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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[WA53-7126 FRL-5637-3]

Approval and Promulgation of Maintenance Plan for Air Quality

Planning Purposes for the State of Washington: Carbon Monoxide

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is redesignating the

Vancouver nonattainment area to attainment for the carbon monoxide (CO)

air quality standard and approving a maintenance plan that will insure

that the area remains in attainment. Under the Clean Air Act (CAA) as

amended in 1990, designations can be revised if sufficient data is

available to warrant such revisions. In this action, EPA is approving

the Washington Department of Ecology's request because it meets the

redesignation requirements set forth in the CAA. In addition, EPA is

approving a related State Implementation Plan (SIP) revision, the 1990

base year emission inventory for CO emissions, which includes emissions

data for sources of CO in the Vancouver, Washington CO nonattainment

area.

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

ADDRESSES: Copies of the State's redesignation request and other

information supporting this action are available during normal business

hours at the following locations: EPA, Alaska-Washington Unit (OAQ-

107), 1200 Sixth Avenue, Seattle, Washington, 98101, and the Washington

State Department of Ecology, Air Quality Program, P.O. Box 47600,

Olympia, Washington, 98504-7600.

FOR FURTHER INFORMATION CONTACT: William M. Hedgebeth, EPA Region 10,

Office of Air Quality, at (206) 553-7369.

SUPPLEMENTARY INFORMATION:

I. Background

In a March 15, 1991, letter to the EPA Region 10 Administrator, the

Governor of Washington recommended that the Vancouver portion of the

Portland-Vancouver Air Quality Maintenance Area be designated as

nonattainment for carbon monoxide (CO) as required by section

107(d)(1)(A) of the 1990 Clean Air Act Amendments (CAAA) (Public Law

101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q). The area

was designated nonattainment and classified as ``moderate,'' with a

design value less than or equal to 12.7 ppm under the provisions

outlined in sections 186 and 187 of the CAA. (See 56 FR 56694 (Nov. 6,

1991), codified at 40 CFR Sec. 81.348.) On September 29, 1995, EPA

approved the separation of the Portland-Vancouver CO nonattainment area

into two distinct nonattainment areas, effective November 28, 1995.

Because the Vancouver area had a design value of 10 ppm (based on 1988-

1989 data), the area was considered moderate. The CAA established an

attainment date of December 31, 1995, for all moderate CO areas. The

Vancouver area has ambient monitoring data showing attainment of the CO

National Ambient Air Quality Standard (NAAQS) since 1992.

On March 19, 1996, the Washington State Department of Ecology

(Washington) submitted a CO redesignation request and a request for

approval of a CO maintenance plan for the Vancouver area. On July 29,

1996, EPA proposed to approve Washington's requested redesignation and

maintenance plan. Washington has met all of the CAA requirements for

redesignation pursuant to section 107(d)(3)(E). EPA has approved all

SIP requirements for the Vancouver area that were due under the 1990

CAA.

Washington provided monitoring, modeling and emissions data to

support its redesignation request. The 1992 CO attainment emissions

inventory totals in tons per day are 76.43, 15.14, 164.3, and 67.84,

respectively, for the area, non-road, mobile, and point sources. The

emission budget established through the year 2006 is as follows:

Vancouver CO Emission Budget

[Pounds per winter day]

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1992 1995 1997 2001 2003 2006

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Other sources..................... 318,823 318,259 327,317 344,693 350,365 359,089

Mobile budget..................... 328,606 300,000 300,000 270,000 270,000 260,000

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Total....................... 647,429 618,259 627,317 614,693 620,365 619,089

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Washington relied on the existence of an approved Inspection and

Maintenance (I/M) program as part of the maintenance demonstration. EPA

approved the I/M program on September 25, 1996. Washington will

discontinue implementation of the oxygenated fuel program in the

Vancouver Consolidated Metropolitan Statistical Area (CMSA) once the CO

maintenance plan is approved.

Washington will retain the oxygenated fuels program as a

contingency measure as required under section 175A(d) of the CAA. The

program will be reimplemented the next full winter season following the

date of a quality assured violation of the CO National Ambient Air

Quality Standards (NAAQS).

II. Public Comment/EPA Response

During the public comment period on EPA's proposed finding, the

Agency received a number of comments from one commenter. No other

comments were received. A discussion of those comments follows.

1. The commenter asserted that the Maintenance Demonstration

developed by the Southwest Air Pollution Control Authority (SWAPCA) was

a direct result

[[Page 54561]]

of oxygenated fuels, that without oxygenated fuels there would have

been two violations in 1994 using SWAPCA's own modeling, and that by

taking away oxygenated fuels, Vancouver is taking away the one

enforceable control measure that assured maintenance.

Response: Under Title I of the CAA, Congress established a system

of state and federal cooperativeness. EPA is required to establish the

NAAQS, i.e., the level at which air quality is determined to be

protective of human health. However, the states take the primary lead

in determining the measures necessary to attain and maintain the NAAQS.

These measures are incorporated into the SIP. The CAA requires EPA to

approve a SIP submission that meets the requirements of the CAA. If the

state fulfills its obligations in developing a SIP that meets the

requirements of the CAA, EPA has no authority to supplement or revise

that plan with a federal implementation plan.

Once a state has attained the NAAQS for a particular pollutant,

such as CO, and the state can demonstrate that it has met the other

requirements specified in section 107(d)(3)(E) of the CAA, including

the requirement for a maintenance plan, the state can request

redesignation to attainment for the area. The maintenance plan, which

is submitted as a revision to the state's SIP, must demonstrate

maintenance of the NAAQS for ten years following redesignation. The

maintenance plan need not be based on continued implementation of all

the measures in the SIP prior to redesignation, but must provide that

if a violation of the standard occurs, ``the State will implement all

measures * * * which were contained in the [SIP] for the area before

redesignation as an attainment area.'' CAA section 175(d).

Washington submitted validated data that shows that the NAAQS for

CO has been met. There has been no violation of this standard since

1991. Other SIP requirements have been met and the Vancouver area meets

the statutory requirements for redesignation to attainment. The

maintenance plan includes oxygenated fuel as an enforceable contingency

measure in the event of a violation of the NAAQS. EPA is satisfied that

Washington and SWAPCA have documented that the NAAQS can be met in the

ten-year period covered by the maintenance plan without oxygenated fuel

and that in the event the standard is violated, adequate contingency

control measures are in place to address the violation.

2. The commenter asserted that ``[u]sing SWAPCA's emission

inventory, projected attainment for ten years is not possible without

oxyfuels. In 1994, there was an exceedance * * * associated with an

emission inventory of 611.525 [sic] lbs/day. Vancouver will not be

permanently below this inventory until sometime in 1999 without oxy

fuels.''

Response: The commenter is correct that there was an exceedance of

the CO standard in 1994, for which year SWAPCA identified total CO

emissions of 611,525 pounds per year in the 1992 Emissions Inventory.

However, there was no violation of the CO NAAQS during 1994, nor were

there any exceedances or violations of the CO NAAQS during either 1992

or 1993, both of which years had higher total CO emissions (647,428 and

642,193 pounds per year, respectively) than 1994. EPA is satisfied that

the ten-year maintenance plan adequately projects maintenance without

oxygenated fuel and that, in the event exceedances or violations occur,

adequate, enforceable control measures exist to address those

occurrences.

3. The commenter asserted that ``SWAPCA violated both the letter

and the spirit of the public involvement process. a.) No oxygenate

representative was asked to be on the advisory committee. The TAC

however did have two members of the petroleum industry. This led to a

one sided presentation of the issues and a general lack of facts to the

entire committee. b.) Due to the substantive change in nature from

eliminating oxy fuels in 1996-1997 as opposed to what was originally in

the document to be 1997-97 SWAPCA needed to extend their public hearing

giving an additional 30 day public notice. They did not. This is a

direct violation of the public hearing law. WADOE understood this and

extended their hearing on the subject but SWAPCA did not.''

Response: EPA's requirement regarding the public hearing process

that states must follow is stated in section 110(l) of the CAA. In

summary, EPA requires that each revision of a SIP be adopted by the

state after ``reasonable notice and public hearing'' of the proposed

change(s). The criteria EPA uses to determine whether the ``reasonable

notice and public hearing'' requirement has been met are identified at

40 C.F.R. Part 51, Appendix V. As indicated in the July 29, 1996,

Notice of Proposed Rulemaking, Washington submitted evidence that two

public hearings were held in Vancouver: one on December 19, 1995, by

the Southwest Air Pollution Control Authority (SWAPCA) and the other on

January 30, 1996, by Washington. In addition, Washington provided

documentation that adequate notice of both public hearings had been

provided. EPA is satisfied that the public participation process

employed by PSAPCA meets this requirement. Any additional public

procedures are at the State's discretion. EPA also notes that the

commenter had the opportunity to provide comments during Washington's

public comment period and the record shows that he provided such

comment.

4. The commenter wrote: ``The board was given misleading guidance

by SWAPCA staff on key issue relating the SIP and CO maintenance plan

adoption. Staff suggested to the Board that the Board could apply for

re designation with the use of oxy fuels. That the use of oxy fuels

would preclude being redesignated. This is absolutely not true and the

board needs to reconsider given the true facts.''

Response: EPA interprets this comment as asserting that SWAPCA

relied on incorrect advice that the oxygenated fuel program could not

be continued if it were no longer needed to maintain the NAAQS.

Although section 211(m) of the CAA prohibits the federal government

from requiring oxygenated gasoline if it is not needed for maintenance

of the CO NAAQS, EPA believes that this section does not prevent a

State from imposing such a program under its own authority. The record

clearly shows that SWAPCA and Washington decided to remove oxygenated

gasoline because they believe that it is not needed for maintenance of

the NAAQS. This is documented in the responses to public comment by

both SWAPCA and Washington, and in the Maintenance Plan. It is also

important to point out that oxygenated gasoline is being retained as a

contingency measure in the maintenance plan, as required by the CAA.

EPA believes that, under the CAA, it is obligated to approve the

maintenance plan and redesignation request submitted by a state if that

request meets all of the requirements of the CAA. Under the CAA, the

state takes the lead in developing a plan to attain and maintain the

NAAQS. If the maintenance plan meets the requirements of the CAA, EPA

must approve the plan under section 110(k)(3) of the CAA. Since

Washington has submitted a maintenance plan that meets the requirements

of section 175 of the CAA, EPA must approve the plan. Furthermore,

Washington has demonstrated that the Vancouver area has met the

redesignation criteria in section 107(d)(3)(E) of the CAA and,

therefore, should be redesignated to attainment for CO. Since

Washington

[[Page 54562]]

submitted a maintenance plan and redesignation request that comply with

the CAA, and there is no issue as to whether Washington has the

authority to implement the measures included in the submission, EPA has

no authority to examine Washington's reasoning for selection of the

measures in the maintenance plan.

None of the comments provided information that contradicts EPA's

finding that the Vancouver area has met the criteria for redesignation

to attainment. Delay in redesignation of the Vancouver area to

attainment is unwarranted and would deny redesignation to an area that

meets Clean Air Act requirements for such redesignation. Therefore, EPA

is redesignating the Vancouver area to attainment of the CO standard.

III. Rulemaking Action

EPA is approving the Vancouver CO Maintenance Plan and Washington's

request to redesignate the Vancouver area to attainment of the CO

standard because Washington's submittal meets the requirements of

section 107(d)(3)(E) of the CAA. This approval will revise the SIP for

the Vancouver area that will assure that the CO standard continues to

be maintained through the year 2006. Because EPA is approving the

maintenance plan and because the area meets CAA requirements for

redesignation to attainment, the Vancouver area will be designated as

attaining the CO NAAQS. EPA is also approving Washington's 1990 base

year emission inventory for CO emissions in the Vancouver CO

nonattainment area.

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

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

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

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

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

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

must balance the necessity for immediate federal enforceability of

these SIP revisions against principles of fundamental fairness which

require that all affected persons be afforded a reasonable time to

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

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

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

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

prepare for the effective date of a new rule.

EPA is making this rule effective upon October 21, 1996 to provide

as much time as possible for State and local air authorities to notify

fuel distributors that distribution plans can be modified in response

to these changes. In addition, this approval imposes no new

requirements on sources since the measures in the maintenance plan were

previously approved as part of the SIP and the maintenance plan

contains no new requirement for the area.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

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

considered separately in light of specific technical, economic and

environmental factors and in relation to relevant statutory and

regulatory requirements.

IV. Administrative Requirements

A. Executive Order 12866

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

by the Regional Administrator under the procedures published in the

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

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

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

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

B. Regulatory Flexibility Act

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

must prepare a regulatory flexibility analysis assessing the impact of

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

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

significant impact on a substantial number of small entities. Small

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

and government entities with jurisdiction over populations of less than

50,000.

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

Clean Air Act do not create any new requirements but simply approve

requirements that the state is already imposing. Therefore, because the

federal SIP approval does not impose any new requirements, the

Administrator certifies that it does not have a significant impact on

any small entities affected. Moreover, due to the nature of the

federal-state relationship under the CAA, preparation of a flexibility

analysis would constitute federal inquiry into the economic

reasonableness of state action. The CAA forbids EPA to base its actions

concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427

U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

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

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

Redesignation is an action that affects the status of a geographical

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

Regional Administrator certifies that the approval of the redesignation

request will not affect a substantial number of small entities.

C. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

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

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

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

select the most cost-effective and least burdensome alternative that

achieves the objectives of the rule and is consistent with statutory

requirements. Section 203 requires EPA to establish a plan for

informing and advising any small governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

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

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

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

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

federal requirements. Accordingly, no additional costs to state, local,

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

action.

D. Submission to Congress and the General Accounting Office

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

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

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

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

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

Federal Register. This rule is not a major rule as defined by 5 U.S.C.

804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate

[[Page 54563]]

circuit by December 20, 1996. Filing a petition for reconsideration by

the Administrator of this final rule does not affect the finality of

this rule for the purposes of judicial review nor does it extend the

time within which a petition for judicial review may be filed, and

shall not postpone the effectiveness of such rule or action. This

action may not be challenged later in proceedings to enforce its

requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Incorporation by reference, Intergovernmental relations.

40 CFR Part 81

Air pollution control.

Note: Incorporation by reference of the Implementation Plan for

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

of Federal Register on July 1, 1982.

Dated: October 9, 1996.

Chuck Clarke,

Regional Administrator.

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

as follows:

PART 52--[AMENDED]

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

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

Subpart WW--Washington

2. Section 52.2470 is amended by adding paragraph (c)(68) to read

as follows:

Sec. 52.2470 Identification of plan.

* * * * *

(c) * * *

(68) On March 19, 1996, the Director of Washington State Department

of Ecology (Washington) submitted to the Regional Administrator of EPA

a revision to the Carbon Monoxide State Implementation Plan for the

Vancouver area containing a maintenance plan that demonstrated

continued attainment of the NAAQS for carbon monoxide through the year

2006 and also containing an oxygenated fuels program as a contingency

measure to be implemented if the area violates the CO NAAQS.

(i) Incorporation by reference.

(A) Letter dated March 19, 1996 from Washington to EPA requesting

the redesignation of the Vancouver carbon monoxide nonattainment area

to attainment and submitting the maintenance plan; the ``Supplement to

the State Implementation Plan for Carbon Monoxide (CO) in Vancouver,

WA--Redesignation Request for Vancouver, WA as Attainment for CO,''

dated December 19, 1995, and adopted on February 29, 1996.

(B) Letters dated January 22, 1993 and April 22, 1994 from

Washington to EPA submitting a revision and replacement pages to the

State Implementation Plan; enclosure dated November 1992 entitled

``Portland-Vancouver Carbon Monoxide Non-attainment Area (Washington

State Portion), 1990 Base Year Emissions Inventory,'' together with the

emission inventory replacement pages for carbon monoxide in Vancouver,

dated December 1993.

(ii) Additional material.

(A) Appendices to the Vancouver Area Redesignation Request and

Maintenance Plan for the National Ambient Carbon Monoxide Standard

dated December 1995: Appendix A, Technical Analysis Protocol; Appendix

B, Carbon Monoxide Air Quality Data Monitoring Network; Appendix C,

Carbon Monoxide Saturation Study; Appendix D, Carbon Monoxide Air

Quality Monitoring Data; Appendix E, Emission Inventory; Appendix F,

Conformity Process; Appendix G, Historical and Projected Population,

Employment and Households; Appendix H, Portland/Vancouver Carbon

Monoxide Nonattainment Area Separation Documentation; Appendix I,

Washington Department of Ecology Vancouver Carbon Monoxide Study; and

Appendix J, Maintenance Planning Process.

PART 81--[AMENDED]

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

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

2. In Sec. 81.348, the table for ``Washington-Carbon Monoxide,'' is

amended by revising the entry for the Vancouver Area to read as

follows:

Sec. 81.348 Washington.

* * * * *

Washington-Carbon Monoxide

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Designation Classification

Designated area -----------------------------------------------------------------------------

Date\1\ Type Date\1\ Type

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* * * * * * *

Vancouver Area:

Clark County (part) Air Attainment

Quality Maintenance Area.

* * * * * * *

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\1\ This date is November 15, 1990, unless otherwise noted.

[FR Doc. 96-26874 Filed 10-18-96; 8:45 am]

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