[Federal Register Volume 60, Number 8 (Thursday, January 12, 1995)]
[Rules and Regulations]
[Pages 2881-2885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-737]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WI42-01-6623; FRL-5087-8]
Approval and Promulgation of Air Quality Implementation Plans;
Wisconsin; Revision to the State Implementation Plan Vehicle Inspection
and Maintenance Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: In this action, the EPA is taking action to approve portions
and [[Page 2882]] conditionally approve other portions of the Wisconsin
State Implementation Plan (SIP) for attainment of the National Ambient
Air Quality Standards for ozone. On November 15, 1993, Wisconsin
submitted a SIP revision request to the EPA to satisfy the requirements
of section 182(a)(2) of the Clean Air Act (Act), and the Federal motor
vehicle inspection and maintenance (I/M) rule at 40 CFR part 51,
subpart S. This revision establishes and requires the implementation of
an enhanced I/M program in the Milwaukee-Racine, and the Sheboygan
ozone nonattainment areas. On July 14, 1994, the EPA published a Notice
of Proposed Rulemaking (NPRM) for the State of Wisconsin. The NPRM
proposed approval of portions of the Wisconsin I/M SIP and conditional
approval of other portions on the condition that the State submit
additional materials to the EPA during the public comment period on the
EPA's proposed rulemaking. On July 28, 1994, the State of Wisconsin
supplied the EPA with a supplementary SIP submittal. The EPA received
no comments on the NPRM. Therefore the EPA is publishing this final
action.
EFFECTIVE DATE: This rule will become effective on February 13, 1995.
ADDRESSES: Copies of the State's submittals and the EPA's technical
support document (TSD) are available for public review at the U.S.
Environmental Protection Agency, Region 5, Air and Radiation Division,
Air Toxics and Radiation Branch, Regulation Development Section, 77
West Jackson Boulevard, Chicago, Illinois, 60604. Interested persons
wanting to examine these documents should make an appointment at least
24 hours before the visiting day.
FOR FURTHER INFORMATION CONTACT: John M. Mooney, (312) 886-6043.
SUPPLEMENTARY INFORMATION:
I. Introduction
The CAA requires States to make changes to improve existing I/M
programs or implement new ones. Section 182 requires any ozone
nonattainment area, which has been classified as ``marginal'' (pursuant
to section 181(a) of the CAA) or worse, with an existing I/M program
that was part of a SIP, or any area that was required by the 1977
Amendments to the CAA to have an I/M program, to immediately submit a
SIP revision to bring the program up to the level required in past EPA
guidance or to what had been committed to previously in the SIP,
whichever is more stringent. In addition, all ozone nonattainment areas
classified as moderate or worse must implement a ``basic'' or an
``enhanced'' I/M program depending upon their classifications,
regardless of previous requirements.
In addition, Congress directed the EPA in section 182(a)(2)(B) to
publish updated guidance for State I/M programs, taking into
consideration findings of the Administrator's audits and investigations
of these programs. The States were to incorporate this guidance into
the SIP for all areas required by the CAA to have an I/M program.
II. Background
The State of Wisconsin currently contains 2 ozone nonattainment
areas that are required to implement I/M programs in accordance with
the Act. The Milwaukee-Racine ozone nonattainment area is classified as
severe-17 and contains the following 6 counties: Kenosha, Racine,
Milwaukee, Ozaukee, Waukesha, and Washington Counties. The Sheboygan
ozone nonattainment area is classified as moderate and contains 1
county: Sheboygan County. These designations for ozone were published
in the Federal Register at 56 FR 56694 (November 6, 1991) and 57 FR
56762 (November 30, 1992), and codified at 40 CFR 81.300-81.437.
On November 15, 1993, the Wisconsin Department of Natural Resources
(WDNR) submitted a SIP revision to the EPA that provided for an I/M
program in the Milwaukee-Racine and Sheboygan nonattainment areas.
Under the requirements of the EPA completeness review procedures, 40
CFR part 51, Appendix V, and the requirements of section 110(k) of the
CAA, the submittal was deemed complete by the EPA on January 4, 1994.
In its original review of the State's submittal, the EPA found
several areas that did not meet the requirements of the I/M rule. Since
the EPA's July 14, 1994, Notice of Proposed Rulemaking, the State has
submitted additional materials to meet many of these requirements and
provided commitments to adopt and submit additional materials, as
necessary, to receive conditional approval on other requirements. These
areas are summarized below.
On July 14, 1994, the EPA published a notice proposing approval for
portions of the State's submittal, and proposing conditional approval
or disapproval on the other sections of the original submittal, despite
several deficiencies in the original submittal. This proposed action
was made contingent on the State submitting the missing materials 2
weeks prior to the close of the public comment period.
III. State's Supplemental Submittal
On July 28, 1994, the WDNR submitted supplementary materials to the
EPA related to the I/M program in the Milwaukee-Racine and Sheboygan
areas in order to remedy the deficiencies in the State's original
submittal.
IV. The EPA's Analysis of the State's Supplemental Submittal
The following summary of the State's supplemental submittal is
limited to the sections of the State's original submittal that were
identified as deficient in the EPA's NPRM. For a discussion of the rest
of the State's submittal, see the July 15, 1994 NPRM (59 FR 36123).
A. Enhanced and Basic I/M Performance Standard
While the original submittal addressed some of the requirements of
40 CFR 51.351, the State had not formally submitted the required
modeling demonstration. In its supplementary submittal, the State
formally submitted a modeling demonstration using the EPA computer
model MOBILE5a, which showed that the enhanced performance standard is
met in the Milwaukee-Racine and the Sheboygan areas. This modeling
demonstration included an estimate of the impact that exempt vehicles
will have on emissions reductions achieved by the I/M program. The
program still meets the enhanced I/M performance standard after
accounting for exempt vehicles. As a result, this section is
approvable.
B. Network Type and Program Evaluation
The original submittal did not fully satisfy 40 CFR section 51.353,
because it did not include requirements for schedules and methodologies
for program evaluation. The State's supplemental submittal institutes a
continuous ongoing evaluation program consistent with the Federal I/M
rule. The results of the evaluation program will be reported to the EPA
on a biennial basis. The supplemental submittal together with the
original submittal satisfies 40 CFR 51.353.
C. Adequate Tools and Resources
The original submittal did not fully satisfy 40 CFR 51.354, because
it did not include a demonstration that sufficient funds, equipment and
personnel are available to meet the program operation requirements of
the I/M rule. The State's supplemental submittal included a
[[Page 2883]] narrative describing the budget process, staffing
support, and equipment needed to implement the program. This
description together with the original submittal satisfies 40 CFR
51.354.
D. Test Frequency and Convenience
The original submittal did not fully satisfy 40 CFR 51.355 due to
the fact that Wisconsin's adopted legislation had not yet been formally
submitted to the EPA. In its supplemental submittal WDNR officially
submitted its 1993 Wisconsin Act 288, enacted on April 13, 1994, which
provides the necessary authority to enforce the test frequency
requirements of the program.
E. Vehicle Coverage
The original submittal did not fully satisfy 40 CFR 51.356 for
several reasons: (1) The State had not submitted its final, signed
contract containing detailed procedures for identifying subject
vehicles; (2) the submittal did not contain estimates of registered and
unregistered vehicles in the area; (3) the State had not yet finished
final modifications on its TRANS 131 rule to establish requirements for
the testing of fleets; and (4) the State had not yet submitted final
performance standard modeling to account for vehicles that are exempt
from program requirements. The State's supplemental submittal contains
final performance standard modeling runs that demonstrate the impact of
exemptions on the program. Estimates of registered and unregistered
vehicles will be contained in the final, signed I/M contract. In its
supplemental submittal, the State included a commitment to adopt and
submit the final I/M contract and final rule revisions to TRANS 131
within 1 year of the EPA's conditional approval.
F. Test Procedures and Standards
The original submittal did not fully satisfy 40 CFR 51.357, because
the State had not submitted its final, signed contract containing
detailed test procedures for the I/M program. In addition, the State is
in the process of amending its NR 485 rule to establish specific
program cutpoints. In its supplemental submittal, the State included a
commitment to adopt and submit the final I/M contract and final rule
revisions to NR 485 within 1 year of the EPA's conditional approval.
G. Test Equipment
The original submittal did not fully satisfy 40 CFR 51.358, because
the State had not submitted its final, signed contract detailing
specifications for program test equipment. In its supplemental
submittal, the State commits to submit its final, signed contract
addressing these requirements to the EPA within 1 year of the EPA's
final conditional approval. General provisions for test equipment
specifications are contained in the State's Request for Proposal (RFP).
H. Quality Control
The original submittal did not fully satisfy 40 CFR 51.359, because
the State had not submitted its final, signed contract detailing its
quality control procedures. In its supplemental submittal, the State
commits to submit its final, signed contract addressing these
requirements to the EPA within 1 year of the EPA's final conditional
approval.
I. Waivers and Compliance via Diagnostic Inspection
The original submittal did not fully satisfy 40 CFR 51.360, because
the State had not submitted its final, signed contract detailing
procedures for the granting of waivers, including cost limits,
tampering, warranty related repairs, quality control and
administration. The State also failed to include a description of
corrective actions to be taken if the waiver rate exceeds 3 percent. In
addition, the State had not completed changes to its TRANS 131 rule to
reflect changes that had been made in the Wisconsin Statutes regarding
the issuance of waivers.
In its supplemental submittal, the State commits to submit its
final, signed contract and its amended TRANS 131 rule addressing these
requirements to the EPA within 1 year of the EPA's final conditional
approval. The State has included a waiver rate of 3 percent in all
subject areas and has used this waiver rate in its modeling
demonstration. The State has committed to this waiver rate and has
committed to take specific corrective action if this rate is not
achieved. The proper criteria, procedures, quality assurance and
administration regarding the issuance of waivers will be ensured by the
State and managing contractor and are contained in general detail in
the SIP narrative and RFP and will be more fully developed in the final
contract.
J. Motorist Compliance Enforcement
The original submittal did not fully satisfy 40 CFR 51.361, because
it failed to include a detailed description of the penalty schedule for
noncompliance and a formal commitment to a 96 percent compliance rate.
In its supplemental submittal, the State commits to submit revisions to
its TRANS 131 rule to establish a more thorough penalty schedule within
1 year of the EPA's final conditional approval. The State has chosen to
use registration denial as its primary enforcement mechanism in both
basic and enhanced I/M areas. Motorists will be denied vehicle
registration unless the vehicle has complied with the I/M program
requirements. Penalties for failure to register and failure to have
vehicles tested are contained in the Wisconsin Statutes, sections 341
and 110, respectively. The legal authority to implement and enforce the
program is included in the Wisconsin statutes and regulations contained
and cited in the SIP. In addition, the State has committed to a
compliance rate of 96 percent and has used this compliance rate in its
modeling demonstration.
K. Motorist Compliance Enforcement Program Oversight
The original submittal did not fully satisfy 40 CFR 51.363, because
the State had not submitted its final, signed contract detailing
procedures for quality control of its enforcement program and the
establishment of an information management system. In its supplementary
submittal, the State commits to submit its final, signed contract
addressing these requirements to the EPA within 1 year of the EPA's
final conditional approval.
L. Enforcement Against Contractors, Stations, and Inspectors
The original submittal did not fully satisfy 40 CFR 51.364, because
the State had not submitted its final, signed contract detailing
specific penalty schedules for stations, contractors, and inspectors.
In its supplementary submittal, the State commits to submit its final,
signed contract addressing these requirements to the EPA within 1 year
of the EPA's final conditional approval. The Wisconsin SIP includes the
legal authority for establishing and imposing penalties. Contractual
enforcement mechanisms will be established by the final, signed
contract.
M. Data Collection
The original submittal did not fully satisfy 40 CFR 51.365, because
it did not include a detailed description of specific data to be
collected on individual tests and data related to quality control
checks. In its supplemental submittal, the State commits to submit its
final, signed contract addressing these requirements to the EPA within
1 year of the EPA's final conditional approval. [[Page 2884]]
N. Data Analysis and Reporting
The original submittal did not fully satisfy 40 CFR 51.366, because
the State had not submitted its final, signed contract detailing
procedures for the analysis and reporting of data for the testing
program, quality assurance program, quality control program, and the
enforcement program. In addition, the State had not committed to
submitting annual and biennial reports to the EPA in accordance with
the I/M rule. In its supplemental submittal, the State commits to
submit its final, signed contract addressing these requirements to the
EPA within 1 year of the EPA's final conditional approval. The State
has submitted commitments to submit annual and biennial reports to the
EPA, as well as descriptions of the methodologies and procedures used
to develop these reports.
O. Inspector Training and Licensing or Certification
The original submittal did not fully satisfy 40 CFR 51.367, because
the State had not submitted its final, signed contract detailing its
training and licensing program. In its supplemental submittal, the
State has committed to submit its final, signed contract addressing
these requirements to the EPA within 1 year of the EPA's final
conditional approval.
P. Public Information and Consumer Protection
The original submittal did not fully satisfy 40 CFR 51.368, because
the State had not submitted its final, signed contract detailing its
public information and consumer protection program. In its supplemental
submittal, the State has committed to submit its final, signed contract
addressing these requirements to the EPA within 1 year of the EPA's
final conditional approval.
Q. Improving Repair Effectiveness
The original submittal did not fully satisfy 40 CFR 51.369 because
the State had not submitted its final, signed contract detailing
specific procedures for the implementation of a technical assistance
program and a repair facility monitoring program. In its supplemental
submittal, the State commits to submit its final, signed contract
addressing these requirements to the EPA within 1 year of the EPA's
final conditional approval. The contract will include a description of
the technical assistance, performance monitoring, and repair technician
training programs to be implemented. The State's RFP contains provision
for a repair technician hotline that will be available for repair
technicians.
R. Compliance With Recall Notices
The State's original submittal did not fully satisfy 40 CFR 51.370
because the State had not completed revisions to its TRANS 131 rule to
establish procedures for its recall compliance program. In its
supplemental submittal, the State commits to submit its amended rule
addressing these requirements to the EPA within 1 year of the EPA's
final conditional approval. The SIP also commits to comply with
additional EPA guidance when available.
S. On-road Testing
The original submittal did not fully satisfy 40 CFR 51.371, because
it did not include a detailed description of the program including test
limits and criteria, resource allocations, and methods of collecting,
analyzing and reporting the results of the testing. These requirements
will be addressed by the State's final I/M contract, as well as
amendments to the State's TRANS 131 rule. In its supplemental
submittal, the State commits to submit its final, signed contract and
its final, amended TRANS 131 rule addressing these requirements to the
EPA within 1 year of the EPA's final conditional approval. The legal
authority for this program is contained in the Wisconsin legislation.
T. Concluding Statement
Wisconsin's original submittal along with the supplemental
submittal of its I/M SIP revision represent an acceptable approach to
the I/M requirements and meet all the criteria required for approval
and conditional approval.
A more detailed analysis of the State's supplemental submittal and
how it meets Federal requirements is contained in the EPA's Technical
Support Document (TSD), dated September 2, 1994, which is available at
the Region 5 Office, listed above.
V. Response to Comments
On July 14, 1994 (59 FR 35883), the EPA published an NPRM for the
State of Wisconsin. The NPRM proposed approval on portions of the
State's submittal, and conditional approval or disapproval on other
portions of the State's submittal depending upon the materials
submitted by the State 2 weeks prior to close of the comment period. On
July 28, 1994, the State of Wisconsin submitted these materials. No
adverse public comments were received on the NPRM.
Final Action
By this action, the EPA is approving portions and conditionally
approving other portions of the State's submittal. The EPA has reviewed
the State submittal against the statutory requirements and for
consistency with the EPA regulations and finds it to be acceptable. The
rationale for the EPA's action is explained in the NPRM and will not be
restated here.
The EPA believes conditional approval is appropriate in this case
because the State has developed final, fully adopted rules for the
enhanced I/M program and needs only to amend these rules to address a
number of enhanced I/M program requirements. In addition, the State has
developed a final RFP for the program and needs only to sign the final
contract for program operation in order to establish final practices
and procedures for program operation. The State has committed to
finalize and submit the relevant rule amendments and final contract no
later than 1 year after the EPA's final conditional approval.
As a result of this conditional approval on the above portions of
the State's SIP, the State must meet its commitments to adopt and
submit the final rule amendments and final, signed contract to the EPA
within one year of the conditional approval. Once the EPA has
conditionally approved this committal, if the State fails to adopt or
submit the required rules to the EPA, final approval will become a
disapproval. The EPA will notify the State by letter to this effect.
Once the SIP has been disapproved, this commitment will no longer be a
part of the approved nonattainment area SIP. The EPA subsequently will
publish a notice to this effect in the notice section of the Federal
Register indicating that the commitment has been disapproved and
removed from the SIP. If the State adopts and submits the final rule
amendments to the EPA within the applicable time frame, the
conditionally approved commitment will remain part of the SIP until the
EPA takes final action approving or disapproving the new submittal. If
the EPA approves the subsequent submittal, those newly approved rules
will become a part of the SIP.
If the conditional approval portions are converted to a
disapproval, the sanctions clock under section 179(a) will begin. This
clock will begin on the effective date of the final disapproval or at
the time the EPA notifies the State by letter that a conditional
approval has been converted to a disapproval. If the State does not
correct the deficiency and the EPA does not approve the rule on which
the disapproval was based within 18 months of the disapproval, the EPA
must impose one of the sanctions under section 179(b)--highway funding
restrictions or the offset sanction. In [[Page 2885]] addition, the
final disapproval starts the 24 month clock for the imposition of a
section 110(c) Federal Implementation Plan. Finally, under section
110(m) the EPA has discretionary authority to impose sanctions at any
time after a final disapproval.
Nothing in this action should be construed as permitting or
establishing a precedent for any future request for a revision to any
SIP. Each request for a revision to a SIP shall be considered in light
of specific technical, economical, and environmental factors and in
relation to relevant statutory and regulatory requirements.
As previously noted, the EPA received no adverse public comment on
the proposed action. As a direct result, the Regional Administrator has
reclassified this action from Table 1 to Table 3 under the processing
procedures published in the Federal Register on January 19, 1989 (54 FR
2214), and revisions to these procedures issued on October 4, 1993, in
an EPA memorandum entitled ``Changes to State Implementation Plan (SIP)
Tables.'' The Office of Management and Budget has exempted this action
from Executive Order 12866 review.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA
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, the EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the CAA
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the Federal SIP
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the Federal-State relationship under the Act,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of State action. The
Act forbids the EPA to base its actions concerning SIPs on such grounds
(Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Nitrogen dioxide, Reporting and recordkeeping
requirements, Volatile organic compounds.
Dated: September 14, 1994.
Michelle D. Jordan,
Acting Regional Administrator.
40 CFR part 52 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 YY--Wisconsin
2. Section 52.2570 is amended by adding paragraph (c)(78) to read
as follows:
Sec. 52.2570 Identification of plan.
* * * * *
(c) * * *
(78) On November 15, 1993, the State of Wisconsin submitted a
revision to the State Implementation Plan (SIP) for the implementation
of a motor vehicle inspection and maintenance (I/M) program in the
Milwaukee-Racine and Sheboygan ozone nonattainment areas. This revision
included 1993 Wisconsin Act 288, enacted on April 13, 1994, Wisconsin
Statutes Sections 110.20, 144.42, and Chapter 341, Wisconsin
Administrative Code Chapter NR 485, SIP narrative, and the State's
Request for Proposal (RFP) for implementation of the program.
(i) Incorporation by reference.
(A) 1993 Wisconsin Act 288, enacted on April 13, 1994.
(B) Wisconsin Statutes, Sections 110.20, 144.42, and Chapter 341,
effective November 1, 1992.
* * * * *
3. Section 52.2569 is added to read as follows:
Sec. 52.2569 Identification of plan-conditional approval.
(a) Revisions to the plan identified in Sec. 52.2570 were submitted
on the date specified.
(1)-(3) (Reserved)
(4) On November 15, 1993, and July 28, 1994, the Wisconsin
Department of Natural Resources (WDNR) submitted enhanced inspection
and maintenance (I/M) rules and a Request for Proposal (RFP) as a
revision to the State's ozone State Implementation Plan (SIP). The EPA
conditionally approved these rules and RFP based on the State's
commitment to amend its rules and sign its final I/M contract to
address deficiencies noted in to the final conditional approval. These
final, adopted rule amendments and final, signed contract must be
submitted to the EPA within one year of the EPA's conditional approval.
(i) Incorporation by reference.
(A) Wisconsin Administrative Code, Chapter NR 485, effective July
1, 1993.
(ii) Additional materials.
(A) SIP narrative plan titled ``Wisconsin--Ozone SIP--Supplement to
1992 Inspection and Maintenance Program Submittal,'' submitted to the
EPA on November 15, 1993.
(B) RFP, submitted along with the SIP narrative on November 15,
1993.
(C) Supplemental materials, submitted on July 28, 1994, in a letter
to the EPA.
[FR Doc. 95-737 Filed 1-11-95; 8:45 am]
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