[Federal Register Volume 77, Number 6 (Tuesday, January 10, 2012)]
[Rules and Regulations]
[Pages 1414-1417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-341]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2010-0917; FRL-9616-4]


Approval and Promulgation of State Implementation Plans: Alaska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve revisions to the Alaska 
State Implementation Plan (SIP) relating to the motor vehicle 
inspection and maintenance program (I/M) for control of carbon monoxide 
(CO) in Anchorage. The State of Alaska (the State) submitted a 
September 29, 2010, SIP modification that would discontinue the I/M 
program in Anchorage as an active control measure in the SIP and shift 
it to a contingency measure. EPA is approving the submittal because it 
satisfies the requirements of the Clean Air Act (CAA or the Act).

DATES: This action is effective on February 9, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R10-OAR-2010-0917. All documents in the docket 
are listed on the http://www.regulations.gov Web site. Although listed 
in the index, some information may not be publicly available, i.e., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through http://www.regulations.gov or 
in hard copy at EPA Region 10, Office of Air, Waste, and Toxics, AWT-
107, 1200 Sixth Avenue, Seattle, Washington 98101. EPA requests that 
you contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30, excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Claudia Vergnani Vaupel, (206) 553-
6121, or by email at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA. Information is organized 
as follows:

Table of Contents

I. What is the background for this final action?
II. What is our response to comments received on the notice of 
proposed rulemaking?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. What is the background for this final action?

    The I/M program is a CO control measure in the Anchorage CO 
maintenance plan that was Federally approved on June 23, 2004 (69 FR 
34935). The State of Alaska submitted a September 29, 2010, SIP 
modification discontinuing the I/M program in Anchorage as an active 
control measure in the SIP and shifting it to a contingency measure. 
EPA is approving the 2010 submittal because it satisfies the 
requirements of the CAA.
    In accordance with the CAA and EPA redesignation guidance, states 
may adjust control strategies in the maintenance plan as long as they 
can demonstrate that the revision will not interfere with attainment or 
maintenance of the National Ambient Air Quality Standards (NAAQS), or 
any other CAA requirements. See CAA sections 175A and 110(l). However, 
section 175A(d) of the CAA requires that contingency measures in the 
maintenance plan include all measures in the SIP for the area before 
that area was redesignated to attainment.
    The SIP revision submitted by Alaska included a technical analysis 
using EPA approved models and methods to demonstrate that the Anchorage 
area would continue to maintain the CO standard without the I/M program 
in place and that the revision would not interfere with attainment and 
maintenance of the other NAAQS. The submittal also documented that 
Anchorage will retain the legal authority necessary to implement the I/
M program as a contingency measure.
    On September 7, 2011, EPA proposed to approve the State's submittal 
as meeting the requirements of the Act (76 FR 55325). For a more 
detailed discussion of the background of this rulemaking, please see 
EPA's notice of proposed approval. In this final action, EPA is 
approving the SIP modifications to the Anchorage CO maintenance plan as 
originally proposed in EPA's notice of proposed rulemaking.

II. What is our response to comments received on the notice of proposed 
rulemaking?

    The public comment period for EPA's proposal to approve Alaska's 
request closed on October 7, 2011. EPA received

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128 comments. The following summarizes the issues raised in comments 
and provides EPA's responses. The majority of comments supported the 
proposed action to remove the I/M program as an active control measure 
and move it to the contingency measures portion of the SIP. In general, 
the comments opposed to the proposed action questioned the wisdom of 
discontinuing a program that has a beneficial impact on the community. 
Finally, additional comments suggested that EPA retain the I/M program 
as an active control measure in the SIP because of air quality benefits 
received by the program. As discussed in greater detail below, EPA 
believes that many of these concerns fall outside of the scope of this 
action.
    Comment: A number of commenters attributed the improvement in 
Anchorage's air quality to the I/M program and expressed concern that 
air quality in Anchorage would deteriorate once the I/M program is 
discontinued. Some of these commenters expressed concerns such as 
``smoke belcher vehicles'' becoming more common and deteriorating air 
quality. Other commenters suggested requiring I/M for older vehicles. 
Two commenters provided information on I/M test failures in Anchorage. 
One commenter emphasized the importance of maintaining oxygen sensors. 
This commenter expressed concern that ``the motorist may simply ignore 
the light [malfunction indicator lamp/check engine light].'' One 
commenter was concerned that the State's analysis did not include 
``removal and modifications or just simple lack of maintenance'' and 
that it did not ``reflect the rapid growth of [A]nchorage.'' These 
comments all expressed concern regarding diminished air quality in the 
absence of the I/M program.
    Response: In reviewing SIP submissions, EPA's role is to approve 
state choices, provided that they meet minimum criteria set by the CAA 
or any applicable EPA regulations. The State's CAA section 110(l) 
demonstration indicates that motor vehicle emissions are projected to 
decline from current levels through 2023, even with the discontinuation 
of the I/M program for all vehicles. In its submittal, the State 
explains that the analysis was conducted ``[u]sing the best available 
data and assumptions regarding growth in population, vehicle miles 
traveled and trip starts'' and that the modeling analysis ``assumes 
that the CO reductions provided by the I/M Program will be zero in 2011 
and beyond.'' In its 2007-2023 emission projections, the State explains 
that ``[a] great deal of effort was devoted to developing a credible 
highway motor vehicle emissions inventory that reflected real world 
conditions and driver behavior in Anchorage.'' The State's projections 
demonstrate that Anchorage will maintain the CO standard through 2023. 
The primary driver for the decline in CO emissions is the replacement 
over time of older vehicles with newer, cleaner running vehicles. In 
addition, the SIP includes a commitment to analyze air quality data to 
verify continued attainment of the CO NAAQS (See 69 FR 25872). 
Anchorage will retain the legal authority necessary to implement the I/
M program if needed as a contingency measure under the CO SIP or for 
reasons unrelated to the requirements of the Federal CAA.
    EPA notes that air quality standards are set to protect public 
health with an adequate margin of safety and EPA has found that 
approving the State's plan to remove the I/M program as an active 
control measure in the Anchorage CO maintenance plan will not interfere 
with attainment or maintenance of the NAAQS. EPA believes that the 
applicable criteria for approving discontinuation of the I/M program in 
Anchorage have been met and therefore the revision should be approved.
    Comment: A number of comments, both opposing and supporting the 
proposed action, identified benefits of the I/M program beyond the 
control of CO and suggested alternatives to the I/M program. Some 
commenters were concerned about vehicle safety and vehicle 
modifications. One commenter explained seeing vehicles with ``panels 
and hoods held together with duct tape, zipties, rivets, ratchet 
straps, and baleen wire.'' Another commenter was concerned about noise 
pollution from ``reduced muffler quality.'' Some commenters suggested 
replacing the I/M program with a safety inspection program. One 
commenter was concerned about the economic impacts of discontinuing the 
I/M program as the industry may need to ``lay off some of its work 
force'' which will have a ``ripple effect'' throughout the Anchorage 
economy. One commenter who supported the proposal suggested that ``in 
the spirit of clean air * * * [a] small increase in car registration 
fees * * * go toward enhancing the city's public transportation.''
    Response: EPA recognizes that there may be ancillary benefits in a 
community that coincide with I/M and transit programs. As noted above, 
states have primary responsibility for deciding how to attain and 
maintain the NAAQS. Under the CAA, the sole issue for EPA's 
consideration in this rulemaking is whether removing the I/M program as 
an active control measure for CO in the SIP would be consistent with 
CAA provisions, including whether discontinuation is expected to 
interfere with attainment and maintenance of air quality standards. EPA 
is approving removal of the I/M program as an active control measure in 
the CO SIP because removal is consistent with the requirements of the 
CAA, including attainment and maintenance of the NAAQS. Many of the 
alternatives suggested by commenters may be considered and implemented 
at the local level without EPA's review or approval.
    Comment: Two commenters suggested that discontinuation of the I/M 
program should be immediate and not delayed by 6 months.
    Response: The commenters did not provide information identifying 
the 6-month period they reference. EPA has not imposed a 6-month 
waiting period on this SIP revision. EPA's approval of the revision to 
remove the I/M program as an active control measure in the SIP will be 
effective 30 days after the final rule is published. EPA believes the 
commenters may be referring to local requirements, in which case the 
issue is beyond the scope of this action. EPA is acting on the State's 
submission, which is limited in scope to revisions to the existing SIP 
for CO. Although Federal approval of the SIP modification is effective 
within 30 days, local regulators may choose to continue the I/M program 
after this date for reasons unrelated to Federal CAA requirements.
    Comment: One commenter was concerned that the State used the 
MOBILE6.2 emissions model in its maintenance demonstration rather than 
using EPA's most recent model, MOVES2010. The commenter ``calls on the 
EPA to require the State of Alaska to re-submit the proposed rule 
change relying on MOVES2010 to model emissions in Anchorage, Alaska.'' 
The commenter expressed concern that after March 2, 2012 (which is the 
end of the MOVES2010 grace period for transportation conformity 
analyses), future emissions modeling with MOVES2010 would cause 
Anchorage to be ``out-of-compliance'' or ``in non-attainment'' for the 
CO standard and that the I/M program could not be implemented quickly 
enough at that time to qualify as a contingency measure.
    Response: On March 2, 2010, EPA released the MOVES2010 emission 
model (see 75 FR 9411, March 2, 2010) and explained that ``[a]lthough 
MOVES2010 should be used in SIP development as expeditiously as

[[Page 1416]]

possible, EPA also recognizes the time and effort that States have 
already undertaken in SIP development using MOBILE6.2. SIPs that EPA 
has already approved are not required to be revised solely based on 
existence of the new model. States that have already submitted SIPs or 
will submit SIPs shortly after EPA's approval of MOVES2010 are not 
required to revise these SIPs simply because a new motor vehicle 
emissions model is now available.'' \1\ Alaska's MOBILE6 modeling that 
was used in support of its maintenance demonstration and in developing 
the motor vehicle emissions budget was completed prior to March 2, 
2010. Consistent with EPA's guidance on the topic, EPA finds that 
Alaska's reliance on that modeling in its SIP submission was 
appropriate under these circumstances. EPA concludes that this does not 
constitute a basis for disapproval of the State's SIP proposal.
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    \1\ EPA believes that this is supported by existing EPA policies 
and case law [Sierra Club v. EPA, 356 F.3d. 296, 307-08 (DC Cir. 
2004)].'' (Policy Guidance on the Use of MOVES2010 for State 
Implementation Plan Development, Transportation Conformity, and 
Other Purposes, December 2009, EPA-420-B-09-046)
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    Regarding the commenter's concern that Anchorage may be ``out-of-
compliance'' or ``in non-attainment'' on March 2, 2012, EPA reiterates 
that SIPs that have already been approved do not need to be revised 
solely as a result of the availability of the new model. Thus, EPA will 
not be reevaluating its approval of this SIP revision after March 2, 
2012.\2\ Furthermore, to the extent the commenter is suggesting that 
Anchorage will be out of compliance with the NAAQS on March 2, 2012, 
and subsequently designated nonattainment, EPA notes that compliance 
with the CO standard in Anchorage will continue to be based on air 
quality monitoring values. The end of the MOVES2010 grace period on 
March 2, 2012, does not relate to the attainment status of the area.
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    \2\ EPA notes that the State has subsequently submitted on 
September 20, 2011, another CO SIP revision for Anchorage that 
includes a re-analysis of the maintenance demonstration and motor 
vehicle emission budget with the MOVES model. For EPA's review of 
the whether the motor vehicle emissions budget in the SIP is 
adequate for conformity purposes, see http://www.epa.gov/otaq/stateresources/transconf/currsips.htm#anch-ala. EPA's preliminary 
review of this submission indicates that Alaska's MOVES modeling 
does not contain information indicating that the area may not be 
able to maintain the CO NAAQS throughout the maintenance period. EPA 
will complete its review of this latest SIP submittal and commence 
notice and comment rulemaking on that submittal in the near future.
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    The commenter also expressed concern that the I/M program does not 
qualify as a contingency measure because of the length of time it would 
take to implement the program after it has been discontinued. EPA notes 
that the contingency plan in the Anchorage CO SIP includes six 
contingency measures available to the State with a schedule indicating 
the time necessary to implement each contingency measure. The 
implementation times range from 6 to 24 months and the State projected 
it would take 12 to 24 months to reinstate the I/M program if that 
measure were selected. The State's contingency plan explains that, 
``[i]n the event monitoring data indicate that a violation of the 
ambient CO standard has occurred, Anchorage would examine the data to 
assess the spatial extent (i.e., hot spot versus region), severity and 
time period of the episode as well as trends over time. Based on this 
information, Anchorage, in consultation with ADEC [Alaska Department of 
Environmental Conservation], would determine which measure or measures 
in Table III.B.7-1 to implement.'' CAA section 175A(d) of the Act 
requires that a maintenance plan include such contingency provisions, 
as EPA deems necessary, to promptly correct any violation of the 
standard which occurs after the redesignation of the area. Thus, 
Congress gave EPA discretion to evaluate and determine the contingency 
measures EPA ``deems necessary.'' EPA has long exercised this 
discretion in its rulemakings on CAA section 175A contingency measures 
in maintenance plans, allowing as contingency measures commitments to 
adopt and implement in lieu of fully adopted contingency measures, and 
finding that implementation within 18-24 months of a violation complies 
with the requirements of section 175A. EPA has properly determined here 
that the State's contingency measures and schedules for implementation 
satisfy the CAA's contingency plan requirements.
    Comment: One commenter was concerned about funding for air quality 
monitoring. The commenter explained that air quality monitoring in the 
Municipality of Anchorage is funded by the I/M program and an alternate 
source of funding has not been identified.
    Response: EPA acknowledges that a portion of Anchorage's air 
quality monitoring program has historically been funded by revenue 
generated by the I/M program. However, Anchorage has recently passed a 
budget that provides funding to support continuation of its air quality 
monitoring program. Accordingly, EPA concludes that termination of the 
I/M program as an active SIP control measure will not prevent Alaska 
from having adequate resources to implement its SIP.

III. What action is EPA taking?

    EPA is approving revisions to the Alaska SIP that will remove the 
I/M program as an active control measure for CO in the SIP and move it 
to the contingency measures portion of the SIP. For the reasons 
provided above and in our September 7, 2010, proposed rule, we are 
approving Alaska's SIP revision that removes the I/M program as an 
active control measure for CO in Anchorage and moves it to the 
contingency measures portion of the SIP as originally proposed.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because

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application of those requirements would be inconsistent with the Clean 
Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the 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 March 12, 2012. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Reporting and 
recordkeeping requirements.

    Dated: December 28, 2011.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart C--Alaska

0
2. Section 52.73 is amended by adding paragraph (a)(1)(ii) to read as 
follows:


Sec.  52.73  Approval of plan.

    (a) * * *
    (1) * * *
    (ii) EPA approves as a revision to the Alaska State Implementation 
Plan, the Anchorage Carbon Monoxide Maintenance Plan (Volume II 
Sections II, III.A and III.B of the State Air Quality Control Plan 
adopted August 20, 2010, effective October 29, 2010, and Volume III of 
the Appendices adopted August 20, 2010, effective October 29, 2010) 
submitted by the Alaska Department of Environmental Conservation on 
September 29, 2010
* * * * *
[FR Doc. 2012-341 Filed 1-9-12; 8:45 am]
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