[Federal Register Volume 61, Number 187 (Wednesday, September 25, 1996)]
[Rules and Regulations]
[Pages 50235-50238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24523]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WA43-7116; FRL-5608-7]
Approval and Promulgation of Air Quality Implementation Plans;
Washington; Revision to the State Implementation Plan Vehicle
Inspection and Maintenance Programs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: In this action, EPA is approving the Inspection and
Maintenance (I/M) State Implementation Plan (SIP), for Washington
State. On August 21, 1995, Washington submitted SIP revision requests
to the EPA to satisfy the requirements of sections 182(b)(4) and
182(c)(3) of the Clean Air Act, (1990) and Federal I/M rule 40 CFR part
51, subpart S. These SIP revisions will require vehicle owners to
comply with the Washington I/M program in the two Washington ozone
nonattainment areas classified as ``marginal'' and in the three carbon
monoxide nonattainment areas classified as ``moderate''. This revision
applies to the Washington counties of Clark, King, Pierce, Snohomish,
and Spokane.
EFFECTIVE DATE: This rule is effective as of September 25, 1996.
ADDRESSES: Copies of material submitted to EPA may be examined during
normal business hours at the following locations: EPA, Region 10,
Office of Air Quality, 1200 Sixth Avenue (OAQ-107), Seattle, Washington
98101, and the Washington State Department of Ecology, P.O. Box 47600,
Olympia, WA 98504-7600.
FOR FURTHER INFORMATION CONTACT: Stephanie Cooper, Office of Air
Quality, (OAQ-107), 1200 6th Avenue, Seattle, WA 98101, (206) 553-6917.
SUPPLEMENTARY INFORMATION:
I. Clean Air Act Requirements
The Clean Air Act, as amended in 1990 (CAA or Act), requires States
to make changes to improve existing I/M programs or implement new ones.
Section 182(a)(2)(B) required any ozone nonattainment area which has
been classified as ``marginal'' (pursuant to section 181(a) of the Act)
or worse with an existing I/M program that was part of a SIP, or any
area that was required by the 1977 Amendments to the Act to have an I/M
program, to immediately submit a SIP revision to bring the program up
to the level required in past EPA guidance or to what had been
committed to previously in the SIP, whichever was more stringent. All
carbon monoxide nonattainment areas were also subject to this
requirement to improve existing or previously required programs to this
level. In addition, any ozone nonattainment area classified as moderate
or worse must implement a basic or an enhanced I/M program depending
upon its classification, regardless of previous requirements.
Congress directed the EPA in section 182(a)(2)(B) to publish
updated guidance for State I/M programs, taking into consideration
findings of the Administrator's audits and investigations of these
programs. The States were to incorporate this guidance into the SIP for
all areas required by the Act to have an I/M program. Ozone
nonattainment areas classified as ``serious'' or worse with populations
of 200,000 or more, and CO nonattainment areas with design values above
12.7 ppm and populations of 200,000 or more, and metropolitan
statistical areas with populations of 100,000 or more in the northeast
ozone transport region, were required to meet EPA guidance for enhanced
I/M programs.
The EPA has designated two areas as ozone nonattainment in the
State of Washington. The Puget Sound ozone nonattainment area is
classified as marginal and contains King, Pierce, and Snohomish
counties. The Vancouver Air Quality Maintenance Area is classified as
marginal and contains Clark county. Additionally, three areas in
Washington state are designated as CO nonattainment areas. Both the
Spokane Carbon Monoxide Nonattainment area (Spokane County) and the
Puget Sound Carbon Monoxide
[[Page 50236]]
Nonattainment area (King, Pierce, and portions of Snohomish Counties)
have design values greater than 12.7 ppm and are designated as
``moderate plus''. The Vancouver Air Quality Maintenance Area is a
``moderate'' carbon monoxide nonattainment area, with a design value
below 12.7 ppm. The central Puget Sound has an urbanized area
population of 1,793,612, and Spokane has an urbanized area population
of 266,709. Based on these nonattainment designations and populations,
a basic I/M program is required in the Vancouver and Puget Sound ozone
nonattainment area, while enhanced I/M programs are required in the
Puget Sound and Spokane carbon monoxide nonattainment areas.
By this action, the EPA is approving the submittal of the
Washington I/M SIP. The EPA has reviewed the State submittal against
the statutory requirements and for consistency with the EPA
regulations. A summary of the EPA's analysis is provided below. In
addition, a history and a summary to support approval of the State
submittal is contained in a TSD, dated May 10, 1996, which is available
from the Region 10 Office (address provided above).
II. I/M Regulation General SIP Submittal Requirements
The original I/M regulation was codified at 40 CFR part 51, Subpart
S, and required States to submit an I/M SIP revision which includes all
necessary legal authority and the items specified in 40 CFR 51.372
(a)(1) through (a)(8) by November 15, 1993. On September 18, 1995, the
EPA published a final regulation establishing the ``low enhanced'' I/M
requirements, pursuant to section 182 and 187 of the Act (40 CFR part
51). These low enhanced I/M requirements superseded the former enhanced
I/M requirements. The State has met the low enhanced I/M requirements
established by the September 18, 1995 rulemaking.
III. State Submittal
On August 21, 1995, the State of Washington submitted the I/M SIP
for its five carbon monoxide and ozone nonattainment areas. Public
hearings for the submittal were held in Vancouver, Bellevue, and
Spokane on June 6, 7, and 8, 1995, respectively.
The submittals provide for the continued implementation of I/M
programs in the Puget Sound, Spokane, and Vancouver areas. Inspection
and Maintenance programs have been running in the Puget Sound area
since 1982, in Spokane since 1985, and in Vancouver since 1993.
Washington's centralized, test only, biennial program meets the
requirements of EPA's low enhanced performance standard and other
requirements contained in the Federal I/M rule in the applicable
nonattainment counties. Testing will be overseen by the Washington
State Department of Ecology and its I/M contractor, Systems Control.
Other aspects of the Washington I/M program include: testing of 1968
and later light duty vehicles and trucks and heavy duty trucks, a test
fee to ensure the State has adequate resources to implement the
program, enforcement by registration denial, a repair effectiveness
program, contractual requirements for testing convenience, quality
assurance, data collection, reporting, test equipment and test
procedure specifications, public information and consumer protection,
and inspector training and certification. In addition, the low enhanced
I/M programs will include: a two-speed (2500 and idle) test or a loaded
idle test, and a program to evaluate on-road testing. An analysis of
how the Washington I/M program meets the EPA's I/M regulation was
provided in 61 FR 38086, published on July 23, 1996.
The criteria used to review the submitted SIP revision are based on
the requirements stated in Section 182 of the CAA and the most recent
Federal I/M regulations (September 18, 1995). EPA has reviewed the
Washington I/M SIP revision. The Washington regulations and
accompanying materials contained in the SIP represent an acceptable
approach to the I/M requirements and meet the criteria required for
approvability.
IV. Response to Comments
Comment: One commenter, which is an entity of the Federal
government, objected to an aspect of the I/M program regarding emission
inspections by fleet operators. Operators who chose to utilize the
fleet vehicle self-testing program must purchase certificate forms by
paying a fee of $12 per vehicle. The state regulation that establishes
vehicle testing requirements at WAC Sec. 173-422-160 waives the payment
of fees for state and local government fleets. The Federal entity
commented that the state requirements are impermissibly discriminatory
and an unconstitutional tax of the Federal government by the state. The
commenter also wrote that the $12 fee per vehicle certificate is
impermissible because the fee exceeds the state's administrative costs.
Response: The EPA does not agree that the state fee structure which
requires payment of a fee by Federal fleet operators impermissibly
discriminates against the Federal government or that the fee of $12 is
impermissibly high. The Ecology regulations at WAC 173-422-160
establish requirements for all fleet operators, including the
requirement for fleet operators to submit certificate forms of emission
self-testing for each vehicle, at a cost of $12 for each certificate.
The regulation specifically waives the payment for fleet forms only for
state and local government fleets.
The EPA interprets section 118 of the CAA requirement that Federal
agencies comply with air pollution requirements ``in the same manner
and to the same extent as any nongovernmental entity'' to mean that
Federal entities must comply with any air pollution rule established
under the Act to no less an extent than nongovernmental entities. In
this case, the state regulation applies to all fleet operators, both
governmental and nongovernmental, and waives the fee requirement only
for state and local governments. Therefore, the EPA views the state as
requiring payment of fees by Federal entities in the same manner as
nongovernmental entities. The EPA believes that Congress has consented
to the imposition of the state fees on Federal entities in a situation
such as this by enacting section 118 of the CAA. In addition, EPA notes
that this is consistent with the result in U.S. v. South Coast Air
Quality Management District, 748 F.Supp. 732 (C.D. Calif. 1990), where
the Court wrote that a state permit fee requirement applying to both
Federal and private entities that exempts local and state government
agencies is consistent with section 118 of the CAA.
Under section 118(a) of the CAA, a Federal entity is required to
comply with ``any requirement to pay a fee or charge imposed by a State
or local agency to defray the costs of its air pollution regulatory
program.'' The fee of $12 per vehicle has been established by Ecology
under the authority of RCW 70.120.170(4), which requires Ecology to set
fees at an amount ``required to (i) compensate the contractor or
inspection facility owner, and (ii) offset the general fund appropriate
to the department to cover the administrative costs of the motor
vehicle emission inspection program.'' Ecology has written that it
established fleet self-testing fees to recoup the costs associated with
implementing the emission testing program, including the cost of
equipment audits, travel expenses, training and continued education,
printing and storing of forms, and the certification of the self-
testing fleet inspection personnel. The commenter has not submitted any
data to indicate
[[Page 50237]]
that the fee of $12 per vehicle is unreasonable and EPA concludes that
on its face the fee does not appear to be unreasonable. EPA is
approving the fee structure because the State has established the fee
consistent with the CAA and state law. Under section 110(k)(3) of the
CAA, EPA must approve any SIP revision submitted by a state that meets
all of the applicable requirements of the Act.
Comment: One Federal government entity commented that Ecology is
improperly requiring annual inspection of its fleet.
Response: Legislation enacted by the State of Washington at RCW
70.120.170(5) requires ``all units of local government and agencies of
the state'' to test the emissions of their vehicles annually. In
discussions with the Ecology about this comment, Ecology has agreed
that Federal entities are not subject to this requirement, and need
only meet the requirement to test emissions biennially, as required by
RCW 70.120.170(1).
V. Today's Action
The EPA is approving the Washington I/M SIP as meeting the
requirements of the CAA and the Federal I/M rule. All required SIP
items have been adequately addressed as discussed in this Federal
Register action.
Pursuant to Section 553(d)(3) of the Administrative Procedures Act
(APA), this final notice is effective upon the date of publication in
the Federal Register. Section 553(d)(3) of the APA allows EPA to waive
the requirement that a rule be published 30 days before the effective
date if EPA determines there is ``good cause'' and publishes the
grounds for such a finding with the rule. Under section 553(d)(3), EPA
must balance the necessity for immediate federal enforceability of
these SIP revisions against principles of fundamental fairness which
require that all affected persons be afforded a reasonable time to
prepare for the effective date of a new rule. United States v.
Gavrilovic, 551 F 2d 1099, 1105 (8th Cir., 1977). The purpose of the
requirement for a rule to be published 30 days before the effective
date of the rule is to give all affected persons a reasonable time to
prepare for the effective date of a new rule.
EPA is making this rule effective upon September 25, 1996 to
provide necessary rulemaking for the forthcoming Puget Sound Ozone and
Carbon Monoxide Redesignations. The State relies on the existence of an
approved I/M program as part of the carbon monoxide maintenance
demonstration. The WDOE will discontinue implementation of the
oxygenated fuel program in the Seattle-Tacoma-Everett Consolidated
Metropolitan Statistical Area (CMSA) once approval of the carbon
monoxide maintenance plan becomes effective. As much time as possible
needs to be provided for State and local air authorities to notify fuel
distributors so that distribution plans can be modified in response to
these changes.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic and
environmental factors and in relation to relevant statutory and
regulatory requirements.
VI. Administrative Requirements
A. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, Part D of the CAA
do not create any new requirements, but simply approve requirements
that the state is already imposing. Therefore, because the federal SIP-
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the federal-state relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42
U.S.C. 7410(a)(2).
Redesignation of an area to attainment under section 107(d)(3)(E)
of the CAA does not impose any new requirements on small entities.
Redesignation is an action that affects the status of a geographical
area and does not impose any regulatory requirements on sources. I
certify that the approval of the redesignation request will not affect
a substantial number of small entities.
C. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
E. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the
[[Page 50238]]
appropriate circuit by November 25, 1996. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2), 42 U.S.C. 7607(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Nitrogen dioxide, Ozone,
Volatile organic compounds.
Note: Incorporation by reference of the Implementation Plan for
the State of Washington was approved by the Director of the Office
of Federal Register on July 1, 1982.
Dated: September 6, 1996.
Chuck Clarke,
Regional Administrator.
PART 52--[AMENDED]
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart WW--Washington
2. Section 52.2470 is amended by adding paragraph (c)(61) to read
as follows:
Sec. 52.2470 Identification of plan.
* * * * *
(c) * * *
(61) SIP revisions received from WDOE on August 21, 1995, requiring
vehicle owners to comply with its I/M program in the two Washington
ozone nonattainment areas classified as ``marginal'' and in the three
carbon monoxide nonattainment areas classified as ``moderate''. This
revision applies to the Washington counties of Clark, King, Pierce,
Snohomish, and Spokane.
(i) Incorporation by reference.
(A) July 26, 1995 letter from Director of WDOE to the Regional
Administrator of EPA submitting revisions to WDOE's SIP consisting of
the July 1995 Washington State Implementation Plan for the Motor
Vehicle Inspection and Maintenance Program (including Appendices A
through F), adopted August 1, 1995, and a supplement letter and ``Tools
and Resources'' table dated May 10, 1996.
[FR Doc. 96-24523 Filed 9-24-96; 8:45 am]
BILLING CODE 6560-50-P
