[Federal Register Volume 59, Number 123 (Tuesday, June 28, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15307]


[Federal Register: June 28, 1994]


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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.

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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.
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    \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.
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    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]
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