[Federal Register Volume 59, Number 197 (Thursday, October 13, 1994)]
[Unknown Section]
[Page 0]
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
