, EPA 
determines whether an area's air quality has met the CO NAAQS by the 
required date based upon the most recent two years of air quality data.
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    \2\ See generally memorandum from Sally L. Shaver, Director, Air 
Quality Strategies and Standards Division, EPA, to Regional Air 
Office Directors, entitled ``Criteria for Granting Attainment Date 
Extensions, Making Attainment Determinations, and Determinations of 
Failure to Attain the NAAQS for Moderate CO Nonattainment Areas,'' 
October 23, 1995.
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    EPA determines a CO nonattainment area's air quality status in 
accordance with 40 CFR 50.8 and EPA policy.3 EPA has 
promulgated two NAAQS for CO: an 8-hour average concentration and a 1-
hour average concentration. Because there were no violations of the 1-
hour standard in the Spokane area, this document addresses only the air 
quality status of the Spokane area with respect to the 8-hour standard. 
The 8-hour CO NAAQS requires that not more than one non-overlapping 8-
hour average in any year per monitoring site can exceed 9.0 ppm (values 
below 9.5 are rounded down to 9.0 and they are not considered 
exceedances). The second exceedance of the 8-hour CO NAAQS at a given 
monitoring site within the same year constitutes a violation of the CO 
NAAQS. In the case of Spokane, EPA finds there were four violations of 
the CO NAAQS recorded in 1995. Based on EPA's review of all of the 
information assembled to evaluate the monitor location and other 
information, EPA finds that the recorded violations show that the area 
failed to attain the CO NAAQS by December 31, 1995.
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    \3\ See memorandum from William G. Laxton, Director, Technical 
Support Division, entitled ``Ozone and Carbon Monoxide Design Value 
Calculations,'' June 18, 1990. See also Shaver memorandum.
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II. Response to Comments on Proposed Finding

    In response to its July 1, 1996, proposal, EPA received a number of 
comments from the state and local governments, industry and local 
businesses, public interest organizations, and private citizens from 
the Spokane area. Below is EPA's response to all substantive comments 
received, and detailed response to each comment is included in the 
docket for this rulemaking.
    1. A number of commenters had concerns that the location of the 
monitor which recorded the violations of the CO NAAQS produced unusual 
results, and that the conditions contributing to higher CO 
concentrations at the 3rd and Washington site are significantly 
different from those causing CO concentrations at other monitoring 
sites. One commenter noted that CO concentrations drop significantly in 
all directions moving away from the monitoring station, even at those 
intersections with higher traffic and poorer levels of service. A 
commenter stated that the lack of higher CO concentrations as traffic 
moves eastward would indicate vehicle congestion on Third Avenue, while 
a contributor to background concentrations, is not causing the higher 
readings recorded at the monitor. Another commenter believed it was 
necessary to conduct a microinventory emissions inventory to see if 
other sources in the area of the monitor at 3rd and Washington could be 
contributing to exceedances. A commenter wrote that EPA's recent 
technical audit of the monitor having the violations in 1995 failed to 
provide information related to the causes of the violation. A commenter 
believes that, without an accurate inventory of Btu output during these 
conditions it would be premature to determine the cause of violations 
or begin developing SIP control strategies in the event of 
reclassification.
    Response: It is generally recognized that carbon monoxide monitors, 
especially those measuring street canyons, will be strongly influenced 
by local conditions. So it is not unusual or unexpected for different 
locations in a CO nonattainment area to have different recorded CO 
levels because of conditions specific to those locations. It is the 
nature of carbon monoxide that levels at one monitor do not necessarily 
represent general levels within the entire city, and that locations 
within any specific large (city-size) geographic area may have widely 
differing concentrations. EPA has long recognized that ``the diversity 
of measured concentrations and the diversity of land use suggest that 
there may be no one station that is representative of the entire city. 
Therefore, stations should probably be chosen to represent various 
aspects of the city's CO concentration distribution.'' 4 EPA 
further recognized that ``. . . concentrations at 3 meters above a 
downtown street can change by several parts per million (or a factor of 
nearly 2) over distances of only a few tens of meters.'' 5 A 
Spokane County Air Pollution Control Authority survey of stationary 
sources in the downtown area around the 3rd/Washington monitor 
indicated minimal CO contribution from businesses, schools, and 
apartments in that area.
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    \4\ EPA Document EPA 450/3-75-077, Selecting Sites for Carbon 
Monoxide Monitoring, September 1975, I.A., Introduction, Monitoring 
Site Standards.
    \5\ EPA Document EPA 450/3-75-077, Selecting Sites for Carbon 
Monoxide Monitoring, September 1975, I.C., Introduction, Special 
Characteristics of Carbon Monoxide That Affect Monitoring Site 
Selection.
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    EPA agrees that understanding the causes of the CO violations is an 
important step in planning how to address CO in Spokane. However, the 
CAAA does not authorize EPA to delay a finding of failure to attain the 
NAAQS until after the exact causes of the violations have been 
identified.
    EPA has been part of a cooperative effort to understand the causes 
of the violations and plan control strategies. EPA entered into a four-
agency Memorandum of Agreement (the others being the the Spokane 
Regional Transportation Council, Spokane County Air Pollution Control 
Authority, and the Washington Department of Ecology), which is included 
in the docket for this rulemaking. The primary purpose of the Agreement 
was to coordinate additional studies to clarify why the 3rd and 
Washington monitor was recording high CO levels. The

[[Page 12009]]

results of the work done since the proposed finding of failure to 
attain has increased EPA's confidence that the recorded violations were 
valid and provide the basis for making redesignation decisions.
    2. Several commenters wrote that the CO Ambient Air Monitoring 
Station at 3rd and Washington in Spokane is not sited properly in 
accordance with applicable EPA guidelines. The following are EPA 
responses to specific points that were made in comments.
    a. A commenter stated that the inlet is not located at a mid-block 
location as recommended by EPA guidance documents, but instead is 
located at a car dealership's service area entrance two thirds of the 
way down the block.
    Response: EPA is satisfied that the inlet was located appropriately 
and consistent with EPA's regulations and guidance. The microscale 
inlet probes must be located at least 10 meters from an intersection 
(the probe was located at a measured 19.2 meters from intersection of 
3rd and Washington). Mid block location for microscale sites is not 
mandatory. The sample probe location in relationship to its location 
within the block is within EPA's ``Appendix E'' guidelines, which can 
be found in the docket for this rulemaking.
    b. Commenter stated that ``EPA siting criteria require an 
unrestricted airflow of at least 180 degrees around a sample probe 
located on the side of a building. There is an awning overhanging the 
service entrance to the car dealership and immediately adjacent (about 
one meter) to the probe. This awning will cause micro-scale eddies 
disturbing the airflow at the sample inlet.''
    Response: EPA does not consider the awning an obstruction since the 
probe is located 1.1 meters below its underside. EPA believes that the 
unrestricted airflow requirements are being met, and that the inlet 
airflow is not unduly restricted.
    c. Commenter wrote that ``EPA siting criteria also require placing 
probes to avoid introducing bias to the sample. With the sample probe 
inlet located immediately adjacent to the service area entrance and 
vehicle drop off zone, the sample is very likely affected by nearby CO 
emissions from the service area, the existing awning on the building 
and the building parking area overhang wake effect.''
    Response: No evidence has been provided that placement of the probe 
immediately adjacent to the service area entrance and vehicle drop off 
zone has unduly biased the monitor results. In addition, the 
exceedances at this monitor have occurred in the afternoon to early 
evening, when it would be much less likely for cars to be queuing up to 
enter the service center.
    d. A commenter noted that while 3rd Street is a high volume 
arterial, the intersection being monitored is not among the City's 40 
most congested intersections according to the Spokane Regional 
Transportation Council.
    Response: The location of this monitor was selected by the State of 
Washington Department of Ecology based primarily on the results of a 
1988-1989 saturation study which is included in the docket for this 
rule. While this intersection may not be the most congested 
intersection in the City, this does not negate the fact that 
exceedances have been registered at this monitor location, supporting 
the conclusion that other factors, combined with traffic congestion, 
have played a part in the resulting exceedances.
    e. A commenter stated that ``the historical rationale for the site 
location appears to be a special purpose monitor, rather than a middle-
scale street canyon monitor. This affects both the appropriate siting 
criteria and the use of the data in nonattainment decision and area 
boundaries.''
    Response: The Washington Department of Ecology has designated this 
monitor as a special purpose monitor. That Agency has quality-assured 
the data from the monitor and entered the data from 1995 into EPA's 
Aerometric Information Retrieval System (AIRS) and has verified that 
the monitor meets the SLAMS (State and Local Air Monitoring Station) 
criteria of 40 CFR 58.13 and 58.22, and Appendices A and E of 40 CFR 
Part 58. The monitor is specifically identified in the State 
Implementation Plan approved by EPA as part of the Spokane carbon 
monoxide monitoring network. As noted above, EPA has determined that 
the monitor is properly sited for a microscale monitor and EPA has 
determined that the data is valid and appropriate for use in 
determining whether or not the Spokane CO nonattainment area attained 
the CO standard by December 31, 1995. See the response below on use of 
data from a special purpose monitor for attainment decisions.
    f. One commenter wrote that ``what is apparent is an inordinate 
difference between average highs of CO in December 1995 and the highest 
CO measured during those days in December 1995 when CO standard 
exceedances were measured. For example, both December 11 and 12, 1995, 
had hourly highs between 19 and 22 ppm, while the average highs for the 
months of December were 6.5 and 7 ppm. This large disparity indicates 
abnormal or anomalous CO readings or sources rather than an exceedance 
of the CO standard from ordinary CO sources and meteorological 
conditions.''
    Response: Since CO exceedances typically happen in times of 
inversions combined with periods of heavy traffic, the differences 
cited do not seem unusual. In times of unstable weather, when there is 
good air circulation, and especially when temperatures are above 
freezing, it would be expected that CO levels would be much lower 
because CO under such circumstances would tend to disperse fairly 
quickly. EPA does not agree with the commenter's conclusion that the 
disparity of readings over the month indicates a problem with the data.
    g. A commenter stated that CH2M Hill, under contract to the Spokane 
Area Chamber of Commerce, concluded that the Third Avenue monitor may 
not be sited according to EPA's CO monitor location standards and CO 
probe placement criteria. Commenter further stated that CH2M Hill 
concluded that the configuration of and activities at one building at 
Third and Washington significantly contributed to high CO readings at 
the Third Avenue monitor.
    Response: With regard to the proper citing of the monitor, as 
previously indicated, EPA has concluded that it was properly sited. 
With regard to the effect of one building at Third and Washington 
significantly contributing to high CO readings at the Third Avenue 
monitor, EPA agrees that such an effect is possible. The building, 
although only three stories tall, is the tallest building in that area 
of 3rd Avenue along the north side of Interstate 90. However, this does 
not affect the validity of the data registered at the monitor on 3rd 
Avenue during 1995. Rather, it is an issue which needs to be considered 
when identifying possible additional control measures to address the CO 
problem at this location.
    3. Several commenters wrote that data from a special purpose 
monitor should not be used for designation or redesignation decisions. 
A commenter believes that ``after reviewing the audit report and 
sections of 40 CFR part 58, there is a legitimate question as to the 
appropriateness of using a microscale special purpose monitor for the 
purpose of making attainment/nonattainment decisions.'' Another 
commenter wrote that EPA's regulations at ``40 CFR 58.14(a) implies 
that the official State and Local Air Monitoring Sites (SLAMS) are more 
appropriately used for demonstration of attainment or nonattainment.'' 
Another commenter wrote that ``arguably, a case could be made that the 
3rd and Washington

[[Page 12010]]

monitor meets the minimum criteria for a SLAMS site, but the language 
of 40 CFR 58.14(a) suggests that it is up to the discretion of the 
state (not EPA) to decide whether or not to use this special purpose 
monitoring data as the basis for such a significant decision as the 
status of attainment.'' Finally, a commenter stated that Spokane is the 
only CO nonattainment area facing imminent reclassification to 
``serious'' on the basis of microscale special purpose monitoring data 
and that all of the other nonattainment areas facing imminent 
reclassification are doing so on the basis of NAMS or SLAMS data.
    Response: EPA has considered data from microscale monitors or 
special purpose monitors for the purpose of making attainment/
nonattainment decisions, and has not established any limitations on the 
use of data from properly sited monitors that has been validated. On 
the contrary, EPA has long indicated that ``air quality standards must 
be met on all scales* * *'' 6 In addition, as indicated in a 
previous response, EPA has held that ``[i]n any large city there will 
be locations with widely differing concentrations, many of which are 
not representative of the city's general air quality. In fact, the 
diversity of measured concentrations and the diversity of land use 
suggest that there may be no one station that is representative of the 
entire city. Therefore, stations should probably be chosen to represent 
various aspects of the city's CO concentration distribution.'' 
7 EPA has further acknowledged that ``[t]he area presumed to 
be represented by a measurement may be relatively small, such as one 
side of a downtown street canyon* * *'' 8 The CO NAAQS, 8-
hour standard, requires that no place in the designated area exceed the 
standard. It cannot be determined if the area meets that standard 
unless it is determined that the standard is met on all scales.
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    \6\ EPA Document EPA 450/3-75-077, Selecting Sites for Carbon 
Monoxide Monitoring, September 1975, II.C., Deciding the Type of CO 
Measurements That Are To Be Made, Relative Importance of the 
Different Scales of Measurement.
    \7\ EPA Document EPA 450/3-75-077, Selecting Sites for Carbon 
Monoxide Monitoring, September 1975, I.A., Introduction, Monitoring 
Site Standards.
    \8\ EPA Document EPA 450/3-75-077, Selecting Sites for Carbon 
Monoxide Monitoring, September 1975, I.B., Introduction, Philosophy 
of Approach.
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    The issue of the appropriateness of using special purpose monitors 
for making attainment/nonattainment determinations has been addressed 
by EPA previously, and recently EPA issued guidance on this subject. In 
a memo dated August 22, 1997, entitled ``Agency Policy on the Use of 
Special Purpose Monitoring Data,'' which is included in the docket for 
this rulemaking, by John S. Seitz, Director of EPA's Office of Air 
Quality Planning and Standards, EPA wrote that ``[t]he Agency policy on 
the use of all special purpose monitoring data for any regulatory 
purpose, with the exception of fine particulate matter data (PM-2.5), 
is that all quality-assured and valid data meeting 40 CFR part 58 
requirements must be considered within the regulatory process. This 
policy applies to all ozone, carbon monoxide, sulfur dioxide, nitrogen 
dioxide, lead and particulate matter (PM-10) special purpose monitors, 
whether the data are reported into the AIRS database or available 
through other means.''
    EPA does not agree that 40 CFR 58.14(a) establishes that data for 
determining attainment must be measures at SLAMS or PSD stations. In 
this case, EPA is basing its determination on validated data from a 
special purpose monitor that has been set up as part of the State's 
monitoring network and specifically approved by EPA in the SIP. This 
section of EPA's regulations clearly anticipates the potential use of 
data other than that from SLAMS or PSD stations, and identifies the 
standards that the data must meet if used. Specifically, it states that 
``[a]ny ambient air quality monitoring station other than a SLAMS or 
PSD station from which the State intends to use the data as part of a 
demonstration of attainment or nonattainment or in computing a design 
value for control purposes of the National Ambient Air Quality 
Standards (NAAQS) must meet the requirements for SLAMS described in 
Sec. 58.22 and, after January 1, 1983, must also meet the requirements 
for SLAMS as described in Sec. 58.13 and appendices A and E to this 
part.'' The State of Washington Department of Ecology has certified 
that the monitor which recorded the four CO exceedances during 1995 met 
those requirements. EPA has already noted that the State of Washington 
specifically included this monitor in the approved SIP as an official 
part of the monitoring network for this nonattainment area.
    EPA does not agree that 40 CFR 58.14(a) authorizes State or Local 
agencies to decide whether to EPA may use data from a special purpose 
monitor that has been set up and specifically approved by EPA in the 
SIP for attainment determinations. Congress has authorized EPA, 
pursuant to Section 186(b)(2)(A) of the Clean Act, to make that 
determination based on valid data. As noted above, EPA recently 
clarified its policy on this subject in the Seitz memo issued on August 
22, 1997, entitled ``Agency Policy on the Use of Special Purpose 
Monitoring Data.'' That memo clarifies that ``all special purpose 
monitoring data for any regulatory purpose, with the exception of fine 
particulate matter data (PM-2.5), [with] quality-assured and valid data 
meeting 40 CFR part 58 requirements must be considered within the 
regulatory process.''
    4. Commenters were concerned that a reclassification is unnecessary 
and potentially counterproductive to the community's efforts to achieve 
long term attainment. One commenter asserted that reclassification is 
not necessary for Spokane to achieve long-term air quality goals. 
Another commenter was concerned that reclassification carries 
consequences which may be unintended but which severely limit the 
City's ability to attract new business and meet demands for public 
services. One commenter believed that reclassification will distract 
members of the general public, business community, local government and 
regulatory agencies when our efforts should be more focused on 
implementing measures we all agree can and should be implemented.
    Response: Congress established in Section 186(b)(2) of the Act that 
the Administrator of EPA is to make a determination whether the CO 
nonattainment area attained the CO NAAQS by December 31, 1995. That 
determination is based on available, verified data. If a determination 
is made that the area did not attain the CO NAAQS, the reclassification 
is made as a matter of law. The Act offers no flexibility for this 
requirement. The intent of the law is to ensure that the community 
achieve long term maintenance of this health-based standard. Congress 
also established in the Act certain SIP requirements for serious CO 
nonattainment areas and a schedule for submittal of the SIP after EPA 
makes the determination that the area failed to attain the CO standard.
    EPA supports the efforts already made by the Washington Department 
of Ecology, Spokane County Air Pollution Control Authority, and the 
Spokane Regional Transportation Council, and the commitments made by 
those agencies, with the expectation that the efforts already underway 
or in the planning stages will result in attainment and maintenance of 
the CO NAAQS in the future. EPA acknowledges the commenter's concern 
that reclassification to serious will be counterproductive to the 
community's efforts to achieve long term maintenance of the CO NAAQS. 
However, the planning and implementation of control

[[Page 12011]]

strategies resulting from the reclassification will incorporate control 
measures developed by representatives of the community to supplement 
those measures already in place and working to decrease the level of CO 
emissions in the nonattainment area. The process prescribed by state 
and federal law provides that the general public, business community, 
local government and regulatory agencies will work together to identify 
measures they agree can and should be implemented. This is already 
occurring, as evidenced by the Technical Advisory Committee convened by 
the Spokane County Air Pollution Control Authority to develop 
recommended transportation control measures to address the remaining CO 
problems in Spokane. As previously indicated, most of the control 
measures needed for the Spokane area to meet the national CO standard 
are already in place.
    5. A commenter wrote that ``EPA is required to respond to Executive 
Order 12866 determining whether regulatory action is significant. It is 
also required to respond to the Regulatory Flexibility Act, 5 U.S.C. 
601 et seq., assessing the impact of any proposed or final rule on 
small entities. Finally, EPA is required by the Unfunded Mandates Act 
of 1995 to assess whether various actions undertaken in association 
with proposed or final rule making include a federal mandate that may 
result in estimated costs of $100 million or more to the private 
sector, or to State and local governments in the aggregate.'' The 
commenter further stated that ``EPA's findings regarding these 
requirements are based upon a remarkably narrow construction of the 
language and violate the intent of the EO and respective statues. There 
will almost certainly be adverse economic impacts due to a 
reclassification. From recruiting new business to the area, to business 
retention and enhancing the vitality of our downtown core, the stigma 
of a serious designation will affect our ability to compete.''
    Response: A finding of failure to attain (and consequent 
reclassification by operation of law of the nonattainment area) under 
section 186(b)(2) of the Act, and the establishment of a SIP submittal 
schedule for a reclassified area, do not, in and of themselves, 
directly impose any new requirements on small entities. Congress 
established in the Act certain requirements that become effective once 
EPA makes findings of failure to attain based upon air quality 
considerations. Under section 182(b)(2), once EPA determines that air 
quality data shows a CO nonattainment area failed to meet the NAAQS, 
reclassification of the area to ``serious'' must occur by operation of 
law. As discussed more fully below in the section on Administrative 
Requirements, EPA believes that the reclassification action complies 
with the requirements cited by the commenter. This rulemaking simply 
makes a factual determination, and merely establishes a schedule for 
submittal of certain SIP requirements established by Congress in the 
Act that are automatically triggered. Therefore, the findings of 
failure to attain and reclassification, or the establishment of a new 
SIP submittal schedule, cannot be said to impose a materially adverse 
impact on State, local, or tribal governments or communities as 
identified by E.O. 12866. Similarly, this rulemaking simply makes a 
factual determination and establishes a SIP submission schedule, and 
does not directly regulate any entity. Therefore, this action will not 
have a significant impact on a substantial number of small entities 
within the meaning of the those terms for the RFA. As for the Unfunded 
Mandates Reform Act, the discussion below explains why the UMRA does 
not apply to this action.
    6. A commenter stated that Spokane should be classified 
``serious.'' Real change is needed. The basic issue is public health.
    Response: EPA agrees with the commenter that the data supports the 
reclassification of the area to ``serious.'' The CO NAAQS is health-
based, and the CAAA mandates attainment of that standard by specific 
dates. EPA's decision is based data showing that the standard was not 
met by December 31, 1995.

III. Today's Action

    EPA is today taking final action to find that the Spokane CO 
nonattainment area did not attain the CO NAAQS by December 31, 1995, 
the attainment date for moderate CO nonattainment areas identified in 
the Act. This finding is based upon air quality data showing 
exceedances of the CO NAAQS during 1994 and 1995, resulting in a 
violation of the NAAQS during 1995. As a result of this finding, the 
Spokane CO nonattainment area is reclassified by operation of law as a 
serious CO nonattainment area as of the effective date of this 
document. This reclassification establishes that the State has eighteen 
months from the date of this notice to submit SIP revisions, and that 
the State must implement the CO contingency measures in the approved 
SIP.

IV. Executive Order (EO) 12866

    Under E.O. 12866, 58 FR 51735 (October 4, 1993), EPA is required to 
determine whether regulatory actions are significant and therefore 
should be subject to OMB review, economic analysis, and the 
requirements of the Executive Order. The Executive Order defines a 
``significant regulatory action'' as one that is likely to result in a 
rule that may meet at least one of the four criteria identified in 
section 3(f), including, under paragraph (1), that the rule may ``have 
an annual effect on the economy of $100 million or more or adversely 
affect, in a material way, the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities''.
    The Agency has determined that the finding of failure to attain 
finalized today would result in none of the effects identified in 
section 3(f). Under section 186(b)(2) of the CAA, findings of failure 
to attain and reclassification of nonattainment areas are based upon 
air quality considerations and must occur by operation of law in light 
of certain air quality conditions. They do not, in and of themselves, 
impose any new requirements on any sectors of the economy. In addition, 
because the statutory requirements are clearly defined with respect to 
the differently classified areas, and because those requirements are 
automatically triggered by classifications that, in turn, are triggered 
by air quality values, findings of failure to attain and 
reclassification cannot be said to impose a materially adverse impact 
on State, local, or tribal governments or communities.

V. 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.
    As discussed above, a finding of failure to attain (and consequent 
reclassification by operation of law) of the nonattainment area under 
section 186(b)(2) of the CAA, and the establishment of a SIP submittal 
schedule for a reclassified area do not in-and-of-themselves create any 
new requirements on small entities. Instead,

[[Page 12012]]

this rulemaking simply makes a factual determination and establishes a 
schedule to require States to submit SIP revisions, and does not 
directly regulate any entities. Therefore, pursuant to 5 U.S.C. 605(b), 
EPA reaffirms its certification made in the proposal that today's 
action does not have a significant impact on a substantial number of 
small entities within the meaning of those terms for RFA purposes.

VI. Unfunded Mandates Act

    Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA''), 
Pub. L. 104-4, establishes requirements for Federal agencies to assess 
the effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, when EPA promulgates ``any general notice of proposed 
rulemaking that is likely to result in promulgation of any rule that 
includes any Federal mandate that may result in the expenditures by 
State, local or tribal governments, in the aggregate, or by the private 
sector, of $100 million or more'' in any 1 year. A ``Federal mandate'' 
is defined under section 101 of the UMRA as a provision that ``would 
impose an enforceable duty'' upon the private sector, or State, local 
or tribal governments, with certain exceptions not here relevant. Under 
section 203 of UMRA, EPA must develop a small government agency plan 
before EPA ``establish[es] any regulatory requirements that might 
significantly or uniquely affect small governments.'' Under section 204 
of the UMRA, EPA is required to develop a process to facilitate input 
by elected officers of State, local, and tribal governments for EPA's 
``regulatory proposals'' that contain significant Federal 
intergovernmental mandates. Under section 205 of the UMRA, before EPA 
promulgates ``any rule for which a written statement is required under 
[UMRA sec.] 202,'' EPA must identify and consider a reasonable number 
of regulatory alternatives and either adopt the least costly, most 
cost-effective or least burdensome alternative that achieves the 
objectives of the rule, or explain why a different alternative was 
selected.
    Generally, EPA has determined that the provisions of sections 202 
and 205 of UMRA do not apply to this decision. Under section 202 of 
UMRA, EPA is to prepare a written statement that is to contain 
assessments and estimates of the costs and benefits of a rule 
containing a Federal Mandate ``unless otherwise prohibited by law.'' 
Congress clarified that ``unless otherwise prohibited by law'' referred 
to whether an agency was prohibited from considering the information in 
the rulemaking process, not to whether an agency was prohibited from 
collecting the information. The Conference Report on UMRA states: 
``This section [202] does not require the preparation of any estimate 
or analysis if the agency is prohibited by law from considering the 
estimate or analysis in adopting the rule.'' 141 Cong. Rec. H3063 
(Daily ed. March 13, 1995). Because the Clean Air Act prohibits, when 
determining whether an area attained the NAAQS, from considering the 
types of estimates and assessments described in section 202, UMRA does 
not require EPA to prepare a written statement under section 202. 
Although the establishment of a SIP submission schedule may impose a 
Federal mandate, this mandate would not create costs of $100 million or 
more, and therefore, no analysis is required under section 202. The 
requirements in section 205 do not apply because those requirements are 
for rules ``for which a written statement is required under section 
202. * * *''
    With respect to the outreach described in UMRA section 204, EPA 
discussed with State officials EPA's proposed and final action in 
advance of the publication.
    Finally, section 203 of the UMRA does not apply to today's action 
because the regulatory requirements finalized today--the SIP submittal 
schedule--affect only the State of Washington, which is not a small 
government under UNRA.

VII. Submission to Congress and the General Accounting Office

    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 rule 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. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

VIII. 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 appropriate circuit by May 11, 1998. 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 in 40 CFR Part 81

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations.
Chuck Clarke,
Regional Administrator, Region 10.

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 Spokane Area to read as follows:


Sec. 81.348  Washington.

* * * * *

                                                               Washington--Carbon Monoxide                                                              
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Designation                                           Classification                    
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                            Date\1\                       Type                      Date\1\                       Type                  
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
                 *                  *                  *                    *                    *                  *                  *                
Spokane Area:                                                                                                                                           

[[Page 12013]]

                                                                                                                                                        
    Spokane County (part)                                                                                                                               
        Spokane urban area (as defined    ...........  Nonattainment............................      4-13-98  Serious.                                 
         by the Washington Department of                                                                                                                
         Transportation urban area maps).                                                                                                               
                                                                                                                                                        
                 *                  *                  *                    *                    *                  *                  *                
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This date is November 15, 1990, unless otherwise noted.                                                                                             

* * * * *
[FR Doc. 98-5978 Filed 3-11-98; 8:45 am]
BILLING CODE 6560-50-P