[Federal Register Volume 59, Number 197 (Thursday, October 13, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25387]


[[Page Unknown]]

[Federal Register: October 13, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MN32-2-6679; FRL-5077-8]

 

Approval and Promulgation of Implementation Plans; Minnesota

AGENCY: Environmental Protection Agency (USEPA).

ACTION: Final rule.

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SUMMARY: On November 10, 1992, the Minnesota Pollution Control Agency 
(MPCA) submitted a SIP revision which included two elements: A 
commitment from the Governor or his designee to the timely adoption and 
implementation of an I/M program meeting all requirements of the I/M 
regulation; and a schedule of implementation. On November 12, 1993, and 
December 15, 1993, the MPCA fulfilled its commitment by submitting 
proposed revisions to its State Implementation Plan (SIP) for carbon 
monoxide to USEPA for approval. The submittal requests approval of its 
basic inspection and maintenance (I/M) program which applies to the 
Twin Cities seven-county metropolitan area. The Twin Cities seven-
county metropolitan area, which includes Anoka, Carver, Dakota, 
Hennepin, Ramsey, Scott and Washington Counties, has been classified as 
moderate nonattainment for carbon monoxide. Therefore, section 187 of 
the Clean Air Act (CAA) requires the State to submit a basic I/M SIP. 
On August 5, 1994, USEPA proposed conditional approval of Minnesota's 
basic I/M SIP based on MPCA's commitment to adopt specific enforceable 
measures as outlined in the July 5, 1994, letter from Charles Williams, 
Commissioner MPCA, to Valdas Adamkus, Regional Administrator, USEPA. 
The notice of proposed rulemaking also outlined several USEPA comments 
and required MPCA to adequately respond to the comments before USEPA 
would proceed with conditional approval. In this action, the USEPA is 
taking final action to conditionally approve the State's basic I/M 
program submittal based upon the commitment from the State and 
responses to USEPA's comments.

EFFECTIVE DATE: This final rule is effective on November 14, 1994.

ADDRESSES: Copies of the SIP revision request, public comments and 
other materials relating to this rulemaking are available for 
inspection at the following address: (It is recommended that you 
telephone John Paskevicz at 312 886-6084, before visiting the Region 5 
office.) U.S. Environmental Protection Agency, Region 5, Air and 
Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604.
    A copy of this SIP revision request to the Ohio SIP is available 
for inspection at the Office of Air and Radiation (OAR), Docket and 
Information Center (Air Docket 6102), Room M1500, USEPA, 401 M Street, 
SW., Washington, DC 20460, (202) 260-7548.

FOR FURTHER INFORMATION CONTACT: John Paskevicz, Regulation Development 
Section, Air Enforcement Branch (AE-17J), U.S. Environmental Protection 
Agency, Region 5, Chicago, Illinois 60604, (312) 886-6084.
SUPPLEMENTARY INFORMATION:

I. Background

    Section 187(a)(4) of the CAA, as amended in 1990, requires States 
with areas designated moderate nonattainment for carbon monoxide (CO) 
to make changes to improve existing I/M programs or implement new ones. 
Section 182(a)(2)(B) requires USEPA to review, revise, update, and 
republish in the Federal Register guidance for State motor vehicle I/M 
programs. On November 5, 1992 (57 FR 52950), USEPA published a final 
rule establishing performance standards and other requirements for 
basic and enhanced I/M programs.
    The November 5, 1992, I/M Regulation required each State that must 
implement an I/M program to submit by November 15, 1992, a State 
Implementation Plan (SIP) revision including two elements: (1) A 
commitment from the Governor or his designee to the timely adoption and 
implementation of an I/M program meeting all requirements of the I/M 
regulation; and (2) a schedule of implementation. A memorandum dated 
December 11, 1992, from Phil Lorang, Director, Emission Planning and 
Strategies Division, outlines the elements that a State's schedule of 
implementation must include for acceptability. These elements include:

    1. Passage of enabling statutory or other legal authority;
    2. Proposal of draft regulations and promulgation of final 
regulations;
    3. Issuance of final specifications and procedures;
    4. Issuance of final request for Proposals (if applicable);
    5. Licensing or certification of stations and inspectors;
    6. The date mandatory testing will begin for each model year to be 
covered by the program;
    7. The date full-stringency cut-points will take effect; and
    8. All other relevant dates.

    Following publication of the I/M program final rule (57 FR 52950), 
the USEPA also made available to States a document entitled, Checklist 
for Completing the Inspection/Maintenance SIP (Checklist). The 
Checklist was developed to assist States in the development of I/M SIPs 
and outlines in detail the program elements the I/M SIP submittals must 
satisfy in order to be approved for incorporation into a State's 
federally approved SIP.

II. Summary of State Submittal

    In 1988 the Minnesota Pollution Control Agency (MPCA) was 
authorized and directed by the State legislature to adopt rules 
establishing an I/M program in the Twin Cities seven county 
metropolitan area. As required by Minnesota Statute section 116.62, the 
MPCA adopted Minnesota Rules parts 7023.1010 to 7023.1105, which 
established standards and criteria governing the testing and inspection 
of motor vehicles for CO and hydrocarbon emissions in the Twin Cities 
seven county metropolitan area. Vehicle testing began on July 1, 1991.
    Upon publication of the USEPA's final rule for I/M Programs (57 FR 
52950), the MPCA recognized the need to amend the rules for operation 
of the State's I/M program. The State submitted a committal I/M SIP on 
November 10, 1992. The submittal includes a commitment for the adoption 
and implementation of an I/M program meeting all requirements of the I/
M regulation and the CAA, a schedule of implementation which contained 
the elements described in Phil Lorang's December 11, 1992 memorandum, 
to meet the submittal date to USEPA of November 15, 1993.
    On November 12, 1993, the MPCA submitted the first of two parts of 
its SIP revision request for the Twin Cities seven country metropolitan 
area I/M program. The second part of the revision request, consisting 
of the public hearing notice, was submitted by MPCA on December 15, 
1993. The submittal requests approval of the Minnesota I/M program, 
which has been operating in the Twin Cities metropolitan area since 
July 1, 1991. The seven county metropolitan area includes Anoka, 
Carver, Dakota, Hennepin, Ramsey, Scott and Washington Counties, and 
has been designated moderate nonattainment for CO. This document was 
reviewed in detail in the August 5, 1994 (59 FR 39994), proposed rule.

III. USEPA Comments/MPCA Responses

    In a May 11, 1994, letter to MPCA, USEPA identified several 
deficiencies in the I/M SIP submittal and provided the State the 
opportunity to respond to the deficiencies. The USEPA notified the 
State that several of the deficiencies could only be remedied through 
amendments to the State's statute and/or administrative rules.
    In response to USEPA's comments on the deficiencies in the State's 
I/M submittal, the MPCA provided a July 5, 1994, letter from Charles 
Williams, Commissioner, MPCA, to Valdas V. Adamkus, Regional 
Administrator USEPA, which responds to USEPA comments and makes a 
commitment from the State to correct the deficiencies requiring 
amendments to the State's statute and/or administrative rules. The 
deficiencies requiring amendments to the State's I/M statute and/or 
administrative rules and MPCA's response to the deficiencies are 
outlined in the August 5, 1994, (50 FR 39994) notice of proposed 
rulemaking. This conditional approval is based in part on the State's 
July 5, 1994, commitment letter.
    The USEPA's August 5, 1994, notice of proposed rulemaking (59 FR 
3994) identified certain deficiencies in the I/M submittal and required 
MPCA to adequately address the USEPA comments before the end of the 30-
day comment period. The USEPA's comments on the State's basic I/M 
program deficiencies and MPCA's responses to the comments are presented 
below. The notice of proposed rulemaking stated that USEPA would 
proceed with final conditional approval if the MPCA adequately 
addressed the comments during the 30-day comment period. The notice 
also stated that USEPA would take final action to disapprove the basic 
I/M SIP submittal if MPCA failed to adequately address the 
deficiencies.
    Comment: Minnesota Rule 7023.1020 has been amended such that visual 
inspection of fuel inlet restrictors is no longer required. Therefore, 
the emission reductions obtained in the proposed program must be less 
than or equal to those obtained by the existing program. Since visual 
inspection for fuel inlet restrictors was previously required, there 
must be comparable improvement to the program if this element is to be 
removed. There is no evidence that the program has been strengthened. 
The State should either reinstate the fuel inlet restrictor requirement 
or make other improvements to the testing program so that the 
reductions are as good or better than under the existing program.
    MPCA Response: The existing I/M program being proposed as part of 
the SIP submittal does not contain a provision for a visual inspection 
of the fuel inlet restrictor. The MPCA has not taken credit in the 
Mobile 5a modeling demonstration for the visual inspection of the fuel 
inlet restrictor. Therefore, there is no weakening of the submitted 
program and the Mobile 5amodeling has demonstrated compliance with the 
performance standard without the visual inspection of the fuel inlet 
restrictor.
    Decision: Since the State has not taken credit for visual 
inspection of the fuel inlet restrictor and is able to demonstrate 
compliance with the performance standard, USEPA accepts the State's 
response to the Agency's comment.
    Comment: USEPA has identified two issues regarding the compliance 
rate claimed by the State in the submittal. First, the submittal 
provides conflicting estimates of the number of unregistered vehicles 
in the Twin Cities metropolitan area. The contractor estimates that 
22,000 vehicles in the area are registered without undergoing testing, 
while MPCA estimates that only 12,000 vehicles are registered without 
undergoing testing. The conflicting estimates undermine the reliability 
of the 97 percent compliance rate arrived at by the State. Secondly, 
the State uses a 96 percent compliance rate in the Mobile 5a modeling 
inputs, yet claims a 97 percent compliance rate in the submittal. USEPA 
can accept the 96 percent compliance rate without any further 
information or action on the State's part. If the State chooses to 
continue to claim the 97 percent compliance rate, it must supply USEPA 
with an estimate of the number of unregistered vehicles and a 
description of mechanisms the state will employ to identify and 
encourage registration of unregistered vehicles.
    MPCA Response: Minnesota accepts USEPA's recommendation that the 
State use the 96 percent compliance rate without providing any further 
information or action.
    Decision: USEPA will not require the State to provide any further 
data or action by the State.
    Comment: The USEPA is concerned that the $35.00 citation imposed on 
vehicle owners who fail to undergo testing and properly register their 
vehicles is not sufficiently high to deter non-compliance. The USEPA 
requests that MPCA provide further information on the maximum fine 
imposed on vehicle owners who fail to undergo testing.
    MPCA Response: Vehicle owners who do not comply with the 
requirements of the Program are not allowed to renew their vehicle 
registration. Vehicle owners who drive on expired tabs or improperly 
store a vehicle with expired tabs, are cited for an expired 
registration and assessed a fine. The average fine for an expired 
registration is $35.00 The actual amount of the fine will vary 
depending on the county jurisdiction. Vehicles with an expired 
registration are also subject to towing and impound fees, with initial 
fees averaging $75.00, plus additional daily storage fees ranging from 
$8.00 to $15.00. In addition, these fees are based on each occurrence 
of citation for registration expiration. Vehicles with an expired 
registration are subject to receive multiple citations and subsequent 
fines until the vehicle registration has been renewed.
    Decision: The USEPA accepts MPCA's response to the Agency's comment 
on citation penalties and will not require any further action from the 
State.
    Comment: The USEPA believes that Minnesota's lack of a defined 
penalty schedule for cases of serious violations of the State's 
contractual agreement significantly lessens the stringency of the 
State's enforcement efforts. In addition, the State has not provided 
any description of its mechanisms for permanent fee retainage from the 
contractor. The MPCA must provide USEPA with a schedule of typical 
retainage for serious violations of the contractual agreement.
    Response: In lieu of a specific penalty schedule, Minnesota uses a 
fee retainage to resolve all violations of our contractual agreement. 
Each month the contractor submits an invoice for accuracy, the State 
retains 10 percent of the invoice and pays the contractor the remaining 
90 percent. The 10 percent retainage is accumulated monthly and 
released to the contractor at the end of each quarter, provided the 
MPCA is satisfied with the contractor's performance and that no 
violation of the contract has occurred. If a violation of the contract 
has occurred, the specific dollar amount not returned to the contractor 
would be determined by the MPCA based on the seriousness of the 
violation.
    Minnesota believes that using retainage instead of a specific 
penalty schedule is a stronger contractual enforcement tool for several 
reasons. First, by using retainage, the MPCA has maximum flexibility to 
address contractual violations and is not limited only to those issues 
and penalty amounts which may be included in a penalty schedule. 
Second, the monthly retainage averages over $100,000 and meets the 
penalty requirement of $100 or 5 times the inspection fee as specified 
in Section 51.364. Lastly, the use of a retainage provides for a more 
suitable working relationship with the contractor. Because a portion of 
the contractor's profit is withheld monthly through retainage, the 
contractor is allowed to focus on contract compliance (not enforcement) 
to ensure that the full retainage is released quarterly. MPCA 
recommends that the existing retainage process be accepted as 
originally proposed in the SIP submittal.
    Decision: The USEPA accepts MPCA's response to the Agency's comment 
on citation penalties and will not require any further action from the 
State.
    Comment: The submittal indicates that quality assurance officers do 
not have direct authority to impose disciplinary action against 
inspectors employed by the contractor. MPCA quality assurance officers 
may only recommend disciplinary action or discharge of an employee. 
MPCA must commit to requiring the contractor to act upon the State's 
recommendation for disciplinary action.
    Response: The MPCA quality assurance auditors perform quality 
assurance audits, identify any improper performance by a lane 
inspector, and initiate enforcement action against the lane inspector. 
The procedure to initiate enforcement action and impose discipline on a 
lane inspector begins with an immediate reporting to the station 
manager. The station manager acts accordingly. The quality assurance 
auditor then recommends disciplinary action to the MPCA Program 
Manager. The Program Manager and the contractor's Director of 
Operations then meet to discuss the violation, agree on the severity of 
the violation and mutually impose discipline. Types of discipline 
imposed to date include re-training, verbal reprimand, and dismissal of 
the lane inspector.
    Decision: The USEPA accepts MPCA's response to the Agency's comment 
on citation penalties and will not require any further action from the 
State.

V. Rulemaking Action

    Based upon the August 5, 1994 proposed rule and MPCA's responses to 
USEPA's comments, the USEPA is conditionally approving the Minnesota 
basic I/M SIP revision request for CO. The USEPA's conditional approval 
of Minnesota's basic I/M program is also based upon MPCA's commitment 
to adopt specific enforceable measures as outlined in the July 5, 1994, 
letter from CharlesWilliams, Commissioner MPCA, to Valdas Adamkus, 
Regional Administrator, USEPA. These commitments include a request to 
the State legilature to consider changes to the vehicle inspection 
program during the 1995 session, and to initiate a public hearing 
process to make changes in the administrative rule for the program to 
comply with the requirements of the Federal rules. The specific areas 
needing statutory and/or administrative rule changes include: the 
requirement that only certified automotive repair technicians perform 
repairs in order for a vehicle to obtain a waiver; the requirement that 
the State's minimum repair cost limit be actually spent befor a vehicle 
is eligible to receive a waiver; the requirement that vehicles with 
switched engines be tested using emission standards based on the model 
year of the chassis, unless the engine is newer in age than the 
chassis; and the requirement to change the re-inspection procedure to 
include a determination that an emission control device is the correct 
type for the certified configuration of the vehicle inspected. If 
Minnesota fails to implement the necessary changes within the one-year 
period following the date of this conditional approval, the conditional 
approval will convert to a disapproval of the SIP. Disapproval of the 
SIP will trigger the 18-month sanctions period of section 179 of the 
CAA. In addition, USEPA can elect to exercise its discretionary 
authority to impose sanctions prior to the end of the 18-month period. 
Finally, disapproval will trigger a 24-month Federal Implementation 
Plan (FIP) clock under section 110(c) of the CAA.

Miscellaneous

Applicability to Future SIP Decisions

    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. USEPA shall consider each request for revision to the SIP in light 
of specific technical, economic, and environmental factors in relation 
to relevant statutory and regulatory requirements.

Executive Order 12866

    This action has been classified as a Table 2 action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993, 
memorandum from Michael Shapiro, Acting Assistant Administrator for Air 
and Radiation. The OMB has exempted this regulatory action from 
Executive Order 12866 review.

Regulatory Flexibility

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. (5 U.S.C. 603 and 
604.)Alternatively, USEPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities includesmall businesses, small not-for-profit enterprises, and 
government entities with jurisdiction over populations of less than 
50,000.
    This approval does not create any new requirements. Therefore, I 
certify that this action does not have a significant impact on any 
small entities affected. Moreover, due to the nature of the Federal-
State relationship under the CAA, preparation of the regulatory 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of the State action. The CAA forbids USEPA to base its 
Final Conditional Approval of Minnesota's I/M program on such grounds. 
Union Electric Co. v. U.SE.P.A., 427 U.S. 246, 256-66 (1976).

Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by December 12, 1994. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorportation by reference, Intergovernmental relations, Reporting and 
recordkeeping requirements.

    Dated: September 15, 1994.
Robert Springer,
Acting Regional Administrator.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

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

    Authority: 42 U.S.C. 7401-7671q.

Subpart Y--Minnesota

    2. Section 52.1219 is added to read as follows:


Sec. 52.1219  Identification of plan--Conditional approval.

    (a) On November 12, 1993, the Minnesota Pollution Control Agency 
submitted a revision request to Minnesota's carbon monoxide SIP for 
approval of the State's basic inspection and maintenance (I/M) program. 
The basic I/M program requirements apply to sources in the State's 
moderate nonattainment areas for carbon monoxide and includes the 
following counties: Anoka, Carver, Dakota, Hennepin, Ramsey, Scott, and 
Washington Counties. The USEPA is conditionally approving Minnesota's 
basic I/M program provided that the State adopt specific enforceable 
measures as outlined in its July 5, 1994 letter from Charles W. 
Williams, Commissioner, Minnesota Air Pollution Control Agency.
    (i) Incorporation by reference.
    (A) Minnesota Rules relating to Motor Vehicle Emissions parts 
7023.1010 to 7023.1105, effective January 8, 1994.
    (ii) Additional material.
    (A) Letter from the State of Minnesota to USEPA dated July 5, 1994.
[FR Doc. 94-25387 Filed 10-12-94; 8:45 am]
BILLING CODE 6560-50-F