[Federal Register Volume 65, Number 72 (Thursday, April 13, 2000)]
[Rules and Regulations]
[Pages 19836-19838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-7627]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-6566-9]


Finding of Failure To Submit a Required State Implementation Plan 
for Carbon Monoxide; Spokane, WA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Finding of failure to submit.

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SUMMARY: EPA is taking final action in making a finding, under the 
Clean Air Act (CAA or Act), that Washington failed to make a carbon 
monoxide (CO) nonattainment area State Implementation Plan (SIP) 
submittal required for Spokane under the Act. Under certain provisions 
of the Act, states are required to submit SIPs providing for, among 
other things, reasonable further progress and attainment of the CO 
National Ambient Air Quality Standards (NAAQS) in areas classified as 
serious. The deadline for submittal of this plan for Spokane was 
October 13, 1999. This action triggers the 18-month time clock for 
mandatory application of sanctions and 2-year time clock for a Federal 
Implementation Plan (FIP) under the Act. This action is consistent with 
the CAA mechanism for assuring SIP submissions.

EFFECTIVE DATE: This action is effective as of April 13, 2000.

ADDRESSES: Written comments should be addressed to: Ms. Debra Suzuki, 
Office of Air Quality (OAQ-107), EPA, 1200 Sixth Avenue, Seattle, 
Washington 98101.

FOR FURTHER INFORMATION CONTACT: Christi Lee, Office of Air Quality 
(OAQ), U.S.EPA, Region 10, Washington Operations Office, 300 Desmond 
Drive SE, Suite 102, Lacey, Washington, 98503, Telephone (360) 753-
9079.

SUPPLEMENTARY INFORMATION:

[[Page 19837]]

I. Background

    The CAA Amendments of 1990 were enacted on November 15, 1990. Under 
Section 107(d)(1)(c) of the amended CAA, each CO area designated 
nonattainment prior to enactment of the 1990 Amendments, such as the 
Spokane area, was designated nonattainment by operation of law upon 
enactment of the 1990 Amendments. Under section 186 (a) of the Act, 
each CO area designated nonattainment under section 107 (d) was also 
classified by operations 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 56846 (November 6, 1991).
    (1) The CO nonattainment area is the ``Spokane urban area (as 
defined by the Washington Department of Transportation urban area 
maps).'' 40 CFR 81.348.
    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. An attainment plan 
meeting most of the requirements of the Act was submitted by Ecology to 
EPA as a revision to the State Implementation Plan (SIP) on January 22, 
1993. Ecology submitted an additional SIP revision to EPA on April 30, 
1996. EPA approved a portion of the attainment plan submitted (the 1990 
base year emission inventory, the vehicle miles traveled (VMT) tracking 
and forecasting provision, the VMT and Oxygenated fuel contingency 
measures and the deletion of two unimplemented transportation control 
measures). EPA deferred action on that part of the SIP revision which 
consisted of the Spokane CO attainment demonstration and the emissions 
budget provision. See 62 FR 49442 (September 22, 1997).
    (2) 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 above 
12.7 ppm. 40 CFR 81.348.
    Effective April 13, 1998, (63 FR 12007, March 12, 1998) the Spokane 
area was reclassified as a serious nonattainment area for not meeting 
the moderate area attainment date of December 31, 1995. EPA found that 
the standard was exceeded four times at one monitoring site in 1995. In 
1996 the CO standard was exceeded once, at two different monitoring 
sites. Both 1997 and 1998 had no exceedance.
    The State had 18 months or until October 13, 1999, to submit a new 
State Implementation Plan (SIP) demonstrating attainment of the CO 
NAAQS as expeditiously as practicable but no later than December 31, 
2000, the CAA attainment date for serious areas. Notwithstanding 
significant efforts by the Washington State Department of Ecology, the 
Spokane County Air Pollution Control Authority and the Spokane Regional 
Transportation Authority to complete their CO SIP, the state has failed 
to meet the October 13, 1999 deadline for the required SIP submission. 
EPA is therefore compelled to find that the State of Washington has 
failed to make the required SIP submission for Spokane. The CAA 
established specific consequences if EPA finds that a State has failed 
to meet certain requirements of the CAA. Of particular relevance here 
is CAA section 179(a)(1), the mandatory sanctions provisions. Sections 
179 (a) sets forth four findings that form the basis for applications 
of a sanction. The first finding, that a State has failed to submit a 
plan required under the CAA, is the finding relevant to this 
rulemaking.
    If Washington has not made the required complete submittal by 
October 13, 2001, pursuant to CAA section 179 (a) and 40 CFR 52.31, the 
offset sanction identified in CAA section 179 (b) will be applied in 
the affected area. If the State has still not made a complete 
submission by April 13, 2002, then the highway funding sanction will 
apply in the affected area, in accordance with 40 CFR 52.31. In 
addition, CAA section 110 (c) provides that EPA must promulgate a 
Federal Implementation Plan (FIP).
    (3) In a 1994 rulemaking, EPA established the Agency's selection of 
the sequence of these two sanctions: the offset sanction under section 
179 (b) (2) shall apply at 18 months, followed 6 months later by the 
highway sanction under section 179 (b) (1) of the Act. EPA does not 
choose to deviate from this presumptive sequence in this instance. For 
more details on the timing and implementation of the sanctions, see 59 
FR 39832 (August 4, 1994), promulgating 40 CFR 52.31, ``Selection of 
sequence of mandatory sanctions for findings made pursuant to section 
179 of the Clean Air Act.''
    The sanctions will not take effect if, before October 13, 2001, EPA 
finds that the State has made a complete submittal of a plan addressing 
the serious area CO requirements for Spokane. In addition, EPA will not 
promulgate a FIP if the State makes the required SIP submittal and EPA 
takes final action to approve the submittal before April 13, 2002, 
(section 110 (c) (1) of the Act). EPA encourages the responsible 
parties in Washington State to continue working together on the CO Plan 
which can eliminate the need for potential sanctions and FIP.

II. Final Action

A. Finding of Failure To Submit

    Today, EPA is making a finding of failure to submit for the Spokane 
CO nonattainment area, due to failure of the State to submit a SIP 
revision addressing the serious area CO requirements of the CAA.

B. Effective Date Under the Administrative Procedures Act

    EPA has issued this action as a rulemaking because the Agency has 
treated this type of action as rulemaking in the past. However, EPA 
believes that it would have the authority to issue this action in an 
informal adjudication, and is considering which administrative 
process'rulemaking or informal adjudication'is appropriate for future 
actions of this kind. Because EPA is issuing this action as a 
rulemaking, the Administrative Procedures Act (APA) applies. Today's 
action will be effective on April 13, 2000. Under the APA, 5 U.S.C. 553 
(d) (3), agency rulemaking may take effect before 30 days after the 
date of publication in the Federal Register if an agency has good cause 
to mandate an earlier effective date. Today's action concerns a SIP 
submission that is already overdue and the State is aware of applicable 
provisions of the CAA relating to overdue SIPs. In addition, today's 
action simply starts a ``clock'' that will not result in sanctions for 
18 months, and that the State may ``turn off'' through the submission 
of a complete SIP submittal. These reasons support an effective date 
prior to 30 days after the date of publication.

C. Notice-and-Comment Under the Administrative Procedures Act

    This document is a final agency action, but is not subject to the 
notice-and-comment requirements of the APA, 5 U.S.C. 533(b). EPA 
believes that because of the limited time provided to make findings of 
failure to submit regarding SIP submissions, Congress did not intend 
such findings to be subject to notice-and-comment rulemaking. However, 
to the extent such findings are subject to notice-and-comment 
rulemaking, EPA invokes the good cause exception pursuant to the APA, 5 
U.S.C.

[[Page 19838]]

553(d)(3). Notice and comment are unnecessary because no EPA judgment 
is involved in making a nonsubstantive finding of failure to submit 
SIPs required by the CAA. Furthermore, providing notice and comment 
would be impracticable because of the limited time provided under the 
statute for making such determinations. Finally, notice and comment 
would be contrary to the public interest because it would divert Agency 
resources from the critical substantive review of submitted SIPs. See 
58 FR 51270, 51272, note 17 (October 1, 1993); 59 FR 39832, 39853 
(August 4, 1994).

III. Administrative Requirements

    As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this notice, EPA has taken the necessary 
steps to eliminate drafting errors and ambiguity, minimize potential 
litigation, and provide a clear legal standard for affected conduct. 
EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 
1988) by examining the takings implications of the action in accordance 
with the ``Attorney General's Supplemental Guidelines for the 
Evaluation of Risk and Avoidance of Unanticipated Takings' issued under 
the executive order. This action does not impose an information 
collection burden under the provisions of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.). The Office of Management and Budget 
(OMB) has exempted this regulatory action from Executive Order 12866, 
entitled ``Regulatory Planning and Review.''
    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. However, section 808 provides that any rule for which 
the issuing agency for good cause finds (and incorporates the finding 
and a brief statement of reasons therefore in the rule) that notice and 
public procedure thereon are impracticable, unnecessary or contrary to 
the public interest, shall take effect at such time as the agency 
promulgating the rule determines. 5 U.S.C. 808(2). As stated 
previously, EPA has made such a good cause finding, including the 
reasons therefore, and established an effective date of April 13, 2000. 
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. 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). This rule will be 
effective April 13, 2000.
    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 June 12, 2000. 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 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations.

    Dated: March 20, 2000.
Jane Moore,
Acting Regional Administrator, Region X.
[FR Doc. 00-7627 Filed 4-12-00; 8:45 am]
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