[Federal Register Volume 59, Number 212 (Thursday, November 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27312]


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[Federal Register: November 3, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[ME13-1-6645; A-1-FRL-5076-6]

 

Approval and Promulgation of Air Quality Implementation Plans; 
Maine; Enhanced Inspection and Maintenance in Androscoggin, Cumberland, 
Kennebec, Knox, Lincoln, Sagadahoc, and York Counties

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this action, EPA is conditionally approving a revision to 
the Maine Department of Environmental Protection (DEP) State 
Implementation Plan (SIP) for Inspection and Maintenance (I/M). This 
SIP revision was originally submitted to EPA for approval on November 
1, 1993. This submittal was supplemented by a letter from the 
Commissioner of DEP dated May 26, 1994 describing additional changes 
Maine is making to the I/M program, and a commitment to provide 
additional material by July 22, 1994 and to address issues relating to 
the low mileage waiver by specified dates. On July 21, 1994, the State 
of Maine submitted a revised SIP submittal. The SIP revision includes 
Chapter 128 of an amended State rule entitled ``Motor Vehicle Emission 
Inspection Program,'' and additional supporting material including 
authorizing legislation, administrative items, and a description of the 
program being implemented.
    EPA is conditionally approving the SIP revision on I/M, under 
section 110(k)(4) of the CAA, based on commitments made by Maine in its 
May 26, 1994 letter and reiterated in the July 21, 1994 submittal. 
Maine's commitments pertain to the ``low mileage'' waiver described in 
III.F below as well as the owner-performed repair issue described in 
III.J below. Section 110(k)(4) provides that, if a state fails to 
comply with its commitments by a date certain, but no later than one 
year after EPA approval, EPA's conditional approval will convert to a 
disapproval. The content of the May 26, 1994 letter, and the July 21, 
1994 revised SIP submission are described in detail in this notice.

EFFECTIVE DATE: This final rule is effective on December 5, 1994.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection, by appointment, during normal business 
hours at the Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region I, One Congress Street, 10th 
floor, Boston, MA; Air and Radiation Docket and Information Center, 
U.S. Environmental Protection Agency, 401 M Street, SW., (LE-131), 
Washington, DC; and the Bureau of Air Quality Control, Department of 
Environmental Protection, 71 Hospital Street, Augusta, ME 04333.

FOR FURTHER INFORMATION CONTACT: Robert C. Judge, (617) 565-3233.

SUPPLEMENTARY INFORMATION: On July 8, 1994 (59 FR 35072), EPA published 
a notice of proposed rulemaking (NPR) for the State of Maine. The NPR 
proposed conditional approval or, in the alternative, disapproval of 
Maine's enhanced inspection and maintenance program in Androscoggin, 
Cumberland, Kennebec, Knox, Lincoln, Sagadahoc, and York Counties. This 
SIP revision was originally submitted to EPA for approval on November 
1, 1993.
    This submittal was supplemented by a letter from the Commissioner 
of DEP dated May 26, 1994 describing additional changes Maine is making 
to the I/M program, and a commitment to provide additional material by 
July 22, 1994 and to address issues relating to the low mileage waiver 
by specified dates. On July 21, 1994, the State of Maine submitted a 
revised SIP submittal.
    Specific requirements of EPA's I/M regulations and the rationale 
for EPA's proposed action were explained in the NPR and will not be 
restated here. This rulemaking explains how the State fulfilled the 
requirements articulated in the May 26, 1994 letter from DEP as they 
were described in the NPR. While no public comments were received on 
this NPR, substantial public comments were received on a related NPR 
published on June 23, 1994 (59 FR 32390). In that package, EPA proposed 
approval of a voluntary I/M program in Kennebec, Knox, Lincoln and 
Sagadahoc counties, without evaluating whether or not it met any 
requirements of the federal I/M rule. One hundred seventy-four comment 
letters were received on that package. Comments centered on a potential 
emissions trade, which would have allowed nitrogen oxide emission 
reductions from the I/M program, not reqired by federal law, to be 
traded to promote industrial growth. Though it was reported by the 
local media as such, the NPR did not propose approval of an emissions 
trade. In addition, while many supported I/M, some of the commenters 
questioned the need for I/M in Maine. Each of the letters which had a 
return address was responded to in writing individually from Region 1's 
Air Director, with the exception of comments received from the Natural 
Resources Council of Maine and the American Lung Association of Maine. 
A summary of all these comments, and EPA's response is included in 
section IV of this document. Again, no comments were received on the 
July 8, 1994 NPR to which this final action specifically pertains.
    The I/M SIP includes Chapter 128 of an amended State rule entitled 
``Motor Vehicle Emission Inspection Program,'' and additional 
supporting material including authorizing legislation, administrative 
items, and a description of the program being implemented. Maine 
submitted this SIP revision request to the EPA to satisfy the 
requirements of sections 182(b)(4) and 184(b)(1)(A) of the Clean Air 
Act, and the federal I/M rule codified at 40 CFR part 51, subpart S. 
This SIP revision will require vehicle owners to comply with the Maine 
I/M program in the seven moderate ozone nonattainment counties in 
Maine. This revision applies to the Maine counties of Androscoggin, 
Cumberland, Kennebec, Knox, Lincoln, Sagadahoc, and York. At the time 
the NPR was prepared, the State was proposing revisions to its I/M 
regulations and was undergoing rulemaking action to address outstanding 
deficiencies in the rules submitted as part of the November 1, 1993 SIP 
revision. The July 21, 1994 submittal includes those revised adopted 
rules and a detailed narrative description of the program. EPA is 
taking final action to conditionally approve the program because the 
state has met the requirements of the I/M rule except for the items 
which provide the basis for the conditional approval.
    The NPR stated that the only outstanding issue which could not be 
resolved in time for the July 21, 1994 submission (and which therefore 
formed the basis of the conditional approval) was the ``low mileage'' 
waiver (LMW). Conditional approval for the LMW issue is necessary 
because the number of vehicles to be granted low mileage exemptions is 
uncertain and EPA is concerned that the use of LMWs may result in the 
State's failing to meet the minimum enhanced I/M performance standard 
in actual practice. Coincident with EPA's processing of the NPR, 
however, Maine adopted a change to the regulation that is inconsistent 
with the federal I/M rule. Specifically, Maine allowed for owner-
performed repairs for select emission control devices for 1980 and 
newer vehicles to count toward the minimum waiver expenditure provided 
by section 51.360 of the federal I/M rule. Section 51.360 does not 
allow the cost of parts for these newer vehicles to count toward the 
waiver limit. However, the state committed in its May 26, 1994 letter 
and reiterated in the July 21, 1994 submittal that it would issue 
waivers only when the requirements of EPA's waiver requirements are 
met. EPA construes this as a commitment to adopt the necessary 
corrective measures which in turn provides an additional basis for the 
conditional approval proposed in the July 8, 1994 NPR. EPA believes 
this deviation in the area of owner-performed repairs, referred to 
herein as the ``OPR issue,'' provides an additional basis for the 
conditional approval proposed in the July 8, 1994 NPR. Such conditional 
approval is appropriate because of the State's commitment to meet all 
of EPA's waiver requirements in its May 26, 1994 letter and in the July 
21, 1994 submittal.
    By proposing conditional approval on this action, EPA is agreeing 
to defer final, full approval on the revised SIP until the State has 
conducted a study of the impact of the LMW on the I/M program's 
emission reductions. The May 26, 1994 letter and the July 21, 1994 
submittal commit to completing this evaluation no later than January 
31, 1995. It should be noted that the State's authorizing legislation 
currently sets a deadline of January 15, 1996 for completion of this 
evaluation, and the State's commitment to complete the report by 
January 31, 1995 represents a significantly expedited schedule. In the 
event that the above evaluation shows that the State's use of LMWs 
causes it to fall short of the enhanced I/M performance standard in 
actual practice, the State has further committed to securing the 
necessary legal and regulatory changes to eliminate LMWs in time to 
submit a corrected I/M SIP no later than September 1, 1995. To fulfill 
its commitment to meet all requirements of 40 CFR 51.360 Maine must 
also make the necessary regulatory changes to address the OPR issue no 
later than September 1, 1995. Should the State fail to meet the above 
commitments, the conditional approval will convert to a disapproval.

I. Clean Air Act Requirements

Background

    Maine is part of the Ozone Transport Region (OTR). Section 
184(b)(1)(A) of the Clean Air Act (CAA) requires areas of the OTR 
defined in EPA's final I/M rule (57 FR 52950, November 5, 1992) to 
adopt and implement an inspection and maintenance program meeting EPA's 
enhanced I/M performance standard. In addition, the I/M rule requires 
that all moderate ozone nonattainment areas containing urbanized areas 
must implement a program meeting the basic I/M performance standard. 
Maine is affected by these provisions in some areas of the State. 
Specifically, under EPA's I/M rule, enhanced I/M programs are required 
in the Portland area, and the Maine portion of the Portsmouth, New 
Hampshire area. Basic I/M would be required in the Lewiston-Auburn 
area. This program is being submitted to fulfill Maine's obligations to 
implement basic and enhanced I/M. Enhanced I/M is a more stringent 
program and includes all of the required components of basic I/M.
    EPA has reviewed the November 1, 1993, May 26, 1994 and July 21, 
1994 State submittals against the requirements of the Act and EPA's 
final I/M rule. A summary of EPA's analysis is provided below.

II. I/M Regulation General SIP Submittal Requirements

    On November 5, 1992 (57 FR 52950), EPA published a final regulation 
establishing the I/M requirements, pursuant to sections 182 and 187 of 
the Act. The I/M regulation was codified at 40 CFR part 51, subpart S, 
and requires States to submit, by November 15, 1993, an I/M SIP 
revision that includes all necessary legal authority and the items 
specified in 40 CFR 51.350 through 51.373.

III. State Submittal

    On November 1, 1993, May 26, 1994, and July 21, 1994, the State of 
Maine submitted various elements which, taken together, constitute an 
I/M SIP revision for seven ozone nonattainment counties classified as 
moderate or above. A public hearing for the November 1, 1993 submittal 
was held on October 26, 1992. As stated in the May 26, 1994 letter from 
the DEP, a public hearing also was held on May 25, 1994. The amended 
rules submitted on July 21, 1994, were effective on June 28, 1994. EPA 
submitted comments during both of those hearings. In addition, EPA has 
worked closely with the DEP to ensure that the I/M program meets EPA 
requirements identified in the I/M rule.
    The I/M SIP submittal provides for the implementation of enhanced 
I/M in the Maine counties of Androscoggin, Cumberland, Kennebec, Knox, 
Lincoln, Sagadahoc, and York beginning on July 1, 1994. Maine will be 
implementing a biennial, test-only I/M program. With the changes the 
State made in its July 21, 1994 submittal, the program will meet the 
requirements of EPA's performance standard and other requirements 
contained in the federal    I/M rule, in the above-listed counties. 
Testing will be overseen by the DEP and implemented by an I/M 
contractor. Other aspects of the Maine I/M program include: transient 
testing of 1968 and later light duty vehicles and trucks and heavy duty 
trucks (although only the testing of 1981 and newer vehicles is 
considered in evaluating whether the enhanced performance standard is 
met), evaporative emission testing for specified model year vehicles, a 
test fee to ensure adequate resources to implement the program, 
enforcement by registration suspension, a repair effectiveness program, 
requirements for testing convenience, quality assurance, data 
collection, minimum expenditures prior to time extensions and hardship 
waivers, reporting, test equipment and test procedure specifications, 
public information and consumer protection, inspector training and 
certification, penalties based on inspector incompetence, an on-road 
testing program, and emission recall enforcement. A section-by-section 
analysis of the federal I/M rule, Maine's demonstration of how the I/M 
program meets the federal SIP requirements, as well as the changes to 
the Maine I/M program as submitted on July 21, 1994, is provided below.
A. Applicability
    The SIP describes in detail the areas subject to the enhanced I/M 
SIP revision and, consistent with 40 CFR 51.372, includes the legal 
authority necessary to establish program boundaries.
    The Maine I/M regulations and authorizing legislation specify that 
the enhanced I/M program be implemented in the counties described 
above. The Maine I/M program is being implemented in areas beyond those 
required by the Clean Air Act and EPA's rule. Maine is implementing the 
enhanced I/M program throughout its moderate ozone nonattainment areas, 
in part, to meet requirements of Section 182(b)(1)(A) of the CAA that 
requires reasonable further progress (RFP). EPA intended to take 
separate rulemaking action on the portion of the Maine submittal 
expanding the geographical scope of the I/M program to counties not 
otherwise required to adopt I/M. Those counties include Kennebec, Knox, 
Lincoln, and Sagadahoc. Although these areas are not required to 
implement enhanced or basic I/M, the State of Maine had requested 
expedited approval for those areas in order to make the resultant 
emission reductions federally enforceable. Therefore, EPA moved forward 
to approve I/M in these areas as strengthening the SIP in Knox, 
Kennebec, Lincoln, and Sagadahoc Counties. EPA proposed separate action 
on that optional I/M program in the event that EPA took final action 
disapproving this SIP. However, by this action, Maine's I/M program is 
conditionally approved and the revised SIP requirements will apply to 
all I/M areas including the optional areas. Once Maine has fulfilled 
its commitments regarding the ``low mileage'' waiver and the owner-
performed repair issues, EPA will withdraw the separate rulemaking 
action approving the optional I/M program since that action would be 
superseded by such final (unconditional) approval in the context of 
this rulemaking.
B. Enhanced I/M Performance Standard
    Today's proposal discusses the I/M program designed, in part, to 
meet the enhanced I/M performance standard for ozone precursors causing 
air quality problems in Maine. Maine's program was designed to meet the 
performance standard for volatile organic compounds (VOC) and nitrogen 
oxides (NOX). EPA's performance standard establishes an emission 
reduction target that must be met by a program in order for the SIP to 
be approvable. The program, as documented in the SIP, must meet the 
performance standard in actual operation, with provisions for 
appropriate adjustments if the standard is not met.
    The State submitted a modeling demonstration using the EPA computer 
model, MOBILE5a, showing that the enhanced performance standard will be 
met in the area. The impact of the allowed program exemptions (for 
example, street rods and stock race cars) has been incorporated into 
the estimate of the program's effectiveness. In addition, in its May 
26, 1994 and July 21, 1994 submittals, the DEP provided a commitment to 
maintain the level of compliance and waivers assumed in the modeling. 
The DEP also provided additional detail on this modeling effort, 
including justification for the modeling inputs assumed in the revised 
submittal. The effect of the ``low mileage'' waiver (LMW) was not 
evaluated in this modeling effort. One reason this action is a 
conditional approval is to allow the State to demonstrate that the 
effect of the LMW is negligible, or to fulfill its commitment to make 
necessary legislative and regulatory changes if such LMW affects the 
ability of the State to meet the performance standard.
C. Network Type and Program Evaluation
    Under the Act and EPA's I/M rule the SIP must include a description 
of the network to be employed, the required legal authority, and, in 
the case of areas making claims for case-by-case equivalency, the 
required demonstration. Also, for enhanced I/M areas, the SIP needs to 
include a description of the evaluation schedule and protocol, the 
sampling methodology, the data collection and analysis system, the 
resources and personnel for evaluation and related details of the 
evaluation program, as well as the legal authority establishing the 
evaluation program.
    Maine has chosen to implement a test-only I/M network program 
design utilizing contractors to implement the inspection portion of the 
program. The State has chosen not to make a demonstration for case-by-
case equivalency for a different network design, and has provided 
evidence that precludes conflicts of interest by the contractor, as 
described in the ``test-only'' requirements in the I/M rule. In its 
July 21, 1994 letter, the Maine DEP states, in its SIP revision 
narrative, that it will institute a continuous ongoing evaluation 
program consistent with the federal I/M rule. The results of the 
evaluation program will be reported to EPA on a biennial basis (40 CFR 
51.353). In addition, Maine commits to developing and submitting the 
annual reports described by 40 CFR 51.366. Legal authority, already 
contained in Maine state law, authorizes the DEP to implement this 
contractor operated, test-only program and conduct the program 
evaluation, as necessary, to implement I/M consistent with federal 
requirements.
D. Adequate Tools and Resources
    Under the Act and EPA's I/M rule, the SIP must include a 
description of the resources that will be used for program operation 
and must discuss how the performance standard will be met, including: 
(1) A detailed budget plan describing the source of funds for 
personnel, program administration, program enforcement, purchase of 
necessary equipment (such as vehicles for undercover audits), and for 
other requirements discussed throughout the I/M rule, for the period 
prior to the next biennial self-evaluation required by the federal I/M 
rule, and (2) a description of personnel resources, the number of 
personnel dedicated to overt and covert auditing, data analysis, 
program administration, enforcement, and other necessary functions, and 
the training attendant to each function.
    The current Maine legislation was effective July 12, 1993. The 
legislation authorizes the DEP to collect a fee from the I/M 
contractors to cover the costs of administrating, overseeing, and 
enforcing the I/M program, and provides for allocation of certain 
highway funds for implementation. As Maine committed in the May 28, 
1994 letter, the July 21, 1994 submittal includes additional detail on 
the funding and description of resources to be used for implementation 
of the enhanced I/M program. This narrative describes the budget, 
staffing support, and equipment needed to implement the program. The 
revised regulations provide between a $2.00 and $4.00 fee per 
inspection to be used to administer the program.
E. Test Frequency and Convenience
    Under EPA's I/M rule, the SIP must include a detailed test 
schedule, including the test year selection scheme if testing is other 
than annual. The SIP must also include the legal authority necessary to 
implement and enforce the test frequency requirement and explain how 
the test frequency will be integrated with the enforcement process. In 
addition, in enhanced I/M programs, the SIP needs to demonstrate that 
the network of stations providing testing services is sufficient to 
ensure consumer convenience by providing short waiting times to get a 
test, and short driving distances to get to the test center.
    The Maine SIP revision requires biennial inspections for all 
subject motor vehicles that are at least two years old. The inspections 
will be conducted on odd or even years corresponding to the model year 
of the vehicle and timed with the registration process. This is 
described in more detail in the July 21, 1994 submittal. The authority 
for enforcing the testing frequency is contained in the revised Maine 
I/M rule. Short waiting times and short driving distances relating to 
network design are addressed in the contract between the State and its 
contractor, and in the Maine rules. The contract requires an average 
waiting time of 15 minutes or less per test (except for 7 days per 
month) and inspection facility locations which ensure that 85% of the 
vehicle population is within a fifteen mile drive of each facility.
F. Vehicle Coverage
    Under EPA's I/M rule, the SIP must include a detailed description 
of the number and types of vehicles to be covered by the program, and a 
plan for identifying subject vehicles, including vehicles that are 
routinely operated in the area but may not be registered in the area. 
Also, the SIP must include a description of any special exemptions 
which will be granted by the program, and an estimate of the percentage 
and number of vehicles granted such exemptions. Such exemptions need to 
be accounted for in the emission reduction analysis. In addition, the 
SIP needs to include the legal authority necessary to implement and 
enforce the vehicle coverage requirement.
    Maine's I/M program covers all 1968 and newer model year gasoline 
powered light-duty vehicles and light-duty and heavy-duty trucks, 
registered, or required to be registered, within the nonattainment 
areas (only the testing of 1981 and newer vehicles is considered in 
evaluating whether the enhanced performance standard is met). Vehicles 
will be identified through the State Department of Transportation 
vehicle registration database. Special classes, which are exempt from 
the emission testing program, include vehicles weighing more than 
10,000 pounds (GVWR), street rods, stock race cars, and motorcycles. 
Based on information provided by the State, Maine has shown that such 
exemptions will not prevent the program from achieving the performance 
standard. Additional detail supporting this conclusion was submitted by 
the State on July 21, 1994. Legal authority for the vehicle coverage 
requirement is contained in the Maine I/M rule and the July, 1993 
authorizing legislation. The revised rules submitted by Maine on July 
21, 1994 include a low-mileage waiver (LMW) which exempts vehicles 
driven less than 5000 miles per year. The authorizing legislation 
requires the LMW and also requires that the DEP prepare a report on its 
effect on Maine's ability to meet the performance standard. The May 26, 
1994 letter and the July 21, 1994 submittal from the DEP commit to 
provide the legislature with this information by January 31, 1995, and 
to secure revised legislation if the data shows that Maine cannot 
achieve the performance standard required by EPA's I/M rule. If 
necessary, the DEP also commits to revising its regulation by June 1, 
1995, to hold a public hearing on necessary regulatory changes, and to 
submit to EPA a revised SIP submittal removing the LMW by September 1, 
1995. At present, there is inadequate information for EPA to determine 
how this waiver will affect the performance standard. For this reason, 
EPA is conditionally approving the submission based on the above-
referenced commitments by DEP. Failure to meet any of these dates will 
result in EPA disapproval of this action, unless the EPA Regional 
Administrator approves a later date in writing no later than the date 
of the applicable milestone. Under no circumstances will the September 
1, 1995 date for final submittal be revised.
G. Test Procedures and Standards
    Under EPA's I/M rule, the SIP must include a description of each 
test procedure used. The SIP also must include the rule, ordinance or 
law describing and establishing the test procedures.
    The Maine I/M SIP revision obligates the State to perform transient 
exhaust emission testing using the IM240 driving cycle. In addition, 
the State of Maine has stated that it will follow procedures in 
accordance with EPA's guidance document entitled, ``High-Tech I/M Test 
Procedures, Emission Standards, Quality Control Requirements, and 
Equipment Specifications.'' The State will be requiring IM240 tests on 
1968 and later model year vehicles in the area. This model year 
coverage complies with EPA's I/M regulation. In addition, the State of 
Maine will require evaporative emission testing of fuel system 
integrity and functionality for 1981 and newer vehicles. The test 
procedures are set forth with specificity in the I/M Request For 
Proposal (RFP) which the Maine I/M contractor is required to abide by. 
In approving this action, EPA expects Maine to amend these procedures 
to ensure that the latest EPA procedures will be used in the program, 
if the EPA guidance is revised in the future.
H. Test Equipment
    Under EPA's I/M rule, the SIP must include written technical 
specifications for all test equipment used in the program and address 
each of the requirements set forth at 40 CFR 51.358. The specifications 
must describe the emission analysis process, the necessary test 
equipment, the required features, and written acceptance testing 
criteria and procedures.
    In its July 21, 1994 submission, Maine provided written equipment 
specifications as contained in EPA's IM240 Guidance and the appendices 
of EPA's I/M rule. The Maine SIP submissions and their appendices 
address the requirements in 40 CFR 51.358 and include descriptions of 
performance features and functional characteristics of the computerized 
test systems. The necessary test equipment, required features, and 
acceptance testing criteria are mandated by the RFP and contract.
I. Quality Control
    Under EPA's I/M rule, the SIP must include a description of quality 
control and recordkeeping procedures. The SIP also must include the 
procedures manual, rule, and ordinance or law describing and 
establishing quality control procedures and requirements.
    The Maine I/M SIP narrative, the RFP, and the contract included as 
part of the Maine July 21, 1994 submittal contain descriptions and 
requirements establishing the quality control procedures described in 
accordance with the federal I/M rule and are consistent with EPA 
guidance. These requirements will help ensure that equipment 
calibrations are properly performed and recorded and that the necessary 
compliance document security is maintained. The Maine SIP complies with 
all specifications for quality control set forth in Sec. 51.359 and 
appendix A of the federal I/M rule, and EPA's technical guidance.
J. Waivers and Compliance Via Diagnostic Inspection
    Under EPA's I/M rule the SIP must include a maximum waiver rate 
expressed as a percentage of initially failed vehicles. This waiver 
rate is used for estimating emission reduction benefits in the modeling 
analysis. Corrective action must be taken if the waiver rate exceeds 
that estimated in the SIP, or the state must revise the SIP and claim 
emission reductions accordingly. The SIP also must describe the waiver 
criteria and procedures, including cost limits, quality assurance 
methods and measures, and administration. Lastly, the SIP must include 
the necessary legal authority, ordinance(s), or rules to issue waivers, 
set and adjust cost limits as required, and carry out any other 
functions necessary to administer the waiver system, including 
enforcement of the waiver provisions.
    Cost limits for the minimum expenditure waivers must be in 
accordance with the CAA and federal I/M rule. Expenditures for repairs 
of at least $450, adjusted annually for the consumer price index (CPI), 
must be spent in order to qualify for a waiver in the enhanced I/M 
program. Maine has demonstrated that it can meet the enhanced I/M 
performance standard testing only 1981 and newer vehicles. In addition, 
Maine is requiring I/M on vehicles as old as 1968 model year. These 
vehicles will not be included as part of the ``enhanced I/M'' program, 
despite being subject to the same type of exhaust emission testing 
because the state does not require such vehicles to meet the $450 
waiver minimum. Nevertheless, the testing of these additional vehicles 
will achieve additional emission reductions which will be used, in 
part, as a means of achieving additional emission reductions required 
for Reasonable Further Progress, and anticipated by Maine to be 
necessary for attainment. Accordingly, these older vehicles will be 
subject to a lower waiver expenditure of $125, adjusted for CPI, prior 
to receiving a waiver.
    The Maine program includes a waiver rate of 3% of initially failed 
vehicles, Model Year 1981 and newer. This waiver rate is used in the 
modeling demonstration. The DEP has committed in the July 21, 1994 
submittal, that if the waiver rate is higher than estimated as 
determined by its program reports, the State will take corrective 
action to address the deficiency. Furthermore, the SIP describes the 
three types of waivers the State will allow including: a minimum 
expenditure, a time extension, and a one-time hardship waiver 
provisions. These issues are dealt with in a manner consistent with the 
federal I/M rule. The proper criteria, procedures, quality assurance 
and administration regarding the issuance of waivers, consistent with 
EPA's I/M rule, will be ensured by the DEP and its contractors and are 
detailed in the SIP narrative, submitted on July 21, 1994.
    One portion of the revised Maine rule represents a deviation from 
the requirements of EPA's final rule (57 FR 52950). This provision 
allows for owner-performed repairs for select emission control devices 
(specifically, the catalytic converter, exhaust pipes and hardware, 
fuel filler cap, PCV valve, thermostatic air cleaner, and air pump) for 
1980 and newer vehicles to count toward the minimum waiver expenditure 
set forth in section 51.360 of the federal I/M rule. However, as 
mentioned above, section 51.360 also requires that the State commit to 
maintaining a maximum level of waivers in this program. The State has 
committed to a 3 percent waiver limit, and to taking necessary steps to 
ensure that this rate is not exceeded. It is the level of waivers that 
greatly affects the level of emission reductions achieved from the 
program. Maine's deviation in the area of owner-performed repairs is 
very narrow since the list of emission control devices for which costs 
can count toward the waiver is expressly limited. Based on these 
considerations and the State's commitment to ensuring an allowable 
maximum waiver rate, EPA believes that a specified and clearly limited 
deviation from the federal I/M rule in the area of owner-performed 
repairs will not significantly affect the level of reductions achieved 
from the I/M program.
    The State committed in its May 26, 1994 letter, reiterated in the 
July 21, 1994 submittal, that Maine would issue waivers only when the 
requirements of EPA's waiver requirements were met. In its May 26, 1994 
letter, the State committed to amend the SIP to not allow owner repair 
costs to count toward the $450 waiver amount for 1980 and later model 
year vehicles. The July 21, 1994 submittal stated that Maine would 
issue waivers ``only when the requirements of 40 CFR 51.360 are met.'' 
EPA construes this as a commitment to adopt the necessary corrective 
measures, which in turn provides an additional basis for the 
conditional approval proposed in the July 8, 1994 NPR. EPA has 
commented previously on the waiver provisions, including the OPR issue 
and the NPR proposed a conditional approval so that public notice on 
these issues was sufficient. For these reasons, EPA is conditionally 
approving this SIP revision. Accordingly, this notice requires the DEP 
to revise its regulation by June 1, 1995, to hold a public hearing on 
necessary regulatory changes, and to submit to EPA a revised SIP 
submittal removing the OPR waiver allowance for 1980 and newer cars by 
September 1, 1995. Of course, the State's failure to meet any of these 
dates will result in EPA disapproval of this action, unless the EPA 
Regional Administrator approves a later date in writing no later than 
the date of the applicable milestone. The September 1, 1995 date for 
final submittal will not be revised under any circumstances.
K. Motorist Compliance Enforcement
    Under EPA's I/M rule, the SIP must provide information concerning 
motorist enforcement, including: (1) A description of the existing 
compliance mechanism if it will continue to be used for this program, 
and the demonstration that it is as effective or more effective than 
registration-denial enforcement; (2) an identification of the agencies 
responsible for performing each of the applicable activities in this 
section; (3) a description of, and accounting for, all classes of 
exempt vehicles; and (4) a description of the plan for testing fleet 
vehicles, rental car fleets, leased vehicles, and any other special 
classes of subject vehicles, such as those operated (but not 
necessarily registered) in the program area. Also, the SIP must include 
a determination of the current compliance rate based on a study of the 
system including an estimate of compliance losses due to loopholes, 
counterfeiting, and unregistered vehicles. Estimates of the effect of 
closing such loopholes and otherwise improving the enforcement 
mechanism must be supported with detailed analyses. In addition, the 
SIP needs to include the legal authority to implement and enforce the 
program. Lastly, the SIP must include a commitment to an enforcement 
level and minimum compliance level used for modeling purposes and to be 
maintained, at a minimum, in practice.
    The State of Maine has chosen to use a program of registration 
suspension whereby subsequent registration is denied to anyone who 
fails to meet emission testing requirements. The motorist compliance 
enforcement program will be implemented primarily by the Maine Bureau 
of Motor Vehicles (BMV). The enforcement strategy is described in 
Maine's July 21, 1994 submittal. The enforcement strategy is designed 
to ensure a 90 percent compliance rate for all vehicles within 4 months 
of the compliance deadline. As described in the July 21, 1994 
submittal, this will be accomplished by a computer matching program 
that will identify registered vehicles tested prior to registration, as 
well as those receiving their emission inspection within a 60 day 
period after registering. Those not receiving the emissions test will 
be notified of such failure, and put on notice that their registration 
will be suspended if they do not comply. Those that still fail to 
comply will either receive a summons to appear in court, or be subject 
to confiscation of their license plate by BMV personnel who would 
physically remove the plate from the vehicle. In addition, the Maine 
legislation authorizing I/M provides that vehicles operating with a 
suspended registration must be fined at least $450 for 1981 model year 
or newer vehicles, or $125, for older than 1981 model year vehicles.
    The only classes of vehicles exempt from the I/M program are 
described above under vehicle coverage. Fleet vehicles, rental car 
fleets, and leased vehicles will be required to meet the same program 
requirements as all other vehicles that receive annual registration. 
The compliance rate for the program was estimated at 96%. The legal 
authority to implement and enforce the program is included in the Maine 
law and in DEP and BMV rules as supplied on July 21, 1994.
L. Motorist Compliance Enforcement Program Oversight
    Under EPA's I/M rule, the SIP must include a description of 
enforcement program oversight and information management activities.
    The Maine I/M SIP revision provides for regular auditing of its 
enforcement program and adherence to effective management practices, 
including adjustments to improve the program when necessary. These 
program oversight and information management activities were described 
in the July 21, 1994 SIP narrative, and include: establishing 
procedures for personnel engaged in I/M document handling and 
processing, supporting a communications network for the State's 
oversight and management requirements, and establishing an I/M database 
to compare to the registration database for purposes of determining 
program effectiveness. In addition, the SIP describes the procedures to 
be followed in identifying noncomplying vehicles, timeframes for 
confiscation of suspended vehicle registration certificates and plates, 
timeframes for issuing summonses to appear in court, and the associated 
fines for failure to comply.
M. Quality Assurance
    Under EPA's I/M rule, the SIP must include a description of the 
quality assurance program, and written procedure manuals covering both 
overt and covert performance audits, record audits, and equipment 
audits.
    The July 21, 1994 submittal from Maine includes a description of 
the quality assurance program. According to that submittal, the program 
will include operation and progress reports and overt and covert audits 
of all emission inspectors and emission inspection facilities to be 
conducted by the DEP. Written procedures and techniques for overt and 
covert performance, record, and equipment audits will be prepared and 
provided to auditors and updated as needed. The July 21, 1994 
submission also includes a commitment to conduct a minimum of two (2) 
covert audits per lane per year.
N. Enforcement Against Contractors, Stations and Inspectors
    Under EPA's I/M rule, the SIP must include a penalty schedule and 
legal authority for establishing and imposing penalties, civil fines, 
station and inspector license suspension, and revocations. In the case 
of state constitutional impediments precluding immediate authority to 
suspend licenses, the state Attorney General shall furnish an official 
opinion within the SIP explaining the constitutional impediment as well 
as relevant case law. The SIP also must describe the administrative and 
judicial procedures and responsibilities relevant to the enforcement 
process, including the agencies, courts, and jurisdictions involved, 
personnel to prosecute and adjudicate cases, and other aspects of the 
enforcement of the program requirements, the resources to be allocated 
to the enforcement function, and the source of those funds. In states 
that are without immediate suspension authority, the SIP must 
demonstrate that sufficient resources, personnel, and systems are in 
place to meet the three-day case management requirement for violations 
that directly affect emission reductions.
    The Maine I/M SIP revision includes specific penalties in its 
enforcement against contractors, stations and inspectors in accordance 
with the federal I/M rule. Based on its SIP submittal dated July 21, 
1994, the State's enforcement procedures can be pursued through 
contractual or regulatory action. The DEP has the authority to 
immediately suspend a station inspector for violations that directly 
affect emission reduction benefits. Authority for establishing and 
imposing penalties, civil fines, license suspension, and revocations 
are contained in the contract. The DEP is planning to assign employees 
to covert and overt auditing and commit additional resources required 
for enforcement oversight. These audits and oversight functions will be 
funded by the inspection fee.
O. Data Analysis and Reporting
    Under EPA's I/M rule, the SIP must describe the types of data to be 
collected.
    The Maine I/M SIP provides for collecting test data to link 
specific test results to specific vehicles, I/M program registrants, 
test sites, and inspectors. The SIP lists the specific types of test 
data and quality control data which will be collected. As outlined 
above and described in the May 26, 1994 and July 21, 1994 submittals, 
the data will be used to generate reports concerning test data, quality 
assurance, quality control, enforcement, as well as necessary changes 
and identified weaknesses in the program. The state has also committed 
to collecting all data necessary for the quality assurance and 
enforcement reports, as required by 51.366 of the federal I/M rule.
P. Inspector Training and Licensing or Certification
    Under EPA's I/M rule, the SIP must include a description of the 
training program, the written and hands-on tests, and the licensing or 
certification process.
    The May 26, 1994 and July 21, 1994 submittals from the DEP provide 
detail on the inspector training program. The Maine I/M SIP provides 
for implementation of training, licensing, and refresher programs for 
emission inspectors. The SIP describes the program and curriculum 
including written and hands-on testing at least once every two years. 
All inspectors will be required to be licensed to inspect vehicles in 
the Maine I/M program.
Q. Improving Repair Effectiveness
    Under EPA's I/M rule, the SIP must include a description of the 
technical assistance program to be implemented, a description of the 
procedures and criteria to be used in meeting the performance 
monitoring requirements of this section for enhanced I/M programs, and 
a description of the repair technician training resources available in 
the community.
    In the July 21, 1994 submittal, Maine provided additional detail 
and a description of the technical assistance, performance monitoring 
and repair technician training programs to be implemented. The SIP 
revision provides for regularly informing repair facilities about 
changes to the inspection program, training course schedules, common 
problems, and potential solutions for particular engine families, 
diagnostic tips, repairs, and other assistance issues. As described in 
the July 21, 1994 submittal, the DEP has also ensured that a repair 
technician hotline be available for repair technicians, and issued a 
contract to accomplish this. Performance monitoring statistics of 
repair facilities will be provided to motorists whose vehicles fail the 
I/M tests in enhanced I/M areas. The State has committed to ensure that 
adequate repair technician training exists by establishing training 
courses at technical schools in the area, and has secured necessary 
funding under the Intermodal Surface Transportation Efficiency Act. 
Further, the SIP includes a detailed public information and consumer 
protection plan consistent with the requirements of EPA's I/M Rule at 
Sec. 51.368.
R. Compliance With Recall Notices
    Under EPA's I/M rule, the SIP must describe, for enhanced I/M 
programs, the procedures used to incorporate the vehicle recall lists 
provided into the inspection or registration database, the quality 
control methods used to ensure that recall repairs are properly 
documented and tracked, and the method (inspection failure or 
registration denial) used to enforce the recall requirements.
    The revised Maine I/M SIP ensures that vehicles subject to the 
enhanced I/M program that are included in either a voluntary emission 
recall or a remedial plan determination pursuant to the CAA have had 
the appropriate repairs made prior to the inspection. The contractor 
will identify vehicles that have not completed recall repairs through 
an electronic database, updated on a quarterly basis. Motorists with 
unresolved recall notices will be required to show proof of compliance 
or will be denied the opportunity for inspection. The revised rules of 
June 28, 1994 address this issue, and were submitted on July 21, 1994.
S. On-road Testing
    Under the Act and EPA's I/M rule, the SIP must include a detailed 
description of the on-road testing program required in enhanced I/M 
areas, including the types of testing, test limits and criteria, the 
number of vehicles (the percentage of the fleet) to be tested, the 
number of employees to be dedicated to the on-road testing effort, the 
methods for collecting, analyzing, utilizing, and reporting the results 
of on-road testing and, the portion of the program budget to be 
dedicated to on-road testing. Also, the SIP must include the legal 
authority necessary to implement the on-road testing program, including 
the authority to enforce off-cycle inspection and repair requirements. 
In addition, emission reduction credit for on-road testing programs can 
only be granted for a program designed to obtain significant emission 
reductions over and above those predicted to be achieved by other 
aspects of the I/M program. The SIP needs to include technical support 
for the claimed additional emission reductions.
    The I/M SIP submitted on July 21, 1994 includes a detailed 
description of its on-road testing program. The testing program will 
include 0.5% of the subject vehicles. Vehicles with emission readings 
measured by remote sensing devices exceeding limits defined in the 
revised rules will be required to obtain an out-of-cycle inspection at 
a vehicle emission inspection facility. This program will be staffed by 
the DEP. Data collection and reporting will be done using the general 
record-keeping and reporting provisions of the I/M program. The legal 
authority for this program is contained in the Maine I/M rule and the 
authorizing legislation. The State did not include additional modeling 
credit for this portion of the program as part of the modeling used to 
demonstrate that EPA's performance standard was met.
T. Concluding Statement
    A more detailed analysis of the State's submittal and how it meets 
the federal requirements is contained in the EPA's technical support 
document prepared for this action. The TSD is available from the EPA 
New England Regional office listed above. The criteria used to review 
the submitted SIP revision are based on the requirements set forth in 
Section 182 of the CAA and in the federal I/M regulations. Based on 
these requirements, EPA developed a detailed I/M approvability 
checklist to be used nationally to determine if I/M programs meet the 
requirements of the CAA and the federal I/M rule. The checklist states 
the federal requirements, referenced by section of the rule, whether or 
not the Maine program meets such requirements, and where in the Maine 
SIP submittal the requirements are met. This checklist, the CAA, and 
the federal I/M regulation formed the basis for EPA's technical review. 
EPA has reviewed the Maine I/M SIP revision submitted to the EPA using 
the criteria stated above. The Maine regulations and accompanying 
materials contained in the SIP submittals from the State represent an 
acceptable plan to comply with the I/M requirements and meet all the 
criteria required for EPA to conditionally approve the SIP.
    Due to recent, well-publicized criticism of initial I/M testing in 
Maine, an agreement appears to have been reached between 
representatives of the Governor's Office, the Maine Legislature, the 
DEP, and Systems Control, Maine's I/M contractor. The agreement calls 
for a suspension of mandatory vehicle testing until March, 1995 so that 
improvements can be made to ensure a fair and equitable program. Since 
EPA's I/M rule permits the phase-in of emissions testing in areas 
implementing new test-only programs (See 40 CFR 51.373(c)(2)), the 
agreement in no way precludes EPA from conditionally approving the 
Maine I/M SIP as set forth in this notice.

IV. Response to Comments

    While no public comments were received on this NPR, substantial 
public comments were received on a related NPR published on June 23, 
1994 (59 FR 32390). That package proposed approval of an I/M program in 
Kennebec, Knox, Lincoln and Sagadahoc, with no judgement as to whether 
or not it met any requirements of the federal I/M rule. One hundred 
seventy-four comment letters were received on that package. Comments 
centered on a proposed trade which would have allowed nitrogen oxide 
emission reductions not required by federal law from the I/M program to 
be traded to promote industrial growth. Though it was reported by local 
media as such, EPA's notice did not propose to approve such a trade. In 
addition, while many commenters supported I/M, some questioned the need 
for I/M in Maine. The Maine Lung Association commented in support of 
expanding the program to the four optional counties. Each of the 
letters which had a return address were responded to in writing 
individually from Region l's Air Director, with the exception of the 
Natural Resources Council of Maine and the American Lung Association of 
Maine. A summary of these comments, and EPA's response is included in 
this package. No comments were received on the July 8, 1994 NPR to 
which this final action specifically pertains.
    The Natural Resources Council of Maine and the American Lung 
Association of Maine commented the EPA should wait to approve the use 
of NOX credits for trading purposes until an attainment 
demonstration has been submitted by the state and approved by EPA. This 
would allow both parties to determine if any credits generated by 
expanding the program area were surplus and available for trading to 
meeting offset requirements. Surplus credits are credits beyond those 
mandated by CAA requirements and necessary for attainment or Reasonable 
Further Progress. EPA agrees with this comment and will continue to 
work with the state of Maine to ensure that any credits generated by 
the I/M program used to meet offset requirements are surplus credits.

Final Action

     EPA is conditionally approving the Maine I/M program submitted by 
the State, on November 1, 1993, May 26, 1994, and July 21, 1994.
    Pursuant to section 110(k)(4) of the CAA, EPA is conditionally 
approving Maine's submission based on the commitments of the DEP. 
Specifically, by January 31, 1995 the DEP will submit a report 
outlining the effect of the ``low mileage'' waiver to the legislature; 
by June 1, 1995, if necessary, will hold a public hearing on revised 
regulation changes; and by September 1, 1995, if necessary, will submit 
a revised SIP revision removing the ``low mileage'' waiver from the 
regulations. The state must also address the above described issues 
related to owner performed repairs according to the same schedule. 
Section 110(k)(4) provides that, if a state fails to comply with its 
commitment, such conditional approval will convert to a disapproval.
    Failure to meet any of these dates will result in EPA disapproval 
of this action, unless the EPA Regional Administrator approves a later 
date, in writing, by no later than the date of the applicable 
milestone. Under no circumstances will the September 1, 1995 date for 
final submittal be revised.
    Under 5 U.S.C. 605(b), I certify that this SIP revision will not 
have a significant economic impact on a substantial number of small 
entities. (See 46 FR 8709.)
    This action has been classified as a Table 1 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 H. Shapiro, Acting Assistant Administrator for 
Air and Radiation. A future document will inform the general public of 
these tables.
    Conditional approvals of SIP submittal under sections 110 and 301 
subchapter I, part D of the CAA do not create any new requirements, but 
simply approve requirements that the state is already imposing or has 
committed to impose in the future. Therefore, because the federal SIP 
approval does not impose any new requirements, it 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 
a flexibility analysis for a SIP approval would constitute federal 
inquiry into the economic reasonableness of the state actions. The CAA 
forbids EPA to base its actions concerning SIPs on such grounds. Union 
Electric Co. v. U.S. EPA, 427 U.S. 246, 96 S. Ct. 2518 (1976); 42 
U.S.C. 7410(a)(2).
    If EPA issues a final disapproval or if this conditional approval 
is converted to a disapproval under section 110(k), based on the 
state's failure to meet the commitment, it will not affect any existing 
state requirements applicable to small entities. Federal disapproval of 
the state submittal does not affect its state-enforceability. Moreover, 
EPA's disapproval of the submittal does not impose a new federal 
requirement. Therefore, EPA certifies that in the event EPA disapproves 
the state submittal, such disapproval would not have a significant 
impact on a substantial number of small entities because it would not 
remove existing state requirements nor would it substitute a new 
federal requirement.
    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.
    The Administrator's decision to approve or disapprove the SIP 
revision is based on whether it meets the requirements of sections 
110(a)(2) (A)-(K) and 110(a)(3) of the Clean Air Act, as amended, and 
EPA regulations in 40 CFR part 51.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

    Note: Incorporation by reference of the State Implementation 
Plan for the State of Maine was approved by the Director of the 
Federal Register on July 1, 1982.

    Dated: September 15, 1994.
Carol M. Browner,
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 U--Maine

    2. Section 52.1019 is added to subpart U to read as follows:


Sec. 52.1019  Identification of plan--conditional approval.

    (a) The following plan revisions were submitted on the dates 
specified.
    (1) On November 1, 1993 the Maine Department of Environmental 
Protection submitted a revision to the State Implementation Plan (SIP) 
for an enhanced Inspection and Maintenance (I/M) program in 
Androscoggin, Cumberland, Kennebec, Knox, Lincoln, Sagadahoc, and York 
counties. This submittal was supplemented by a letter dated May 26, 
1994 describing additional changes Maine is making to the I/M program, 
and a commitment to provide additional material by July 22, 1994. On 
July 21, 1994, Maine submitted a revised submission. In these 
submissions, the State submitted adequate legal and regulatory 
authority to establish and implement an I/M program which meets the 
requirements of the Clean Air Act by September 1, 1995.
    (i) Incorporation by reference.
    (A) Letters from the Maine Department of Environmental Protection 
dated November 1, 1993, May 26, 1994 and July 21, 1994 submitting a 
revision to the Maine State Implementation Plan.
    (B) The ``Motor Vehicle Emission Inspection Program'' regulation at 
Chapter 128 of the Department of Environmental Protection regulations 
effective June 28, 1994.
    (C) Title 38, Chapter 28, Motor Vehicle Inspection Program, and 
Title 29, Section 102-C, Motor Vehicle Inspection Requirement for 
Vehicle Registration, which are state law citations authorizing the 
above regulation, both effective June 30, 1992 and revised effective 
October 13, 1993.
    (ii) Additional materials. Nonregulatory, administrative portions 
of the November 1, 1993, May 26, 1994, and July 21, 1994 submissions to 
the Maine State Implementation Plan.
    (b) [Reserved].

[FR Doc. 94-27312 Filed 11-2-94; 8:45 am]
BILLING CODE 6560-50-P