[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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