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[Federal Register Volume 80, Number 154 (Tuesday, August 11, 2015)]
[Rules and Regulations]
[Pages 48033-48036]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19724]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2007-0112; FRL-9932-21-Region 10]

Approval and Promulgation of Air Quality Implementation Plans; 
Washington

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving the 
State Implementation Plan (SIP) revisions submitted by the State of 
Washington, Department of Ecology (Ecology). These revisions pertain to 
the plan to maintain the 1997 8-hour national ambient air quality 
standard (NAAQS) for ozone in the Vancouver portion of the Portland/
Vancouver Air Quality Maintenance Area (Pdx/Van AQMA). The maintenance 
plan for this area meets Clean Air Act (CAA) requirements and 
demonstrates that the Vancouver portion of the Pdx/Van AQMA will be 
able to remain in attainment for the 1997 ozone NAAQS through 2015. The 
EPA is approving the maintenance plan and minor revisions to the motor 
vehicle inspection and maintenance (I/M) regulations in the statewide 
Emission Check Program.

DATES: This action is effective on September 10, 2015.

ADDRESSES: The EPA has established a docket for this action under 
Docket Identification No. EPA-R10-OAR-2007-0112. All documents in the 
docket are listed on the http://www.regulations.gov Web site. Although 
listed in the index, some information may not be publicly available, 
i.e., Confidential Business Information or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through http://www.regulations.gov or in hard copy at EPA Region 10, Office of Air, 
Waste, and Toxics, 1200 Sixth Avenue, Seattle, Washington 98101. The 
EPA requests that you contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to schedule your inspection. The Regional 
Office's official hours of business are Monday through Friday, 8:30 to 
4:30, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Claudia Vergnani Vaupel, (206) 553-
6121, or by email at vaupel.claudia@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

I. Background

    The background for this action is discussed in more detail in our 
May 5, 2010 proposal. See 75 FR 24542. In that action, the EPA proposed 
to approve the CAA 110(a)(1) 8-hour ozone maintenance plan that the 
State of Washington submitted to demonstrate the continued attainment 
of the 1997 8-hour ozone NAAQS (the 8-hour ozone NAAQS) in the 
Vancouver portion of the Pdx/Van AQMA. Areas like the Vancouver portion 
of the Pdx/Van AQMA, that had been designated attainment 
(unclassifiable/attainment) for the 8-hour ozone NAAQS and had CAA 175A 
maintenance plans in place for the 1-hour ozone NAAQS, were required 
under 40 CFR 51.905, to submit 110(a)(1) plans for antibacksliding 
purposes to provide for maintenance of the 8-hour ozone NAAQS for at 
least 10 years after designation for the 8-hour ozone NAAQS. In the May 
5, 2010 proposed action, the EPA found that the maintenance plan and 
its supporting rules met the requirements of the CAA.
    The EPA also proposed to approve revisions to the I/M regulations 
in the statewide Emission Check Program. The revisions enhance the 
clarity of the rules and update them to reflect changing technology in 
automobiles, including allowing late model vehicles to be tested with 
their on-board diagnostic systems instead of with a tail-pipe test. The 
revisions also remove inspection fee provisions that had been 
previously approved into the SIP.

II. Response to Comments

    The EPA received one comment on our May 5, 2010 proposed approval 
(75 FR 24542). The comment from the Sierra Club raised concerns about 
affirmative defense provisions applicable to violations that occur due 
to excess emissions during startup, shutdown, maintenance and upsets 
(SSM) in the existing Washington SIP.
    The Sierra Club commented that the existence of the affirmative 
defense provisions in the underlying SIP compromises the ability of the 
maintenance plan to achieve its goals and threatens to cause or 
contribute to NAAQS violations in the Pdx/Van AQMA and downwind. 
Specifically, the Sierra Club described three concerns with the 
affirmative defense provisions in Southwest Clean Air Agency (SWCAA) 
and Ecology regulations, SWCAA 400-107(4)-(6) and Washington 
Administrative Code (WAC) 173-400-107(4)-(6). The commenter argued that 
the affirmative defense for excess emissions during startup and 
shutdown should be removed because the provisions ``lack 
justification'' and because excess emissions ``are already taken into 
consideration when setting emission standards and limits'' and the 
regulatory provisions are inconsistent with EPA guidance for compliance 
with CAA requirements for SIP provisions as expressed in the Memorandum 
of Steven A. Herman and Robert Perciasepe, Policy on Excess Emissions 
During Malfunctions, Startup and Shutdown (August 11, 1999) (the 
``Herman Memo''). The commenter also argued that the affirmative 
defense for excess emissions during scheduled maintenance should be 
eliminated ``because routine maintenance is part of normal operations 
and should not, by itself, justify excess emissions'' and that the 
regulatory provisions are inconsistent with the interpretation of the 
CAA in the Herman Memo. Finally, the commenter argued that the 
affirmative defense for excess emissions during upsets (i.e., 
malfunctions) is not consistent with the EPA interpretation of the 
requirements of the CAA in the Herman Memo for such provisions.
    The SWCAA and Ecology regulations that provide for an affirmative 
defense for emissions during certain events that

[[Page 48034]]

the commenter identified as objectionable are not a part of the 
specific SIP submission that was the subject of the EPA's proposed 
action but were, rather, approved into the Washington SIP in 1995. The 
EPA acknowledges that these specific provisions are not consistent with 
CAA requirements, in light of more recent court decisions and 
regulatory actions. However, the EPA does not agree that the 
affirmative defense provisions in the Washington SIP provide a basis 
for disapproval of the maintenance plan submission. The EPA's review 
for this submission is limited to whether the specific maintenance 
requirements in CAA section 110(a)(1) and the provisions of the EPA's 
Phase 1 Implementation Rule (40 CFR 51.905(a)(3) and (4)) as explained 
in our May 20, 2005 guidance),\1\ have been met. While the EPA 
understands the commenter's concerns about the existing SWCAA and 
Ecology SIP provisions, in the context of a 110(a)(1) maintenance plan 
approval the EPA is not required to re-evaluate the validity of all 
previously approved SIP provisions.
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    \1\ May 20, 2005 memorandum from Lydia N. Wegman to Air Division 
Directors, Maintenance Plan Guidance Document for Certain 8-hour 
Ozone Areas Under Section 110(a)(1) of Clean Air Act.
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    Although it is not required to address existing affirmative defense 
provisions in the context of this action on a maintenance plan, the EPA 
does have other authority to address alleged deficiencies in existing 
SIP provisions. In particular, the EPA has authority under section 
110(k)(5) to address existing SIP deficiencies whenever it determines 
that a SIP provision is substantially inadequate. The EPA notes that 
since receipt of the comments discussed above on this action, the EPA 
finalized a call for SIP revisions (SSM SIP Call) as necessary to 
remove the identified affirmative defense provisions from the 
Washington SIP. See 80 FR 33840, June 12, 2015. Thus, the EPA has 
addressed the concerns regarding the affirmative defense provisions in 
the SWCAA and Ecology regulations raised by the commenter in a separate 
action.\2\
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    \2\ Furthermore, the commenter's characterization of the EPA's 
interpretation of the CAA with respect to affirmative defense 
provisions in SIPs is no longer current. Readers interested in the 
EPA's position on affirmative defense provisions should refer to the 
SSM SIP Call at 80 FR 33840 (June 12, 2015).
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    The EPA emphasizes that its approval of a maintenance plan does not 
mean that the SIP for the state in question fully meets each and every 
requirement of the CAA. More specifically, this approval does not 
constitute a finding that Washington's SIP, including the affirmative 
defense provisions, meets all CAA requirements. Nor does this final 
action contradict the EPA's separate finding in the SSM SIP Call that 
certain provisions in the Washington SIP, including the SWCAA rules, 
are substantially inadequate and therefore must be addressed to be 
consistent with CAA requirements. Rather, the nature of today's final 
action is a finding addressing the adequacy of the SIP to meet certain 
identified maintenance requirements. As discussed in our proposed 
action, the following is a summary of our evaluation of the submission 
against the five maintenance requirements in CAA section 110(a)(1) and 
the provisions of the EPA's Phase 1 Implementation Rule (40 CFR 
51.905(a)(3) and (4)):
    1. An attainment inventory, which is based on actual typical summer 
day emissions of volatile organic compounds (VOCs) and oxides of 
nitrogen (NOX) from a base year chosen by the state.
    Ecology provided a comprehensive and current emissions inventory 
for NOX and VOCs for the 2002 base year from which it 
projected emissions. The inventory is based on emissions from a 
``typical summer day.''
    2. A maintenance demonstration which shows how the area will remain 
in compliance with the 8-hour ozone standard for 10 years after the 
effective date of the designation.
    Ecology projected that the total emissions of ozone precursors from 
Vancouver will decrease through 2015, which is further than 10 years 
from the effective date of the initial designations for the 1997 8-hour 
ozone standard (See 69 FR 23858, April 30, 2004). Ecology used air 
quality modeling to assess the comprehensive impacts of growth through 
2015 on ozone levels in the area and demonstrated to the EPA that the 
highest predicted design value for Vancouver is 0.072 parts per 
million, which is below the 1997 and the 2008 ozone NAAQS.
    3. A commitment to continue to operate ambient air quality monitors 
to verify maintenance of the 8-hour ozone standard.
    Ecology commits to continue operating air quality monitoring 
stations in accordance with 40 CFR part 58 throughout the maintenance 
period to verify maintenance of the 1997 8-hour ozone standard, and 
will submit quality assured ozone data to the EPA through the Air 
Quality System.
    4. A contingency plan that will ensure that any violation of the 8-
hour ozone NAAQS will be promptly corrected.
    The provisions in the contingency plan are linked to ambient 
concentrations of ozone and would be triggered if measured ozone levels 
at any of the ozone monitoring sites exceed early-warning thresholds or 
if a violation of the 8-hour ozone standard occurs. The contingency 
measures include a range of response actions that may be selected for 
implementation.
    5. An explanation of how the state will verify continued attainment 
of the standard under the maintenance plan.
    Ecology will continue to monitor ambient air quality ozone levels 
in the Vancouver portion of the Pdx/Van AQMA and will update countywide 
emission inventories every three years. If ambient ozone levels 
increase, Ecology will evaluate the emissions inventory against the 
2002 and 2015 inventories in the maintenance plan.
    Because the commenter's concerns with the affirmative defense 
provisions of Washington's SIP have been addressed through the SSM SIP 
Call and the instant action does not directly affect these existing 
provisions in Washington's SIP, the EPA is taking final action to 
approve the ozone maintenance plan as originally proposed.
    The EPA emphasizes that approval of the maintenance plan does not 
relieve SWCAA or Ecology of the responsibility to remove legally 
deficient SIP provisions pursuant to a SIP call. To the contrary, the 
EPA maintains that affirmative defense provisions are contrary to CAA 
requirements and has taken separate action to require correction of 
those deficiencies. For an explanation of the EPA's interpretation of 
the CAA with respect to affirmative defense provisions in SIPs, see 80 
FR 33840, 33981 (June 12, 2015).

III. Final Action

    The EPA is approving the 110(a)(1) ozone maintenance plan for the 
Vancouver portion of the Pdx/Van AQMA and the new industrial growth 
allowances that have been used in the maintenance demonstration for 
this submission. Additionally, the EPA is incorporating by reference 
into the federally enforceable SIP the revisions to the I/M provisions 
(WAC Chapter 173-422) that merely reflect the changes as a result of 
technology upgrades in automobiles and remove inspection fee provisions 
that had been previously approved into the SIP.

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference of the

[[Page 48035]]

Ecology regulations (WAC Chapter 173-422) described in the amendments 
to 40 CFR part 52 set forth below. The EPA has made, and will continue 
to make, these documents generally available electronically through 
www.regulations.gov and/or in hard copy at the appropriate EPA office 
(see the ADDRESSES section of this preamble for more information).

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, the EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     does not provide the EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where the EPA or an Indian tribe has demonstrated 
that a tribe has jurisdiction. In those areas of Indian country, the 
rule does not have tribal implications and it will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    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. The EPA will submit a report containing this action 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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 October 13, 2015. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Sulfur oxides, Volatile 
organic compounds.

    Dated: July 30, 2015.
Dennis J. McLerran,
Regional Administrator, EPA Region 10.

    For the reasons stated in the preamble, 40 CFR part 52 is amended 
as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for Part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart WW--Washington

Sec.  52.2470  [Amended]

0
2. Section 52.2470 is amended:
0
a. In paragraph (c) Table 1--Regulations Approved Statewide by:
0
i. Revising the entries 173-422-020, 173-422-030, 173-422-031, 173-422-
060, and 173-422-065, 173-422-070, 173-422-075, 173-422-160, 173-422-
190, 173-422-195; and
0
ii. Removing the entry 173-422-130.
0
b. In paragraph (e) in Table 2--ATTAINMENT, MAINTENANCE, AND OTHER 
PLANS by adding an entry for ``8-Hour Ozone 110(a)(1) Maintenance 
Plan'' at the end of the table.
    The revisions and addition read as follows:

Sec.  52.2470  Identification of plan.

* * * * *
    (c) * * *

                                     Table 1--Regulations Approved Statewide
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                                                          State
         State citation             Title/subject    effective date   EPA approval date        Explanations
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                Washington Administrative Code, Chapter 173-422 Motor Vehicle Emission Inspection
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                                                  * * * * * * *
173-422-020....................  Definitions.......          7/4/02  8/11/15 [Insert     .......................
                                                                      Federal Register
                                                                      citation].
173-422-030....................  Vehicle emission            7/4/02  8/11/15 [Insert     .......................
                                  inspection                          Federal Register
                                  requirement.                        citation].

[[Page 48036]]

 
173-422-031....................  Vehicle emission            7/4/02  8/11/15 [Insert     .......................
                                  inspection                          Federal Register
                                  schedules.                          citation].
 
                                                  * * * * * * *
173-422-060....................  Gasoline vehicle            7/4/02  8/11/15 [Insert     .......................
                                  emission                            Federal Register
                                  standards.                          citation].
173-422-065....................  Diesel vehicle              7/4/02  8/11/15 [Insert     .......................
                                  exhaust emission                    Federal Register
                                  standards.                          citation].
173-422-070....................  Gasoline vehicle            7/4/02  8/11/15 [Insert     .......................
                                  exhaust emission                    Federal Register
                                  testing                             citation].
                                  procedures.
173-422-075....................  Diesel vehicle              7/4/02  8/11/15 [Insert     .......................
                                  inspection                          Federal Register
                                  procedure.                          citation].
 
                                                  * * * * * * *
173-422-160....................  Fleet and diesel           3/31/95  8/11/15 [Insert     Except:
                                  owner vehicle                       Federal Register   The part of 173-422-
                                  testing                             citation].          160(3) that says ``of
                                  requirements.                                           twelve or less
                                                                                          dollars''.
 
                                                  * * * * * * *
173-422-190....................  Emission                    7/4/02  8/11/15 [Insert     .......................
                                  specialist                          Federal Register
                                  authorization.                      citation].
173-422-195....................  Listing of                  7/4/02  8/11/15 [Insert     .......................
                                  authorized                          Federal Register
                                  emission                            citation].
                                  specialists.
 
                                                  * * * * * * *
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* * * * *
    (e) * * *

                                Table 2--Attainment, Maintenance, and Other Plans
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                                       Applicable
     Name of SIP provision           geographic or      State submittal     EPA  Approval          Comments
                                  nonattainment  area         date              date
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                                                  * * * * * * *
8-Hour Ozone 110(a)(1)           Vancouver............       1/17/2007   8/11/2015           ...................
 Maintenance Plan.                                                       [Insert page
                                                                          number where the
                                                                          document begins].
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[FR Doc. 2015-19724 Filed 8-10-15; 8:45 am]
BILLING CODE 6560-50-P
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