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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WA43-7116; FRL-5608-7]

Approval and Promulgation of Air Quality Implementation Plans;

Washington; Revision to the State Implementation Plan Vehicle

Inspection and Maintenance Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this action, EPA is approving the Inspection and

Maintenance (I/M) State Implementation Plan (SIP), for Washington

State. On August 21, 1995, Washington submitted SIP revision requests

to the EPA to satisfy the requirements of sections 182(b)(4) and

182(c)(3) of the Clean Air Act, (1990) and Federal I/M rule 40 CFR part

51, subpart S. These SIP revisions will require vehicle owners to

comply with the Washington I/M program in the two Washington ozone

nonattainment areas classified as ``marginal'' and in the three carbon

monoxide nonattainment areas classified as ``moderate''. This revision

applies to the Washington counties of Clark, King, Pierce, Snohomish,

and Spokane.

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

ADDRESSES: Copies of material submitted to EPA may be examined during

normal business hours at the following locations: EPA, Region 10,

Office of Air Quality, 1200 Sixth Avenue (OAQ-107), Seattle, Washington

98101, and the Washington State Department of Ecology, P.O. Box 47600,

Olympia, WA 98504-7600.

FOR FURTHER INFORMATION CONTACT: Stephanie Cooper, Office of Air

Quality, (OAQ-107), 1200 6th Avenue, Seattle, WA 98101, (206) 553-6917.

SUPPLEMENTARY INFORMATION:

I. Clean Air Act Requirements

The Clean Air Act, as amended in 1990 (CAA or Act), requires States

to make changes to improve existing I/M programs or implement new ones.

Section 182(a)(2)(B) required any ozone nonattainment area which has

been classified as ``marginal'' (pursuant to section 181(a) of the Act)

or worse with an existing I/M program that was part of a SIP, or any

area that was required by the 1977 Amendments to the Act to have an I/M

program, to immediately submit a SIP revision to bring the program up

to the level required in past EPA guidance or to what had been

committed to previously in the SIP, whichever was more stringent. All

carbon monoxide nonattainment areas were also subject to this

requirement to improve existing or previously required programs to this

level. In addition, any ozone nonattainment area classified as moderate

or worse must implement a basic or an enhanced I/M program depending

upon its classification, regardless of previous requirements.

Congress directed the EPA in section 182(a)(2)(B) to publish

updated guidance for State I/M programs, taking into consideration

findings of the Administrator's audits and investigations of these

programs. The States were to incorporate this guidance into the SIP for

all areas required by the Act to have an I/M program. Ozone

nonattainment areas classified as ``serious'' or worse with populations

of 200,000 or more, and CO nonattainment areas with design values above

12.7 ppm and populations of 200,000 or more, and metropolitan

statistical areas with populations of 100,000 or more in the northeast

ozone transport region, were required to meet EPA guidance for enhanced

I/M programs.

The EPA has designated two areas as ozone nonattainment in the

State of Washington. The Puget Sound ozone nonattainment area is

classified as marginal and contains King, Pierce, and Snohomish

counties. The Vancouver Air Quality Maintenance Area is classified as

marginal and contains Clark county. Additionally, three areas in

Washington state are designated as CO nonattainment areas. Both the

Spokane Carbon Monoxide Nonattainment area (Spokane County) and the

Puget Sound Carbon Monoxide

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Nonattainment area (King, Pierce, and portions of Snohomish Counties)

have design values greater than 12.7 ppm and are designated as

``moderate plus''. The Vancouver Air Quality Maintenance Area is a

``moderate'' carbon monoxide nonattainment area, with a design value

below 12.7 ppm. The central Puget Sound has an urbanized area

population of 1,793,612, and Spokane has an urbanized area population

of 266,709. Based on these nonattainment designations and populations,

a basic I/M program is required in the Vancouver and Puget Sound ozone

nonattainment area, while enhanced I/M programs are required in the

Puget Sound and Spokane carbon monoxide nonattainment areas.

By this action, the EPA is approving the submittal of the

Washington I/M SIP. The EPA has reviewed the State submittal against

the statutory requirements and for consistency with the EPA

regulations. A summary of the EPA's analysis is provided below. In

addition, a history and a summary to support approval of the State

submittal is contained in a TSD, dated May 10, 1996, which is available

from the Region 10 Office (address provided above).

II. I/M Regulation General SIP Submittal Requirements

The original I/M regulation was codified at 40 CFR part 51, Subpart

S, and required States to submit an I/M SIP revision which includes all

necessary legal authority and the items specified in 40 CFR 51.372

(a)(1) through (a)(8) by November 15, 1993. On September 18, 1995, the

EPA published a final regulation establishing the ``low enhanced'' I/M

requirements, pursuant to section 182 and 187 of the Act (40 CFR part

51). These low enhanced I/M requirements superseded the former enhanced

I/M requirements. The State has met the low enhanced I/M requirements

established by the September 18, 1995 rulemaking.

III. State Submittal

On August 21, 1995, the State of Washington submitted the I/M SIP

for its five carbon monoxide and ozone nonattainment areas. Public

hearings for the submittal were held in Vancouver, Bellevue, and

Spokane on June 6, 7, and 8, 1995, respectively.

The submittals provide for the continued implementation of I/M

programs in the Puget Sound, Spokane, and Vancouver areas. Inspection

and Maintenance programs have been running in the Puget Sound area

since 1982, in Spokane since 1985, and in Vancouver since 1993.

Washington's centralized, test only, biennial program meets the

requirements of EPA's low enhanced performance standard and other

requirements contained in the Federal I/M rule in the applicable

nonattainment counties. Testing will be overseen by the Washington

State Department of Ecology and its I/M contractor, Systems Control.

Other aspects of the Washington I/M program include: testing of 1968

and later light duty vehicles and trucks and heavy duty trucks, a test

fee to ensure the State has adequate resources to implement the

program, enforcement by registration denial, a repair effectiveness

program, contractual requirements for testing convenience, quality

assurance, data collection, reporting, test equipment and test

procedure specifications, public information and consumer protection,

and inspector training and certification. In addition, the low enhanced

I/M programs will include: a two-speed (2500 and idle) test or a loaded

idle test, and a program to evaluate on-road testing. An analysis of

how the Washington I/M program meets the EPA's I/M regulation was

provided in 61 FR 38086, published on July 23, 1996.

The criteria used to review the submitted SIP revision are based on

the requirements stated in Section 182 of the CAA and the most recent

Federal I/M regulations (September 18, 1995). EPA has reviewed the

Washington I/M SIP revision. The Washington regulations and

accompanying materials contained in the SIP represent an acceptable

approach to the I/M requirements and meet the criteria required for

approvability.

IV. Response to Comments

Comment: One commenter, which is an entity of the Federal

government, objected to an aspect of the I/M program regarding emission

inspections by fleet operators. Operators who chose to utilize the

fleet vehicle self-testing program must purchase certificate forms by

paying a fee of $12 per vehicle. The state regulation that establishes

vehicle testing requirements at WAC Sec. 173-422-160 waives the payment

of fees for state and local government fleets. The Federal entity

commented that the state requirements are impermissibly discriminatory

and an unconstitutional tax of the Federal government by the state. The

commenter also wrote that the $12 fee per vehicle certificate is

impermissible because the fee exceeds the state's administrative costs.

Response: The EPA does not agree that the state fee structure which

requires payment of a fee by Federal fleet operators impermissibly

discriminates against the Federal government or that the fee of $12 is

impermissibly high. The Ecology regulations at WAC 173-422-160

establish requirements for all fleet operators, including the

requirement for fleet operators to submit certificate forms of emission

self-testing for each vehicle, at a cost of $12 for each certificate.

The regulation specifically waives the payment for fleet forms only for

state and local government fleets.

The EPA interprets section 118 of the CAA requirement that Federal

agencies comply with air pollution requirements ``in the same manner

and to the same extent as any nongovernmental entity'' to mean that

Federal entities must comply with any air pollution rule established

under the Act to no less an extent than nongovernmental entities. In

this case, the state regulation applies to all fleet operators, both

governmental and nongovernmental, and waives the fee requirement only

for state and local governments. Therefore, the EPA views the state as

requiring payment of fees by Federal entities in the same manner as

nongovernmental entities. The EPA believes that Congress has consented

to the imposition of the state fees on Federal entities in a situation

such as this by enacting section 118 of the CAA. In addition, EPA notes

that this is consistent with the result in U.S. v. South Coast Air

Quality Management District, 748 F.Supp. 732 (C.D. Calif. 1990), where

the Court wrote that a state permit fee requirement applying to both

Federal and private entities that exempts local and state government

agencies is consistent with section 118 of the CAA.

Under section 118(a) of the CAA, a Federal entity is required to

comply with ``any requirement to pay a fee or charge imposed by a State

or local agency to defray the costs of its air pollution regulatory

program.'' The fee of $12 per vehicle has been established by Ecology

under the authority of RCW 70.120.170(4), which requires Ecology to set

fees at an amount ``required to (i) compensate the contractor or

inspection facility owner, and (ii) offset the general fund appropriate

to the department to cover the administrative costs of the motor

vehicle emission inspection program.'' Ecology has written that it

established fleet self-testing fees to recoup the costs associated with

implementing the emission testing program, including the cost of

equipment audits, travel expenses, training and continued education,

printing and storing of forms, and the certification of the self-

testing fleet inspection personnel. The commenter has not submitted any

data to indicate

[[Page 50237]]

that the fee of $12 per vehicle is unreasonable and EPA concludes that

on its face the fee does not appear to be unreasonable. EPA is

approving the fee structure because the State has established the fee

consistent with the CAA and state law. Under section 110(k)(3) of the

CAA, EPA must approve any SIP revision submitted by a state that meets

all of the applicable requirements of the Act.

Comment: One Federal government entity commented that Ecology is

improperly requiring annual inspection of its fleet.

Response: Legislation enacted by the State of Washington at RCW

70.120.170(5) requires ``all units of local government and agencies of

the state'' to test the emissions of their vehicles annually. In

discussions with the Ecology about this comment, Ecology has agreed

that Federal entities are not subject to this requirement, and need

only meet the requirement to test emissions biennially, as required by

RCW 70.120.170(1).

V. Today's Action

The EPA is approving the Washington I/M SIP as meeting the

requirements of the CAA and the Federal I/M rule. All required SIP

items have been adequately addressed as discussed in this Federal

Register action.

Pursuant to Section 553(d)(3) of the Administrative Procedures Act

(APA), this final notice is effective upon the date of publication in

the Federal Register. Section 553(d)(3) of the APA allows EPA to waive

the requirement that a rule be published 30 days before the effective

date if EPA determines there is ``good cause'' and publishes the

grounds for such a finding with the rule. Under section 553(d)(3), EPA

must balance the necessity for immediate federal enforceability of

these SIP revisions against principles of fundamental fairness which

require that all affected persons be afforded a reasonable time to

prepare for the effective date of a new rule. United States v.

Gavrilovic, 551 F 2d 1099, 1105 (8th Cir., 1977). The purpose of the

requirement for a rule to be published 30 days before the effective

date of the rule is to give all affected persons a reasonable time to

prepare for the effective date of a new rule.

EPA is making this rule effective upon September 25, 1996 to

provide necessary rulemaking for the forthcoming Puget Sound Ozone and

Carbon Monoxide Redesignations. The State relies on the existence of an

approved I/M program as part of the carbon monoxide maintenance

demonstration. The WDOE will discontinue implementation of the

oxygenated fuel program in the Seattle-Tacoma-Everett Consolidated

Metropolitan Statistical Area (CMSA) once approval of the carbon

monoxide maintenance plan becomes effective. As much time as possible

needs to be provided for State and local air authorities to notify fuel

distributors so that distribution plans can be modified in response to

these changes.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP shall be

considered separately in light of specific technical, economic and

environmental factors and in relation to relevant statutory and

regulatory requirements.

VI. Administrative Requirements

A. Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and subchapter I, Part D of the CAA

do not create any new requirements, but simply approve requirements

that the state is already imposing. Therefore, because the federal SIP-

approval does not impose any new requirements, I certify that it does

not have a significant impact on any small entities affected. Moreover,

due to the nature of the federal-state relationship under the CAA,

preparation of a regulatory flexibility analysis would constitute

federal inquiry into the economic reasonableness of state action. The

CAA forbids EPA to base its actions concerning SIPs on such grounds.

Union Electric Co. v. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42

U.S.C. 7410(a)(2).

Redesignation of an area to attainment under section 107(d)(3)(E)

of the CAA does not impose any new requirements on small entities.

Redesignation is an action that affects the status of a geographical

area and does not impose any regulatory requirements on sources. I

certify that the approval of the redesignation request will not affect

a substantial number of small entities.

C. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves pre-

existing requirements under State or local law, and imposes no new

Federal requirements. Accordingly, no additional costs to State, local,

or tribal governments, or to the private sector, result from this

action.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the

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appropriate circuit by November 25, 1996. Filing a petition for

reconsideration by the Administrator of this final rule does not affect

the finality of this rule for the purposes of judicial review nor does

it extend the time within which a petition for judicial review may be

filed and shall not postpone the effectiveness of such rule or action.

This action may not be challenged later in proceedings to enforce its

requirements. (See section 307(b)(2), 42 U.S.C. 7607(b)(2).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Nitrogen dioxide, Ozone,

Volatile organic compounds.

Note: Incorporation by reference of the Implementation Plan for

the State of Washington was approved by the Director of the Office

of Federal Register on July 1, 1982.

Dated: September 6, 1996.

Chuck Clarke,

Regional Administrator.

PART 52--[AMENDED]

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

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

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

Subpart WW--Washington

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

as follows:

Sec. 52.2470 Identification of plan.

* * * * *

(c) * * *

(61) SIP revisions received from WDOE on August 21, 1995, requiring

vehicle owners to comply with its I/M program in the two Washington

ozone nonattainment areas classified as ``marginal'' and in the three

carbon monoxide nonattainment areas classified as ``moderate''. This

revision applies to the Washington counties of Clark, King, Pierce,

Snohomish, and Spokane.

(i) Incorporation by reference.

(A) July 26, 1995 letter from Director of WDOE to the Regional

Administrator of EPA submitting revisions to WDOE's SIP consisting of

the July 1995 Washington State Implementation Plan for the Motor

Vehicle Inspection and Maintenance Program (including Appendices A

through F), adopted August 1, 1995, and a supplement letter and ``Tools

and Resources'' table dated May 10, 1996.

[FR Doc. 96-24523 Filed 9-24-96; 8:45 am]

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