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

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]

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