Inspection/Maintenance Program RequirementsProvisions for Redesignation

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