Inspection/Maintenance Program Requirements--Provisions for
Redesignation
[Federal Register: January 5, 1995]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 51
[FRL-5132-7]
RIN 2060-AE21
Inspection/Maintenance Program Requirements--Provisions for
Redesignation
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
SUMMARY: Today's action revises the motor vehicle Inspection/
Maintenance Program Requirements final rule promulgated on November 5,
l992. EPA proposed these revisions on June 28, l994, allowing
stakeholders ample opportunity for review and comment, and is taking
final action on the revisions to include additions and modifications,
regarding State Implementation Plan submissions for states with
nonattainment areas that are in a position to redesignate to
attainment. The revisions specify SIP requirements only for areas that
are subject to the basic Inspection/Maintenance program requirement and
that otherwise qualify for redesignation from nonattainment to
attainment for the carbon monoxide or ozone national ambient air
quality standards. This rule allows such areas to defer adoption and
implementation of some of the otherwise applicable requirements
established in the original promulgation of the Inspection/Maintenance
rule. It is an appropriate time to take this action since the rule
applies only to areas that by virtue of their air quality
classification are required to implement a basic I/M program and that
submit, and otherwise qualify for, a redesignation request.
EFFECTIVE DATE: The effective date of this rule is January 5, 1995.
ADDRESSES: Materials relevant to this rulemaking are contained in
Public Docket No. A-93-21. The docket is located at the Air Docket,
room M-1500 (LE-131), Waterside Mall SW., Washington, DC 20640. The
Docket may be inspected from 8 a.m. to 4:30 p.m. on weekdays. A
reasonable fee may be charged for coping docket material.
FOR FURTHER INFORMATION CONTACT: Eugene J. Tierney, Office of Mobile
Sources, National Vehicle and Fuel Emissions Laboratory, 2565 Plymouth
Road, Ann Arbor, Michigan, 48105. (313) 668-4456.
SUPPLEMENTARY INFORMATION: Section l07(d)(3)(E) of the Clean Air Act,
as amended in l990 (the Act), states that an area can be redesignated
to attainment if the following conditions are met: EPA has determined
that the National ambient air quality standards have been attained; EPA
has fully approved the applicable implementation plan under section
110(k); EPA has determined that the improvement in air quality is due
to permanent and enforceable reductions in emissions due to the
implementation plan and other permanent and enforceable reductions; the
State has met all applicable requirements of section 110 and part D;
and, EPA has fully approved a maintenance plan for the area under
section 175A of the Act. Section 175A in turn requires states that
submit a redesignation request to submit a plan, and any additional
measures if necessary, for maintenance of the air quality standard, for
at least a 10 year period following EPA's final approval of the
redesignation. It also requires the plan to include contingency
provisions to ensure prompt correction of any violation of the standard
which occurs after redesignation. The contingency measures must include
a provision requiring the state to implement measures which were
contained in the State Implementation Plan (SIP) prior to redesignation
as an attainment area.
Today's action revises subpart S of part 51 of title 40 of the Code
of Federal Regulations (subpart S) to address Inspection/Maintenance
(I/M) program requirements for areas subject to the Act's basic I/M
requirements and that otherwise would qualify for and ultimately obtain
approval by EPA of redesignation requests to attainment. This final
rule adds a new paragraph to the regulation pertaining to State
Implementation Plan (SIP) submissions for areas required to implement a
basic I/M program that are submitting and otherwise qualify for
approval of a redesignation request. Areas subject to basic I/M fall
into several categories. There are basic areas that will be submitting
redesignation requests that do not currently have I/M programs, or have
either a basic program implemented pursuant to the l977 amendments to
the Act or a basic program required to be upgraded to meet the
requirements of EPA's I/M regulations. For purposes of today's final
rulemaking, EPA is using the word ``upgraded'' to refer to a basic I/M
program that meets all the basic I/M program requirements of the I/M
rule, subpart S, part 5l, title 40 of the Code of Federal Regulations
in addition to pre-l990 Clean Air Act I/M program policy. This rule
applies only to areas that by virtue of their air quality
classification are required to implement a basic I/M program, and that
submit, and otherwise qualify for a redesignation request.Pursuant to
sections 182(a)(2)(B)(i) and 182(b)(4) of the Act, basic I/M areas must
submit a SIP revision that includes any ``provisions necessary to
provide for a vehicle inspection and maintenance program'' of no less
stringency than either the program that was in the SIP at the time of
passage of the Act or the minimum basic program requirements, whichever
is more stringent. For purposes of this final rule EPA interprets the
statutory language of [[Page 1736]] section 182(a)(2)(B)(i) and section
l82(b)(4) as providing a degree of flexibility compared with the
statutory language in section l82(c)(3), which requires enhanced I/M
areas to submit a SIP revision ``to provide for an enhanced program''.
For areas that otherwise qualify for redesignation to attainment and
ultimately obtain EPA approval to be redesignated, EPA is today
amending Subpart S to allow such areas to be redesignated if they
submit a SIP that contains the following four elements: (1) Legal
authority for a basic I/M program (or an enhanced program, as defined
in this final rule, if the state chooses to opt up), meeting all of the
requirements of Subpart S such that implementing regulations can be
adopted without further legislation; (2) a request to place the I/M
plan or upgrades, as defined in this rule, (as applicable) in the
contingency measures portion of the maintenance plan upon redesignation
as described in the fourth element below; (3) a contingency measure to
go into effect as soon as a triggering event occurs, consisting of a
commitment by the Governor or the Governor's designee to adopt
regulations to implement the I/M program in response to the specified
triggering event; and (4) a commitment that includes an enforceable
schedule for adopting and implementing the I/M program, including
appropriate milestones, in the event the contingency measure is
triggered (milestones shall be defined by states in terms of months
since the triggering event). EPA believes that for areas that otherwise
qualify for redesignation a SIP meeting these four requirements would
satisfy the obligation to submit ``provisions to provide'' for a
satisfactory I/M program, as required by the statute.
With these amendments the determination of whether a state fulfills
the basic I/M SIP requirements will depend, for the purposes of
redesignation approval only, on whether the state meets the four
requirements listed above. EPA believes that it is permissible to
interpret the basic I/M requirement to provide this flexibility and
that it should apply only for the limited purpose of considering a
redesignation request to attainment.
Summary of Comments
EPA received comments from the Natural Resources Defense Council
(NRDC) opposing the proposal to redesignate an area as in attainment
when such an area has not yet submitted regulations for a basic I/M
program. NRDC argues that the phrase ``any provisions necessary''
plainly encompasses any adopted regulations needed to implement the
program. NRDC argues that EPA ignores the impact of the word ``any''
and claims that Congress used this term to require that the State
submit ``all'' that is necessary to put a basic I/M program in place.
NRDC further argues that without adopted regulations a SIP is
incomplete and cannot be approved.
EPA disagrees with NRDC's comments. The plain language of the
statute requires that each SIP include ``any provisions necessary to
provide for'' the required I/M program. It is EPA's view that what is
``necessary'' to provide for the required I/M program depends on the
area in question. For areas which have attained the ambient standard
with the benefit of only the current program, or no program at all, EPA
does not believe it is ``necessary'' to revise or adopt new regulations
and undertake other significant planning efforts which are not
essential for clean air, and which would not be implemented after
redesignation occurred because they are not ``necessary'' for
maintenance. For such areas that would otherwise be eligible for
redesignation to attainment, EPA believes that a contingency plan that
includes already enacted legislative authority and provides for
adoption of an I/M program on an expeditious schedule if the area
develops a problem is the only set of provisions necessary to provide
for an I/M program.
Although for most purposes EPA will continue to interpret
``provisions necessary to provide for'' a basic I/M program to require
full adoption and expeditious implementation of such a program it is
appropriate, based on the flexible language provided in section
182(a)(2)(B)(i) and 182(b)(4) as compared with section l82(c)(3), to
revise the SIP revision requirements applicable to basic I/M areas that
otherwise qualify for, and ultimately receive, redesignation.
Contrary to NRDC's assertions, a SIP revision applicable to basic
I/M areas that otherwise qualify for, and ultimately receive,
redesignation would meet the minimum completeness criteria without
adopted regulations. EPA promulgated criteria setting forth the minimum
criteria necessary for any submittal to be considered complete. 40 CFR
part 51, appendix V. However, EPA recognizes that not all of the listed
criteria are necessarily applicable to all of the various types of
submissions which require a completeness determination. Accordingly,
EPA interprets the completeness criteria to apply only those criteria
that are relevant to the particular types of submissions. <SUP>1
\1\Emission inventories required pursuant to 42 U.S.C.
7511a(a)(1) for ozone nonattainment areas are also an example of a
required submittal that by definition could never satisfy all of the
completeness criteria. As with committal SIPs, emission inventories
are not in the form of regulations and do not include other
technical items identified in the completeness criteria such as
emission limits or test methods. 40 CFR part 51, appendix V, section
2.1(d), (g).
To be complete, a plan submission typically must supply the
elements necessary to comply with the provisions of the CAA, including,
among other things, specific enforceable measures. 40 CFR part 51,
appendix V. section 2.l(d). As discussed earlier, however, EPA believes
that it may provide that adopted regulations are not necessary to meet
the statutory requirements of sections 182(a)(2)(B)(i) and 182(b)(4) of
the CAA. EPA interprets these sections to provide that in some
circumstances areas should be allowed to submit plans which lack
specific enforceable measures, as long as the SIP includes provisions
necessary to provide for the required program. It makes little sense
for Congress to provide such flexibility under these sections, only to
require that such submissions be summarily rejected on the grounds of
incompleteness. A reasonable reading of the statute would give effect
to both provisions by permitting areas that otherwise qualify for, and
ultimately receive, redesignation to have their redesignation requests
determined ``complete'' if the submission contains ``provisions
necessary to provide for'' the I/M program. Thus, as long as such an
area submits a SIP that contains the four elements discussed in this
rule, EPA will deem that submission ``complete'' only for the purposes
of determining whether an area seeking redesignation has met the basic
I/M requirements.
NRDC also commented that Congress did not intend the phrase 'any
provisions necessary' to justify a mere commitment to adopt I/M
regulations at some later date. NRDC cites Natural Resources Defense
Council v. Environmental Protection Agency, 22 F.3d 1125 (D.C. Cir.
1994) (``NRDC v. EPA'') for further support of their argument.
As discussed in the proposal, in NRDC v. EPA, 22 F.3d 1125 (D. C.
Cir. l994) the D. C. Court of Appeals held that EPA did not have
authority to construe section ll0(k)(4) to authorize conditional
approval of an I/M committal SIP that contains no specific substantive
measures. A premise of the case is that I/M SIP submissions are
required to have fully adopted rules. In [[Page 1737]] today's rule,
EPA continues to interpret section 182 as generally requiring I/M
programs to have fully adopted rules. However, EPA here is
reinterpreting the relevant statutory sections to permit an exception
to this general requirement for areas otherwise qualifying for
redesignation to attainment. Based on this interpretation, the SIPs for
states that otherwise qualify for redesignation may receive full
approval, not conditional approval under section ll0(K)(4),if they
contain legislative authority for, and a commitment to adopt, an I/M
program in their contingency plan. Thus, the court's holding in NRDC v.
EPA is not implicated here.
Without these amendments, states that are being redesignated to
attainment would have to adopt a full I/M program for the purpose of
obtaining full approval of their SIPs as meeting all applicable SIP
requirements, which is a prerequisite for approval of a redesignation
request. Once redesignated, these areas could discontinue
implementation of this program (assuming it was not needed for
maintenance of the ozone or CO standard) as long as it was converted to
a contingency measure meeting all the requirements of EPA redesignation
policy. Section 175A(d) provides that each plan revision contain
contingency provisions necessary to assure that the State will promptly
correct any violation of the standard which occurs after the
redesignation of the area to attainment. These provisions must include
a requirement that the state will implement all measures which were
contained in the SIP for the area before redesignation. There are four
possible scenarios under which an area can submit a redesignation
request: (1) Areas without operating I/M programs; (2) areas with
operating I/M programs that continue operation without upgrades; (3)
areas with operating I/M programs; and (4) areas with operating I/M
programs that are discontinued. A detailed explanation of each scenario
is in the proposal.
NRDC commented that the CAA does not authorize conversion of I/M
programs to contingency measures and that section 175A imposes a
mandatory duty on an area that is redesignated to continue the emission
control programs the area adopted prior to redesignation. NRDC further
argued that failure to adopt regulations will result in more air
pollution.
EPA disagrees. Section 175A requires that the state ``promptly''
correct any violation of the standard, but does not mandate that the
contingency measures be fully adopted programs. In contrast, section
l72(c)(9) requires that contingency measures for nonattainment plans
``take effect in any such case without further action by the State or
the Administrator.'' Since 175A contains no such requirement that the
contingency measures take effect without further action, it is clear
that Congress did not intend to require contingency measures under
section 175A to contain fully adopted programs. If an area did not
require adoption or implementation of an I/M program in order to
otherwise qualify to be redesignated to attainment, EPA believes it
would be a wasteful exercise and impose needless costs to force states
to go through full adoption of regulations only to have these
regulations used as a contingency measure once the redesignation is
approved.
In today's action, it should be understood that, pursuant to
section 175A(c), while EPA considers the redesignation request, the
state shall be required to continue to meet all the requirements of
this subpart. This includes the submission of another SIP revision
meeting the existing requirements for fully adopted rules and the
specific implementation deadline applicable to the area as required
under 40 CFR 51.372 of the I/M rule. If the state does not comply with
these requirements it shall be subject to sanctions pursuant to section
l79. Because the possibility for sanctions exists, states which do not
have a solid basis for approval of the redesignation request and
maintenance plan shall proceed to fully prepare and plan to implement a
basic I/M program that meets all the requirements of subpart S.
The SIP revision must demonstrate that the performance standard in
either 40 CFR 53.351 or 40 CFR 51.352 will be met using an evaluation
date (rounded to the nearest January for carbon monoxide and July for
hydrocarbons) seven years after the trigger date. Emission standards
for vehicles subject to an IM240 test may be phased in during the
program but full standards must be in effect for at least one complete
test cycle before the end of the five year period. All other
requirements shall take effect within 24 months of the trigger date.
Furthermore, a state may not discontinue implementation of an I/M
program until the redesignation request and maintenance plan (that does
not rely on reductions from I/M) are finally approved. If the
redesignation request is approved, any sanctions already imposed, or
any sanctions clock already triggered, would be terminated.
Paperwork Reduction Act
Today's rule places no information collection or record-keeping
burden on respondents. Therefore, an information collection request has
not been prepared and submitted to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act U.S.C. 3501 et seq.
Judicial Review
Under section 307(b)(1) of the Act, EPA finds that these
regulations are of national applicability. Accordingly, judicial review
of this action is available only by the filing of a petition for review
in the United States Court of Appeals for the District of Columbia
within sixty days of publication of this action in the Federal
Register.
Administrative Designation and Regulatory Analysis
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) 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;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a significant
regulatory action under the terms of Executive Order l2866 and is,
therefore exempt from OMB review. This rule would only relieve states
of some regulatory requirements, not add costs or otherwise adversely
affect the economy.
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the Administrator certifies that this rule will not have
a significant economic impact on a substantial number of small entities
and, therefore, not subject to the requirement of a Regulatory Impact
Analysis. A small entity may include a small government
[[Page 1738]] entity or jurisdiction. A small government jurisdiction
is defined as ``governments of cities, counties, towns, townships,
villages, school districts, or special districts, with a population of
less than 50,000.'' This certification is based on the fact that the I/
M areas impacted by the rule do not meet the definition of a small
government jurisdiction, that is, ``governments of cities, counties,
towns, townships, villages, school districts, or special districts,
with a population of less than 50,000.''
List of Subjects in 40 CFR Part 51
Environmental protection, Administrative practice and procedure,
Air pollution control, Carbon monoxide, Intergovernmental relations,
Lead, Motor vehicle pollution, Nitrogen oxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur Oxides,
Volatile organic compounds.
Dated: December 23, 1994.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble part 51 of title 40 of the
Code of Federal Regulations is amended to read as follows:
PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS
l. The authority citation for part 51 is revised as follows:
Authority: 42 U.S. C. 740l(a)(2), 7475(e), 7502(a) and (b).
7503. 9601(a)(1) and 7602.
2. Section 51.372 is amended by adding new paragraphs (c), (d) and
(e) to read as follows:
Sec. 51.372 State implementation plan submissions.
* * * *
(c) Redesignation requests. Any nonattainment area that EPA
determines would otherwise qualify for redesignation from nonattainment
to attainment shall receive full approval of a State Implementation
Plan (SIP) submittal under sections 182(a)(2)(B) or l82(b)(4) if the
submittal contains the following elements:
(1) Legal authority to implement a basic I/M program (or enhanced
if the state chooses to opt up) as required by this subpart. The
legislative authority for an I/M program shall allow the adoption of
implementing regulations without requiring further legislation.
(2) A request to place the I/M plan (if no I/M program is currently
in place or if an I/M program has been terminated,) or the I/M upgrade
(if the existing I/M program is to continue without being upgraded)
into the contingency measures portion of the maintenance plan upon
redesignation.
(3) A contingency measure consisting of a commitment by the
Governor or the Governor's designee to adopt regulations to implement
the required I/M program in response to a specified triggering event.
Such contingency measures must be implemented on the trigger date,
which is a date determined by the State to be no later than the date
EPA notifies the state that it is in violation of the ozone or carbon
monoxide standard.
(4) A commitment that includes an enforceable schedule for adoption
and implementation of the I/M program, and appropriate milestones,
including the items in paragraphs (a)(l)(ii) through (a)(l)(vii) of
this section. In addition, the schedule shall include the date for
submission of a SIP meeting all of the requirements of this subpart,
excluding schedule requirements. Schedule milestones shall be listed in
months from the trigger date, and shall comply with the requirements of
paragraph (e) of this section. SIP submission shall occur no more than
l2 months after the trigger date as specified by the State.
(d) Basic areas continuing operation of I/M programs as part of
their maintenance plan without implemented upgrades shall be assumed to
be 80as effective as an implemented, upgraded version of the same I/M
program design, unless a state can demonstrate using operating
information that the I/M program is more effective than the 80 2.121996e-313vel.
(e) SIP submittals to correct violations. SIP submissions required
pursuant to a violation of the ambient ozone or CO standard (as
discussed in Sec. 51.372(c)) shall address all of the requirements of
this subpart. The SIP shall demonstrate that performance standards in
either Sec. 51.351 or Sec. 51.352 shall be met using an evaluation date
(rounded to the nearest January for carbon monoxide and July for
hydrocarbons) seven years after the trigger date. Emission standards
for vehicles subject to an IM240 test may be phased in during the
program but full standards must be in effect for at least one complete
test cycle before the end of the 5-year period. All other requirements
shall take effect within 24 months of the trigger date. The phase-in
allowances of Sec. 51.373(c) of this subpart shall not apply.
[FR Doc. 95-254 Filed 1-4-95; 8:45 am]
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