[Federal Register: June 28, 1994]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 51
[FRL-5001-3]
Inspection/Maintenance Program Requirements--Provisions for
Redesignation
AGENCY: Environmental Protection Agency.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The proposed revisions include additions and modifications to
subpart S, part 51, title 40, Code of Federal Regulations, regarding
State Implementation Plan submissions for purposes of redesignation.
The proposed 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 proposes to allow such areas to defer
adoption and implementation of some of the otherwise applicable
requirements established in the original promulgation of the
Inspection/Maintenance rule. This proposed rule applies only to areas
that by virtue or their air quality classification are required to
implement a basic I/M program and that submit, and otherwise qualify
for, a redesignation request.
DATES: Written comments on this proposal must be received no later than
July 28, 1994.
The Agency will hold a public hearing on this proposed amendment if
one is requested on or before July 13, 1994.
If a public hearing is held, comments must be received 30 days
after the hearing.
ADDRESSES: Interested parties may submit written comments (in duplicate
if possible) to Public Docket No. A-93-21. It is requested that a
duplicate copy be submitted to Eugene J. Tierney at the address in the
FOR FURTHER INFORMATION CONTACT section below. The docket is located at
the Air Docket, Room M-1500 (LE-131), Waterside Mall SW., Washington,
DC 20460. The docket may be inspected between 8:30 a.m. and 12 noon and
between 1:30 p.m. until 3:30 p.m. on weekdays. A reasonable fee may be
charged for copying 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 107(d)(3)(E) of the Clean Air Act,
as amended in 1990 (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
a least a 10 year period following EPA's 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.
The purpose of this document is to propose amendments to the rules
in 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 basic areas that qualify for and will ultimately
obtain approval by EPA of redesignation requests to attainment. This
notice proposes to add 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.\1\ 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
1977 amendments to the Act or a basic program upgraded to meet the
requirements of EPA's I/M regulations. 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.
---------------------------------------------------------------------------
\1\For EPA policy and procedures on being redesignated from
nonattainment to attainment for ozone and carbon monoxide see
memoranda dated: June 1, 1992; September 4, 1992; October 28, 1992;
July 9, 1992; July 22, 1992; and September 17, 1993, which are
included in the docket.
---------------------------------------------------------------------------
In a May 6, 1994 decision, the D.C. Court of Appeals held that EPA
did not have authority to construe section 110(k)(4) to authorize
conditional approval of an I/M committal SIP that contains no specific
enforceable measures, but a promise to adopt specific enforceable
measures within a year. Merely, section 110(k)(4) states that: The
Administrator may approve a plan revision based on a commitment of the
State to adopt specific enforceable measures by a date certain, but not
later than one year after the date of approval of the plan revision.
Any such conditional approval shall be treated as a disapproval if the
State fails to comply with such commitment.
This decision was based on the premise that the statute required
all areas required to implement an I/M program to have adopted
regulations.
The authority for this rulemaking is not based on section
110(k)(4), but on sections 182(a)(2)(B)(i) and 182(b)(4), which applies
only to areas required to submit basic I/M programs.
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. Basic areas
have a nominal requirement only for a schedule for implementation
pursuant to section 172(b)(11)(B) of the 1977 Amendments and sections
182(a)(2)(B)(i) and 182(b)(4) of the 1990 Amendments, plus any other
requirements established by EPA in guidance. The statutory language of
section 182(a)(2)(B)(i) and section 182(b)(4) provides a degree of
flexibility compared with the statutory language in section 182(c)(3),
which requires enhanced I/M areas to submit a SIP revision ``to provide
for an enhanced program''.
Although for most purposes EPA will continue to interpret
``provisions to provide for'' a basic I/M program to require full
adoption and expeditious implementation of such a program, EPA believes
based on this flexible language, that it is appropriate to revise the
SIP revisions requirements applicable to basic I/M areas that
ultimately will qualify for redesignation. For states 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. It would be a wasteful exercise to force the
state to go through full adoption of regulations only to have these
regulations converted to a contingency measure the moment the
redesignation is approved. EPA believes that such states need not
submit an actual I/M program as long as there are ``provisions
necessary to provide'' for an I/M program as required by statute. For
areas that qualify for redesignation to attainment and ultimately are
redesignated, EPA is proposing to amend Subpart S to interpret that
statutory phrase to allow such areas to be redesignated if they
otherwise qualify for redesignation and submit a SIP that contains the
following four elements: (1) Legal authority for a basic I/M program
(or an enhanced program 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 applicable) in the contingency measures portion of
the maintenance plan upon redesignation as described in the fourth
element below; (3) a contingency measure consisting of a commitment by
the Governor or the Governor's designee to adopt regulations to
implement the I/M program in response to a 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.
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 states could discontinue
implementation of this program as long as it was converted to a
contingency measure.
With these amendments the determination of whether a state fulfills
the SIP requirements will depend, for the purposes of redesignation
approval only, on whether the state meets the four requirements listed
above. EPA believes that this flexibility is built into the basic I/M
requirement and should apply only for the limited purpose of
considering a redesignation request to attainment.
It should be understood, however, that, pursuant to section
175A(c), while EPA considers the redesignation request, the state
continues to be required to meet all the requirements of this subpart.
This would include 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 or the I/M rule. If the state does not comply with these
requirements it could be subject to sanctions pursuant to section 179.
Because the possibility for sanctions exists, states which do not have
a solid basis for approval of the redesignation request and maintenance
plan should 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 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.
There are four possible scenarios under which an area might present
a redesignation request.
1. Areas Without Operating I/M Programs--Section 182(b)(4) of the
Act expanded the requirement for submission of a schedule for a basic
I/M program to all moderate ozone nonattainment areas. As a result,
about 25 new cities were affected by the I/M requirement. Since passage
of the Act however, some of these areas have experienced no violation
of the standard and are in a position to submit a request to
redesignate. Some of these areas may be able to demonstrate maintenance
of the standards without implementation of an I/M program.
The proposed changes to Subpart S would allow a state to avoid
having to prepare a detailed I/M plan and adopt regulations at this
time. EPA would require a detailed implementation plan and regulations
would be required by EPA to be submitted and incorporated into the
previous SIP within 12 months and implemented within 24 months from the
triggering event as specified by the State. Section 175A(d) requires
that each maintenance 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 an
area to attainment. Given the time needed for states to submit and
incorporate these measures into the previous SIP and then implement
them, EPA believes that these 12 and 24 month time periods are the
minimum amount of time in which states can ``promptly correct'' the
violation which triggered the contingency measure. These time periods
are based on EPA's interpretation of a reasonable amount of time to
allow the State to submit and implement a new SIP after the triggering
event.
2. Basic areas With Operating I/M Programs--Continued Operation
Without Upgrades. Section 182(a)(2)(B)(ii) of the Act requires EPA to
``review, revise, update, and republish'' I/M guidance. EPA did so on
November 5, 1992 (as reflected in subpart S) and established new
requirements for basic and enhanced I/M programs. These regulations
require improved administration of the I/M program in a variety of ways
and to meet the performance standard established for basic programs.
Some of these areas may be in a position to redesignate to attainment
based on a maintenance plan which does not implement these upgrades.
EPA believes that its broad authority under section 182(a)(2)(B)(ii) of
the Act to revise the guidance for basic I/M areas allows it to
structure subpart S such that a redesignation request could be approved
for such areas that continue to operate I/M programs provided that the
state has the legal authority and regulations necessary to make the
upgrade, and submits as a contingency measure a commitment to implement
the upgrade in the event of a violation, according to an enforceable
schedule, including milestones. The maintenance plan could not,
however, claim the full credit provided by the MOBILE model unless the
upgrade was implemented. The purpose of the upgrade is to ensure that
the emission reduction benefits projected by the MOBILE model are in
fact achieved in practice. The MOBILE model is used to determine
emission level targets and whether the local I/M program design meets
the performance standard as described in 40 CFR 51.351 or 51.352 of
subpart S. Areas which continue operation of I/M programs as part of
their maintenance plan without an implemented upgrade shall be assumed
to be 80% as 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 alone is more effective than the
implemented upgraded version. The 80% benefit assumption is based on a
20% discount for the lack of administrative requirements, especially
quality assurance and quality control, not modeling factors. The model
does not include inputs for quality control and quality assurance.
3. Areas With Operating I/M Programs--Continuing Operation With
Upgrades. If an area chooses to upgrade the I/M program to meet the
requirements of subpart S rather than to take advantage of the
amendment proposed today, then a full SIP submission as specified in
Sec. 51.372 of subpart S shall be made that addresses those
requirements. In this case, a state can claim full MOBILE model credit
for the implemented upgrade in the maintenance plan as of its effective
date.
4. Areas With Operating I/M Programs--Discontinuing Operation.
Areas which receive approval of the redesignation request may cease
operation of the I/M program after this approval if and only if the
following requirements are met. First, a modeling demonstration must be
included in the maintenance plan which shows the standards can be
maintained without the program, and second, the I/M program must be
transferred by SIP revision to the contingency measures portion of the
maintenance plan and implemented as a contingency measure in the event
of a triggering condition. Emission reduction credit cannot be claimed
in the maintenance plan if an I/M program is to cease operation.
This proposal does not affect redesignation requests submitted for
serious or worse ozone or carbon monoxide areas, moderate CO areas
above 12.7 ppm, and for areas claiming full maintenance plan credits
for an
I/M program without supporting evidence of emission reduction credits.
Those areas must meet all the requirements of subpart S. This is
because section 182(c)(3) of the Act does not provide the flexibility
granted under section 182(b)(4) and explicitly requires areas subject
to the enhanced I/M requirement to submit a full I/M program including
regulations and implementation requirements.
Public Participation
EPA desires full public participation in arriving at final
decisions in this rulemaking action. EPA solicits comments on all
aspects of today's proposal from all interested parties. Wherever
applicable, full supporting data and detailed analysis should also be
submitted to allow EPA to make maximum use of the comments. All
comments should be directed to the Air Docket, Docket No. A-93-21.
Paperwork Reduction Act
Today's rule places no information collection or recordkeeping
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.
Administrative Designation and Regulatory Analysis
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 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''. It has been determined that this rule
is not a significant regulatory action under the terms of Executive
Order 12866 and is therefore not subject to OMB review. This rule would
only relieve states of some regulatory requirements, not add costs or
otherwise adversely affect the economy.
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: June 10, 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 proposed to be amended as follows:
PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS
1. The authority citation for part 51 continues to read as follows:
Authority: U.S.C. 7401(a)(2), 7475(e), 7502 (a) and (b), 7503,
7601(a)(1) and 7620.
2. Section 51.372 is proposed to be amended by adding 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 may receive full approval of a State Implementation Plan
(SIP) submittal under sections 182(a)(2)(B) or 182(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)(1)(ii) through (a)(1)(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
12 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 80% as 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% level.
(e) SIP Submittals to Correct Violations. SIP submissions required
pursuant to a violation of the ambient ozone or CO standard (as
discussed in paragraph (c) of this section) 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) shall not apply.
[FR Doc. 94-15307 Filed 6-27-94; 8:45 am]
BILLING CODE 6560-50-M