[Federal Register Volume 63, Number 48 (Thursday, March 12, 1998)]
[Rules and Regulations]
[Pages 12007-12013]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5978]
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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]
BILLING CODE 6560-50-P
