[Federal Register Volume 61, Number 230 (Wednesday, November 27, 1996)]
[Proposed Rules]
[Pages 60242-60253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-29660]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Docket 154, NY22-1; FRL-5652-5]
Approval and Promulgation of Air Quality Implementation Plans;
New York: Enhanced Motor Vehicle Inspection and Maintenance Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed conditional interim rule.
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SUMMARY: EPA is proposing a conditional interim approval of a State
Implementation Plan (SIP) revision submitted by the State of New York.
This revision establishes and requires the implementation of an
enhanced inspection and maintenance (I/M) program in the counties of
the Bronx, Kings, Nassau, New York, Queens, Richmond, Rockland, Suffolk
(except Fisher's Island), and Westchester Counties. The intended effect
of this action is to propose conditional interim approval of the I/M
program proposed by the State, based upon the State's good faith
estimate, which asserts that the State's network design emission
reduction credits are appropriate and the revision is otherwise in
compliance with the Clean Air Act (CAA). This action is being taken
under section 348 of the National Highway System Designation Act of
1995 (NHSDA) and section 110 of the CAA. EPA is proposing a conditional
interim approval because the State's SIP revision is deficient with
respect to the following requirements: test procedures; standards and
equipment; waiver expenditure requirements; and performance standard
modeling.
If the State commits within 30 days of the publication of this
proposed conditional interim approval to correct the major deficiencies
by dates certain as described below, then this proposed conditional
interim approval shall expire pursuant to the NHSDA and section 110 of
the CAA on the earlier of 18 months from final interim approval, or on
the date EPA takes final action on the state's full I/M SIP. In the
event that the State fails to submit a commitment to correct all of the
major deficiencies within 30 days after the publication of this
proposed conditional interim approval, then EPA is proposing in the
alternative to disapprove the SIP revision. If the state does not make
a timely commitment but the conditions are not met by the specified
date within one year, EPA proposed that this proposed conditional
interim approval will convert to a final disapproval. If the
conditional interm approval is converted to a disapproval, EPA will
notify the State by letter that the conditions have not been met and
that the conditional interim approval has been converted to a
disapproval.
DATES: Comments must be received on or before December 27, 1996.
ADDRESSES: Written comments on this proposed action may be addressed
to: Regional Administrator, Attention: Air Programs Branch, Division of
Environmental Planning and Protection, Environmental Protection Agency,
Region 2, 290 Broadway, 25th Floor, New York, New York 10007-1866.
Copies of the documents relevant to this action are available for
public inspection during normal business hours at the address shown
above.
Electronic Availability: This document and EPA's technical support
document are available at Region 2's site on the Internet's World Wide
Web at: http://www.epa.gov/region02/ air/sip/.
FOR FURTHER INFORMATION CONTACT: Rudolph K. Kapichak, Mobile Source
Team Leader, Air Programs Branch, Environmental Protection Agency,
Region 2, 290 Broadway, 25th Floor, New York, New York 10007-1866,
(212) 637-4249.
Supplementary Information:
I. Background
A. Impact of the National Highway System Designation Act on the Design
and Implementation of Enhanced Inspection and Maintenance Programs
Under the Clean Air Act
The National Highway System Designation Act of 1995 (NHSDA)
establishes two key changes to the enhanced I/M Rule requirements
previously developed by EPA. Under the NHSDA, EPA cannot require states
to adopt or implement centralized, test-only IM240 enhanced vehicle
inspection and maintenance programs as a means of compliance with
section 182, 184 or 187 of the CAA. Also under the NHSDA, EPA cannot
disapprove a state SIP revision, nor apply an automatic discount to a
state SIP revision under section 182, 184 or 187 of the CAA, because
the I/M program in such plan revision is decentralized, or a test-and-
repair program. Accordingly, the so-called ``50 percent credit
discount'' that was established by the EPA's I/M Program Requirements
Final Rule, (published November 5, 1992, and herein referred to as the
I/M Rule or the federal I/M regulation) has been effectively replaced
with a presumptive equivalency criterion, which places the emission
reductions credits for decentralized networks on par with credit
assumptions for centralized networks, based upon a state's good faith
estimate of reductions as provided by the NHSDA and explained below in
this section.
EPA's I/M Rule established many other criteria unrelated to network
design or test type for states to use in designing enhanced I/M
programs. All other elements of the I/M Rule, and the statutory
requirements established in the CAA continue to be required of those
states submitting I/M SIP revisions under the NHSDA. Therefore, the
NHSDA specifically requires that these submittals must otherwise comply
in all respects with the I/M Rule and the CAA.
The NHSDA also requires states to swiftly develop, submit, and
begin implementation of these enhanced I/M programs, since the
anticipated start-up dates developed under the CAA and EPA's I/M Rule
have already been delayed. In requiring states to submit their I/M
plans within 120 days of the NHSDA passage, and in allowing these
states to submit proposed regulations within this time frame for their
I/M programs (which can be finalized and submitted to EPA during the
interim period) it is clear that Congress intended
[[Page 60243]]
for states to begin testing vehicles as soon as practicable now that
the decentralized credit issue has been clarified and directly
addressed by the NHSDA.
Submission criteria described under the NHSDA allow for a state to
submit proposed regulations for this interim program, provided that the
state has all of the statutory authority necessary to carry out the
program. Also, in proposing the interim emission reduction credits for
this program, the state is required to make a good faith estimate
regarding the performance of its enhanced I/M program. Since this
estimate is expected to be difficult to quantify, the state need only
provide that the proposed emission reduction credits claimed for the
submission have a basis in fact. A good faith estimate may be based on
any of the following: the performance of any previous I/M program, the
results of remote sensing or other roadside testing techniques, fleet
and vehicle miles traveled (VMT) profiles, demographic studies, or
other evidence which has relevance to the effectiveness or emissions
reducing capabilities of an I/M program.
This action is being taken under the authority of both the NHSDA
and section 110 of the CAA. Section 348 of the NHSDA expressly directs
EPA to issue this interim approval for a period of 18 months, at which
time the interim program will be evaluated in concert with the
appropriate state agencies and EPA. The Conference Report on section
348 of the NHSDA states that it is expected that the estimated emission
reduction credits claimed by the state in its I/M SIP, and the actual
emissions reductions demonstrated through the program data may not
match exactly. Therefore, the Conference Report suggests that EPA use
the program data to appropriately adjust the proposed emission
reduction credits to reflect the emissions reductions actually measured
by the state during the program evaluation period.
Furthermore, EPA believes that in taking action under section 110
of the CAA, it is appropriate to grant a conditional approval to this
submittal, since there are some deficiencies with the submittal in
respect to CAA statutory and regulatory requirements (identified
herein). EPA believes that these deficiencies can be corrected by the
state during the interim period.
B. Interim Approvals Under the NHSDA
The NHSDA directs EPA to grant interim approval for a period of 18
months to approvable I/M submittals under this Act. The NHSDA also
directs EPA and the states to review the interim program results at the
end of 18 months, and to make a determination as to the effectiveness
of the interim program. Following this demonstration, EPA will adjust
any credit claims made by the state in its good faith effort to reflect
the emissions reductions actually measured by the state during the
program evaluation period. The NHSDA is clear that the interim approval
shall last for only 18 months, and that the program evaluation is due
to EPA at the end of that period. Therefore, EPA believes Congress
intended for these programs to start-up as soon as possible, which EPA
believes should be at the latest, by November 15, 1997. This would
allow the state about six months to generate data to support its
emission reduction claim. EPA further believes that in setting such a
strict timetable for program evaluations under the NHSDA, Congress
recognized and attempted to mitigate any further delay with the start-
up of this program. For the purposes of this program, ``start-up'' is
defined as a fully operational program which has begun regular,
mandatory inspections and repairs, using the final test strategy and
covering each of a state's required areas. EPA proposes that if the
state fails to start its program on this schedule, the approval granted
under the provisions of the NHSDA will convert to a disapproval after a
finding letter is sent to the state.
The program evaluation to be used by the state during the 18-month
interim period must be acceptable to EPA. EPA anticipates that such a
program evaluation process will be developed by the Environmental
Council of States (ECOS) group that has convened and that was organized
for this purpose. EPA further anticipates that in addition to the
interim, short term evaluation, the state will conduct a long term,
ongoing evaluation of the I/M program as required by the I/M Rule in 40
CFR 51.353 and 51.366.
C. Process for Final Approval of This Program Under the CAA
As per the NHSDA requirements, this interim rulemaking will expire
within 18 months of the conditional interim approval, or sooner if EPA
takes action to approve the final SIP submittal prior to that date. A
final approval of the state's final I/M SIP revision (which will
include the state's program evaluation and final adopted state
regulations) is still necessary under section 110 and under section
182, 184 or 187 of the CAA. After EPA reviews the state's submitted
program evaluation, final rulemaking on the state's final SIP revision
will occur.
II. EPA's Analysis of New York State's Submittal
On March 27, 1996, the New York State Department of Environmental
Conservation (DEC) submitted a revision to its State Implementation
Plan (SIP) for an enhanced I/M program to qualify under the NHSDA. The
revision consists of enabling legislation that will allow the State to
implement the I/M program, proposed regulations, a description of the
I/M program (including a modeling analysis and detailed description of
program features), and a good faith estimate that includes the State's
basis in fact for emission reduction claims of the program. The State's
credit assumptions were based upon the removal of the 50 percent credit
discount for all portions of the program that are based on a test-and-
repair network, and the application of the State's own estimate of the
effectiveness of its decentralized test-and-repair program.
A. Analysis of the NHSDA Submittal Criteria
Transmittal Letter
On March 27, 1996, New York submitted an enhanced I/M SIP revision
to EPA, requesting action under the NHSDA and the CAA. The official
submittal was made by David Sterman, Deputy Commissioner, the
appropriate State official, and was addressed to Regional Administrator
Jeanne M. Fox, the appropriate EPA official in the Region.
Enabling Legislation
The State of New York has legislation under Articles 3 and 19 of
the State's Environmental Conservation Law and titles II and III of the
State's Vehicle and Traffic Law, enabling the implementation of an
enhanced I/M program.
Proposed Regulations
On March 6, 1996, the State of New York, proposed regulations in
accordance with 40 CFR Part 51, establishing an enhanced I/M program.
DEC proposed to amend existing regulation 6NYCRR Part 217, ``Motor
Vehicle Emissions,'' and the Department of Motor Vehicles (DMV)
proposed to amend existing regulation 15NYCRR Part 79, ``Motor Vehicle
Inspection Regulations.'' The primary program changes are as follows:
A transient test (using a dynamometer) will replace the
idle test,
Waivers will now be granted only after motorists meet the
repair expenditure requirement, and
[[Page 60244]]
A gas cap test will be added to curtail evaporative
emissions.
The State anticipates fully adopting regulations by mid-November
1996.
Program Description
New York has proposed an annual enhanced decentralized test-and-
repair I/M program utilizing ``IG240'', which is a transient
dynamometer-based emissions test. Existing test-and-repair stations
will be utilized for the program. New York anticipates that
approximately 50 percent of the existing stations will upgrade their
equipment. Vehicles 25 years old and newer will be subject to the new
program. The State proposes to implement the enhanced program in
January 1998. Pass/fail cutpoints will be phased-in through to the year
2000.
Emission Reduction Claim and Basis for the Claim
The ``Utah Protocol'' was used to support the State's estimate of
the anticipated emission reductions. It is also assumed that utilizing
``IG240'' emissions testing will yield emission reductions midway
between what would be gained from IM240 and a two-mode Acceleration
Simulation Mode (ASM) test. The State claims 81 percent effectiveness
for its test-and-repair program. The State proposes to use gas cap
testing in place of pressure/purge testing and claims 100 percent
effectiveness. The State claims only 50 percent effectiveness for its
technician training program because the repair technicians will not be
required to be licensed.
B. Analysis of the EPA I/M Regulation and CAA Requirements
AAs previously stated, the NHSDA left those elements of
the I/M Rule that do not pertain to network design or test type intact.
Based upon EPA's review of New York's submittal, EPA believes the State
has not complied with all aspects of the NHSDA, the CAA and the I/M
Rule. Therefore, EPA proposes to conditionally approve the I/M SIP
revision. Before EPA can continue with the interim rulemaking process,
the State must make a commitment within 30 days of November 27, 1996 to
correct the major deficiencies by dates certain as described in this
document. New York's major deficiencies are described below.
Waiver Expenditure Requirements
Many of the I/M programs currently operating include waivers for
vehicles that cannot pass the applicable pass/fail standards, usually
with a minimum expenditure requirement. Section 182(c)(2)(C)(iii) of
the CAA included such a requirement, calling for owners of vehicles
that fail an initial emissions inspection to spend at least $450 (1989
cost), allowing for yearly Consumer Price Index (CPI) adjustments as
specified in section 502(b)(3)(B)(v)(II) of the CAA. Although New
York's proposed enhanced I/M program does include the $450 initial
amount, it is not clear from the submitted I/M SIP revision whether the
CPI adjustments account for increases since 1989, as required.
Enhanced I/M Performance Standard Modeling
Section 51.350 of the federal I/M regulation requires that states
submit, along with their proposed programs, modeling assumptions and
results using EPA's most recent version of the mobile emissions model;
currently MOBILE5a. New York's submittal includes such modeling.
However, it includes assumptions for a test method that has yet to be
developed, and for which no emission reduction credits have been
established.
Test Procedures, Standards and Equipment
Sections 51.357 and 51.358 of the federal I/M regulation require
states to provide a clear step-by-step description of the test
equipment, test process, and the pass/fail standards to be used. Since
New York's test has not been fully developed, the State has yet to
finalize its test procedure, standards and test equipment
specifications. This must be done well in advance of program start.
In order for EPA to proceed with conditional interim approval the
State must commit within 30 days of the publication date of this
proposal to correct these major deficiencies by dates certain or this
approval will convert to a disapproval under CAA section 110(k)(4). EPA
proposes that the deficiencies with regard to the enhanced performance
standard modeling and the waiver expenditure requirements must be
corrected within 12 months of EPA's conditional interim approval.
Because the finalization of the test procedures, standards and
equipment specifications is critical to ensuring that the program
begins testing by the required date EPA proposes that this deficiency
must be corrected no later than January 31, 1997. It is essential that
the State submit final test procedures, standards and equipment
specifications no later than this date because a significant lead time
is necessary in order for the program to begin testing as planned.
EPA has also identified certain minor (de minimis) deficiencies in
the I/M SIP revision, which include:
(1) Repair station report card,
(2) Quality control,
(3) Quality assurance,
(4) Data Collection,
(5) Inspector training, and
(6) On-road testing.
EPA has determined that allowing the State a longer time to correct
these minor deficiencies will have a de minimis impact on the State's
ability to meet clean air goals. Therefore, the State need not commit
to correct these deficiencies in the short term, and EPA will not
impose conditions on interim approval with respect to these
deficiencies. However, the State must correct these deficiencies during
the 18-month term of the interim approval, as part of the fully adopted
rules that the State will submit to support final approval of its I/M
SIP. So long as the State corrects these minor deficiencies prior to
final action on the State's I/M SIP, EPA concludes that failure to
correct the deficiencies in the short term is de minimis and will not
adversely affect EPA's ability to give interim approval to the proposed
I/M program.
Considering the implementation schedule provided by New York in its
March 27, 1996 submittal, EPA sought assurances that the State would
make every effort to meet the program start-up date. As a result, on
October 24, 1996, DEC Deputy Commissioner David Sterman wrote to Region
2 indicating that the date would be met. This letter will be made part
of the official docket.
Applicability--40 CFR 51.350
Section 182(c)(3) of the CAA and the federal I/M regulation require
all states with areas classified as being serious or worse ozone
nonattainment areas to implement an enhanced I/M program. The New York-
New Jersey-Long Island nonattainment area is classified as a severe
ozone nonattainment area and is required to implement an enhanced I/M
program as per section 182(c)(3) of the CAA and 40 CFR 51.350(2). In
addition, Bronx, Kings, Nassau, New York, Queens, Richmond, and
Westchester Counties are designated as a moderate nonattainment area
for carbon monoxide (CO) with a design value carbon monoxide
concentration greater than 12.7 ppm. As per 40 CFR 51.350(3), any area
classified as moderate CO nonattainment with a design value
concentration greater than 12.7 ppm shall also implement an enhanced I/
M program.
New York's proposed I/M regulation requires that the enhanced I/M
program be implemented in Bronx, Kings,
[[Page 60245]]
Nassau, New York, Queens, Richmond, Rockland, Suffolk (except Fisher's
Island) and Westchester Counties.
New York State plans to require that all other counties be covered
by an inspection program in accordance with the Ozone Transport Region
(OTR) low enhanced I/M Rule, which was published in the Federal
Register on July 25, 1996. Since this rule was only recently published,
the State could not be expected to submit an I/M SIP revision for these
counties pursuant to that rule by this time. As a result, New York will
submit a final I/M SIP revision for these counties at a later date, and
EPA will evaluate the adequacy of that program and take action at that
time.
The New York I/M legislative authority provides the legal authority
to establish the geographic boundaries. The program boundaries are
listed in Section 2.0 of the I/M SIP revision. EPA is proposing at this
time to find that the geographic applicability requirements are
satisfied for the counties subject to the original I/M Rule.
The federal I/M regulation requires that the State program shall
not sunset until it is no longer necessary. EPA interprets the federal
regulation as stating that a SIP which does not sunset prior to the
attainment deadline for each applicable area satisfies this
requirement. The New York I/M regulation provides for the program to
continue past the attainment dates for all applicable nonattainment
areas in the State. New York's submittal meets the applicability
requirements of the federal I/M regulation for interim approval.
Enhanced I/M Performance Standard--40 CFR 51.351
The federal I/M regulation requires that enhanced I/M programs must
be designed and implemented to meet or exceed a minimum performance
standard, which is expressed as emission levels in area-wide average
grams per mile (gpm) for certain pollutants. The performance standard
shall be established using local characteristics, such as vehicle mix
and local fuel controls, and the following model I/M program
parameters: Network type, start date, test frequency, model year
coverage, vehicle type coverage, exhaust emission test type, emission
standards, emission control device, evaporative system function checks,
stringency, waiver rate, compliance rate and evaluation date. The
emission levels achieved by the state's program design shall be
calculated using the most current version, at the time of submittal, of
the EPA mobile source emission factor model. At the time of the New
York submittal the most current version was MOBILE5a. Areas shall meet
the performance standard for the pollutants which cause them to be
subject to enhanced I/M requirements. In the case of ozone
nonattainment areas, the performance standard must be met for both
nitrogen oxides (NOx) and hydrocarbons (HC) as evaluated for the
year 2002. In the case of carbon monoxide nonattainment areas, the
performance standard must also be met for CO as evaluated for the year
2002. The New York submittal must meet the enhanced I/M performance
standard for HC, NOx and CO in all applicable I/M areas in New
York.
The New York submittal includes the following program design
parameters:
------------------------------------------------------------------------
Mobile5a parameter New York's program
------------------------------------------------------------------------
Network type................. Combination test-only, and test-and-
repair.
Start date................... 1998.
Test frequency............... Annual.
Model years.................. 25 years old and newer.
Vehicle type coverage........ LDGV, LDGT1, LDGT2, and HDGV.
Exhaust emission test type... NY-Test (short transient) on 1981 and
newer vehicles less than or equal to
8500 lbs gross vehicle weight rating
(GVWR) and single speed idle test on
1980 and older vehicles and vehicles
greater than 8500 lbs GVWR.
Emission standards........... 0.8/15/2.0 grams per mile (NY-Test) 1.2
percent CO, 220 ppm HC (Idle Test).
Emission control devices..... Air pump, fuel inlet restrictor, EGR,
PCV, TAC, catalyst.
Evaporative system function Missing gas cap and evaporative
checks. disablement.
Waiver rate.................. 3 percent.
Compliance rate.............. 98 percent.
Stringency (pre-1981 failure 20 percent.
rate).
Evaluation dates............. HC and NOX, July 2000; CO, July 2001.
------------------------------------------------------------------------
New York attempted to estimate the credit discount for this program
by modeling the State's program as both test-only and test-and-repair
and interpolating the results linearly to match the 81 percent claimed
effectiveness. EPA finds this method to be acceptable. However, the
analysis assumes that final pass/fail cutpoints will be used. In
reality, the State intends to use looser phase-in cutpoints at least
until the year 2000.
New York intends to phase in the pass/fail standards so that those
used during the initial cycles will not be as stringent as those the
program will eventually use. Preliminary modeling performed by EPA
indicates that the use of the looser standards will still allow the
State to meet its emission reduction obligations required by the 15
percent plan. However, EPA's modeling using corrected input parameters
shows that New York's program fails to meet the emission reduction
expectations of the ``high enhanced I/M performance standard'' for
hydrocarbons. It does, however, meet the ``low enhanced I/M performance
standard.'' Therefore, the State will be able to show that the program
at least meets the ``low enhanced I/M performance standard.'' If the
State's final program analysis indicates that use of these standards
will not generate the emission reductions needed to allow the State to
meet the goals of its 15 percent plan, New York may be required to use
tighter standards, or implement other control strategies.
EPA is proposing conditional interim approval of the State program
at this time consistent with the intent of the NHSDA that state I/M
programs be promptly approved and implemented for an 18-month period.
EPA proposes that this approval be conditioned upon the requirement
that the State conduct and submit the necessary modeling and
demonstration that the program will meet the performance standard. EPA
proposes that the modeling and demonstration be submitted by a date
certain within 12 months from conditional interim approval. If the
State fails to submit this new modeling within 12 months, EPA proposes
that
[[Page 60246]]
the conditional interim approval will convert to a disapproval upon a
letter from EPA indicating that the State has failed to submit the
modeling and demonstration of compliance with the performance standard
by the required date.
If the State cannot meet the enhanced I/M performance standard, the
State may demonstrate compliance with the low enhanced performance
standard established in 40 CFR 51.351(g). That section provides that
states may select the low enhanced performance standard if they have an
approved SIP for reasonable further progress in 1996, commonly known as
a 15 percent reduction SIP or 15 percent plan. In fact EPA approval of
15 percent plans has been delayed, and although EPA is preparing to
take action on 15 percent plans in the near future, it is unlikely that
EPA will have completed final action on most 15 percent plans prior to
the time EPA believes it would be appropriate to give final or
conditional interim approval to I/M programs under the NHSDA. New York
is currently reassessing its 15 percent plan to include the I/M program
changes. This re-assessment is to be based on the current program
design and its emission reduction benefit as of November 1999. If the
results indicate that the State will not achieve a 15 percent reduction
in emissions, New York may choose to either make I/M program
improvements that would allow the program to meet the enhanced I/M
performance standard or add other provisions to its overall control
plan.
In enacting the NHSDA, Congress evidenced an intent to have states
promptly implement I/M programs under interim approval status to gather
the data necessary to support state claims of appropriate credit for
alternative network design systems. By providing that such programs
must be submitted within a four month period, that EPA could approve I/
M programs on an interim basis based only upon proposed regulations,
and that such approvals would last only for an 18 month period, it is
clear that Congress anticipated both that these programs would start
quickly and that EPA would act quickly to give them interim approval.
Many states have designed a program to meet the low enhanced
performance standard, and have included that program in their 15
percent plan submitted to EPA for approval. Such states anticipated
that EPA would propose approval both of the I/M programs and the 15
percent plans on a similar schedule, and thus that the I/M programs
would qualify for approval under the low performance standard. EPA does
not believe it would be consistent with the intent of the NHSDA to
delay action on interim I/M approvals until the Agency has completed
action on the corresponding 15 percent plans. Although EPA acknowledges
that under its regulations final approval of a low enhanced I/M program
after the 18-month evaluation period would have to await approval of
the corresponding 15 percent plan, EPA believes that in light of the
NHSDA it can grant either final or conditional interim approval of such
I/M plans provided that the Agency has determined as an initial matter
that approval of the 15 percent plan is appropriate, and has issued a
proposed approval of that 15 percent plan.
The State plans to submit a revised 15 percent plan. It is possible
that New York's proposed I/M program may fall short of the enhanced I/M
performance standard but exceed the low enhanced performance standard.
If this is the case and the emission reductions provided by the I/M
program allow the State to fulfill the requirements of its 15 percent
plan, then EPA will review the 15 percent plan and propose action on it
shortly thereafter. Should EPA propose approval of the 15 percent plan,
EPA will proceed to take conditional interim approval action on the I/M
plan. EPA proposes in the alternative that if the Agency proposes
instead to disapprove the 15 percent plan, EPA would then disapprove
the I/M plan as well because the State would no longer be eligible to
select the low enhanced performance standard under the terms of 40 CFR
51.351(g).
Network Type and Program Evaluation--40 CFR 51.353
The federal I/M regulation requires that enhanced programs shall
include an ongoing evaluation to quantify the emission reduction
benefits of the program, and to determine if the program is meeting the
requirements of the CAA and the federal I/M regulation. The SIP shall
include details on the program evaluation and a schedule for submittal
of biennial evaluation reports, data from a state monitored or
administered mass emission test of at least 0.1 percent of the vehicles
subject to inspection each year, a description of the sampling
methodology, the data collection and analysis system, and the legal
authority enabling the evaluation program.
In order to determine whether the State I/M program meets the
enhanced I/M performance standard, and is therefore approvable, it must
submit modeling demonstrating that the programs achieve the required
emission reductions by the relevant dates. Because of delayed program
start up and program reconfiguration, the existing modeling used by the
State to demonstrate compliance with the performance standard is no
longer accurate, as it is based on start up and phase-in of testing and
cut-points that do not reflect the current program configuration or
start dates that the State will actually implement. EPA believes, based
on the available modeling and its own extrapolation of expected
emission reductions from the program, that the State program will at
least meet the low enhanced performance standard. However, the State
must conduct new modeling using the actual program configuration and
start dates to verify that the performance standard will in fact be
met. For example, phase-in cutpoints corresponding to the test-type and
correct program start-up dates should be included in the new modeling.
EPA is proposing conditional interim approval of the State's
program at this time consistent with the intent of the NHSDA that state
I/M programs be promptly approved and implemented. EPA proposes that
this approval be conditioned upon the requirement that the State
conduct and submit the necessary new modeling and demonstration that
the program will meet the performance standard, within 12 months from
conditional interim approval. If the State fails to submit this new
modeling within 12 months, EPA proposes that the conditional interim
approval will convert to a disapproval upon a letter from EPA
indicating that the State has failed to submit the modeling and
demonstration of compliance with the performance standard by the
required date.
In addition, the existing I/M Rule requires that the modeling
demonstrate that the state program has met the performance standard by
fixed evaluation dates. The first such date is January 1, 2000.
However, few state programs will be able to demonstrate compliance with
the performance standard by that date as a result of delays in program
start up and phase in of testing requirements. EPA believes that based
on the provisions of the NHSDA, the evaluation dates in the current I/M
Rule have been superseded. Congress provided in the NHSDA for state
development of I/M programs that would start significantly later than
the start dates in the current I/M Rule. Consistent with Congressional
intent, such programs by definition will not achieve full compliance
with the performance standard by the beginning of 2000.
[[Page 60247]]
As explained above, EPA has concluded that the NHSDA superseded the
start date requirements of the I/M Rule, but that states should still
be required to start their programs as soon as possible, which EPA has
determined would be November 15, 1997. Therefore, EPA believes that
pursuant to the NHSDA, the initial evaluation date should be January 1,
2002. This evaluation date will allow states to fully implement their
I/M programs and complete at least one cycle of testing at full
stringency cutpoints in order to demonstrate compliance with the
performance standard.
The State has proposed a decentralized test-and-repair enhanced I/M
program in the applicable geographic area. This program includes a
program evaluation in which 0.1 percent of the subject vehicle
population, at a minimum, will randomly receive a ``NY-TEST,'' IG240
emissions test. The final design of the evaluation program will be
based upon discussions with EPA and equipment vendors.
With the conditions described above, the New York submittal meets
the network type and program evaluation requirements of the federal I/M
regulation for interim approval.
Adequate Tools and Resources--40 CFR 51.354
The federal I/M regulation requires the state to demonstrate that
adequate funding of the program is available. A portion of the test fee
or separately assessed per vehicle fee shall be collected, placed in a
dedicated fund and used to finance the program. Alternative funding
approaches are acceptable if it is demonstrated that the funding can be
maintained. Reliance on funding from the state or local general fund is
not acceptable unless doing otherwise would be a violation of the
state's constitution. The SIP shall include a detailed budget plan
which describes the source of funds for personnel, program
administration, program enforcement, and purchase of equipment. The SIP
shall also detail the number of personnel dedicated to the quality
assurance program, data analysis, program administration, enforcement,
public education and assistance and other necessary functions.
New York's Clean Air Compliance Act establishes an administrative
fee of $2.00 per test which is deposited into the Mobile Source Account
of New York's Clean Air Fund. The fund is intended to support I/M
program activities including planning, implementation, and
administration. The projected budget and personnel requirements for the
DMV are $9,644,200 and 159 staff positions respectively. The projected
budget and personnel requirements for the DEC are $8,355,000 and 80
staff positions respectively.
The New York submittal meets the adequate tools and resources
requirements of the federal I/M regulation for interim approval.
Test Frequency and Convenience--40 CFR 51.355
The federal I/M regulation established an enhanced I/M performance
standard which is based on an annual test frequency; however, other
schedules may be approved if the performance standard is achieved. The
SIP shall describe the test year selection scheme, how the test
frequency is integrated into the enforcement process and shall include
the legal authority, regulations or contract provisions to implement
and enforce the test frequency. The program shall be designed to
provide convenient service to the motorist by ensuring short wait
times, short driving distances and regular testing hours.
New York's proposed I/M program requires annual inspections. The
current emission inspection population will be required to get an
enhanced inspection based upon the expiration of their emission/safety
inspection sticker. Information will be provided to the public six
months prior to the implementation of the enhanced program. The
inspection dates of all vehicles will be tracked by the DMV to assure
that the inspections take place. The DMV has determined that a minimum
of 2,500 testing lanes is required for motorist convenience. There are
approximately 5,000 test-and-repair inspection stations under the
current inspection program. The DMV also assumes that some test-only
and high volume lanes may provide additional throughput capability.
The New York submittal meets the test frequency and convenience
requirements of the federal I/M regulation for interim approval.
Vehicle Coverage--40 CFR 51.356
The federal I/M regulation establishes a performance standard for
enhanced I/M programs which is based on coverage of all 1968 and later
model year light duty vehicles and light duty trucks up to 8,500 pounds
GVWR, and includes vehicles operating on all fuel types. Other levels
of coverage may be approved if the necessary emission reductions are
achieved. Vehicles registered or required to be registered within the
I/M program area boundaries and fleets primarily operated within the I/
M program area boundaries and belonging to the covered model years and
vehicle classes comprise the subject vehicles.
According to the requirements of 40 CFR 51.356(B)(2), fleets may be
officially inspected outside of the normal I/M program test facilities,
if such alternatives are approved by the program administration.
However, fleet vehicles shall be subject to the same test requirements
using the same quality control standards as non-fleet vehicles and
shall be inspected in the same type of test network as other vehicles
in the state. Vehicles which are operated on federal installations
located within an I/M program area shall be tested, regardless of
whether the vehicles are registered in the state or local I/M area.
The federal I/M regulation requires that the SIP shall include: (a)
The legal authority or rule necessary to implement and enforce the
vehicle coverage requirement, (b) a detailed description of the number
and types of vehicles to be covered by the program and a plan for how
those vehicles are to be identified including vehicles that are
routinely operated in the area but may not be registered in the area,
and (c) a description of any special exemptions including the
percentage and number of vehicles to be impacted by the exemption. Such
exemptions shall be accounted for in the emissions reduction analysis.
New York State's submittal indicates that the DMV will review
registration files to identify vehicles for the enhanced emissions
testing program. The vehicle's registration is valid for two years and
the emission/safety inspection stickers are valid for one year.
Registration renewals will be denied to any vehicle that has not passed
an emission inspection. The following vehicles are exempt from
emissions testing requirements: Diesel and electric powered vehicles,
model year vehicles 26 years old and older, new vehicle exemption for
first two years, special class vehicles (i.e., historical, special
purpose commercial, all terrain vehicles, motorcycles, Classes A, B,
and C limited use motorcycles, farm dealer, motorcycle dealer,
transporter, all terrain dealers, light trailer, semi trailer, trailer,
house trailer, boat, snowmobile and certain vehicles classified by DMV
as custom or homemade prior to January 1997).
DMV will inventory federal fleet vehicles and other currently
unregistered vehicles. Inspection expiration dates will be assigned to
these vehicles. Enforcement will be accomplished through file checks
and
[[Page 60248]]
site visits. Fleets may inspect their own vehicles if they become
licensed inspection facilities and purchase the specified equipment.
State fleets will be assigned inspection expiration dates as will
federal vehicles. Registrations will be suspended for a vehicle found
uninspected. Some large fleets will be given permanent fleet
registrations. These will expire in October of every year and will be
electronically renewed if the vehicle passed an emission inspection
within the year. Fleet vehicles must pass the emissions inspection to
be eligible for reregistration. New York has an agreement with the New
York City Department of Environmental Protection and the New York City
Taxi and Limousine Commission to require I/M inspections three times
per year for medallion taxicabs.
The New York submittal meets the vehicle coverage requirements of
the federal I/M regulation for interim approval.
Test Procedures and Standards--40 CFR 51.357
The federal I/M regulation requires that written test procedures
and pass/fail standards shall be established and followed for each
model year and vehicle type included in the program. Test procedures
and standards are detailed in 40 CFR 51.357 and in the EPA document
entitled ``High-Tech I/M Test Procedures, Emission Standards, Quality
Control Requirements, and Equipment Specifications,'' EPA-AA-EPSD-IM-
93-1, dated April 1994. The federal I/M regulation also requires
vehicles that have been altered from their original certified
configuration (i.e., engine or fuel switching) to be subject to the
requirements of Sec. 51.357(d).
New York's test procedures are listed in the State's draft
technical specifications and the emissions inspection procedure manual,
appendices to its I/M SIP submittal. These procedures do not correspond
to EPA's procedures due to the differences in the testing equipment.
Under the State's test procedures, vehicles will be tested without
prior repair or adjustment at the test facility. Vehicle operators will
have access to the test area to observe the inspection in most
stations. Vehicles will be rejected from testing if the exhaust system
is missing or leaking or other unsafe conditions are evident. The test
procedure provides for a retest after repair for any vehicle that
failed the original test. All test procedures and standards including
visual equipment inspections for the chassis model year and type will
be applied for vehicles with switched engines. Altered vehicles from
one fuel type to another will be tested according to procedures and
standards of the current fuel type.
New York performed an evaluation of EPA's pressure and purge tests
and has determined that there are unresolved built-in problems with
these tests. Therefore, as an alternative to the pressure and purge
tests, New York proposes to initially include only gas cap testing and
expanded model year anti-tampering inspections. EPA is working with
states to resolve the problems which have been encountered with
implementation of the purge and pressure tests. When the problems are
resolved, New York will need to implement the purge and pressure tests
in order to receive the full amount of credit claimed for these tests
in its I/M SIP submittal.
New York's test procedures are based on the use of a transient
emissions test known as ``Inspection Grade 240 or IG240,'' for which
the State is now developing basic requirements. The State has submitted
draft equipment specifications and other supporting data that EPA is
now evaluating. This sets New York apart from other states considering
similar test procedures. Furthermore, New York has proven competence in
establishing new procedures in the past. Therefore, EPA intends to
allow the State, under a conditional interim approval, to proceed. It
should be noted, however, that if at any time the State and EPA
determine that the level of emission reduction credits granted to this
test differs from the reductions actually achieved, New York will be
required to re-evaluate its program assumptions and submit results to
EPA.
Within 30 days of the publication of this notice, New York must
submit a commitment to submit final test procedures and standards by a
date certain which is no later than January 31, 1997. It is essential
that the State submit final test procedures and standards no later than
this date because a significant lead time is necessary in order for the
program to begin testing as planned. If the State fails to commit
within 30 days to submit approvable final test procedures and standards
for the IG240 test as specified above, then EPA proposes in the
alternative to disapprove the New York I/M SIP. If the State makes the
commitment but this condition is not met, EPA will issue a letter to
the State indicating that the conditional interim approval has been
converted to a disapproval.
Test Equipment--40 CFR 51.358
The federal I/M regulation requires that computerized test systems
be used for performing any measurement on subject vehicles. The federal
I/M regulation also requires that the state SIP submittal include
written technical specifications for all test equipment used in the
program. The specifications shall describe the emission analysis
process, the necessary test equipment, the required features, and
written acceptance testing criteria and procedures.
The New York submittal contains the written draft technical
specifications for the test equipment to be used in the program
including an outline of the software specifications. The specifications
require the use of computerized test systems. Equipment tampering,
computerization, system lockouts, and the required data link
specifications are being developed by the DMV. Since these documents
have not been finalized, New York's submittal of the test equipment
specifications cannot be considered complete.
Within 30 days of the publication of this notice, New York must
submit a commitment to submit final test equipment specifications by a
date certain which is no later than January 31, 1997. It is essential
that the State submit final test equipment specifications no later than
this date because a significant lead time is necessary in order for the
program to begin testing as planned. If the State fails to commit
within 30 days to submit approvable final test equipment specifications
for the IG240 test as specified above, then EPA proposes in the
alternative to disapprove the New York I/M SIP. If the State makes the
commitment but this condition is not met, EPA will issue a letter to
the State indicating that the conditional interim approval has been
converted to a disapproval.
Quality Control--40 CFR 51.359
The federal I/M regulation requires that states implement quality
control measures to insure that emission measurement equipment is
calibrated and maintained properly, and that inspection, calibration
records, and control charts are accurately created, recorded and
maintained.
The New York submittal contains quality control measures for the
emission measurement equipment, record keeping requirements and
measures to maintain the security of all documents used to establish
compliance with the inspection requirements.
[[Page 60249]]
However, this portion of the New York submittal does not include a
description of the quality control requirements as set forth in
Sec. 51.359 of the federal I/M regulation.
This is a minor deficiency and must be corrected in the State's
final I/M SIP revision submitted at the end of the 18-month interim
period.
Waivers and Compliance Via Diagnostic Inspection--40 CFR 51.360
The federal I/M regulation allows for the issuance of a waiver,
which is a form of compliance with the program requirements that allow
a motorist to comply without meeting the applicable test standards. For
enhanced I/M programs, an expenditure of at least $450 in repairs,
adjusted annually to reflect the change in the Consumer Price Index
(CPI) as compared to the CPI for 1989, is required in order to qualify
for a waiver. Waivers can only be issued after a vehicle has failed a
retest performed after all qualifying repairs have been made. Any
available warranty coverage must be used to obtain repairs before
expenditures can be counted toward the cost limit. Tampering related
repairs shall not be applied toward the cost limit. Repairs must be
appropriate to the cause of the test failure. Repairs for 1980 and
newer model year vehicles must be performed by a recognized repair
technician. The federal I/M regulation allows for compliance via a
diagnostic inspection after failing a retest on emissions and requires
quality control of waiver issuance. The SIP must set a maximum waiver
rate and must describe corrective action that would be taken if the
waiver rate exceeds that committed to in the SIP.
New York's proposed I/M program will allow the issuance of a $450
waiver adjusted annually according to the Consumer Price Index
beginning in 1998. To be eligible for a waiver, the inspection facility
must verify that: Appropriate emissions repairs were performed, the
vehicle emission system has not been tampered with, the safety
inspection has been passed, repairs or adjustments have not resulted in
the retest being invalid or the acceptance of pollutants in excess of
their limits, and documented repair costs were at least as much as the
cost amount. The State has estimated a waiver rate of 3 percent of the
initially failed vehicles. In the event the actual waiver rate exceeds
the estimated waiver rate of 3 percent used for estimating the I/M
program's emission reduction credits, the State will take corrective
action. No hardship time extensions nor compliance via diagnostic
inspection will be allowed.
Although New York's program does include the $450 initial amount,
it is not clear from the submitted I/M SIP revision whether the CPI
adjustments account for increases since 1989, as required by section
502(b)(1)(B)(v)(II) of the CAA and the federal I/M regulation. EPA
understands the State's reluctance to implement the full CPI adjusted
amount at program start-up and offered to postpone it consistent with
the intent of the NHSDA that I/M programs be allowed to start in 1997.
EPA believes, that consistent with its interpretation that the start
dates and evaluation dates in EPA's I/M Rule have been extended by
approximately two years by the NHSDA, the deadline for the full
implementation of the waiver can also be extended by two years. As a
result, the repair expenditure waiver must be fully adjusted by the
increase in the CPI since 1989 no later than January 1, 2000.
This is a major program element required under the CAA and the I/M
Rule. Therefore, New York must, within 30 days of the publication of
this notice, submit a commitment to correct this major deficiency by a
date certain within 12 months of the publication of the conditional
interim approval. If the State fails to submit the revised repair
expenditure waiver within 12 months, EPA proposes that the conditional
interim approval will convert to a disapproval upon a letter from EPA
indicating that the State has failed to submit the revised repair
expenditure waiver by the required date.
Motorist Compliance Enforcement--40 CFR 51.361
The federal I/M regulation requires that compliance shall be
ensured through the denial of motor vehicle registration in enhanced I/
M programs unless an exception for use of an existing alternative is
approved. An enhanced I/M area may use either sticker-based enforcement
programs or computer-matching programs if either of these programs were
used in the existing program that was operating prior to passage of the
CAA, and if it can be demonstrated that the alternative has been more
effective than registration denial. The SIP shall provide information
concerning the enforcement process, legal authority to implement and
enforce the program, and a commitment to a compliance rate to be used
for modeling purposes and to be maintained in practice.
Part 301 of New York State's Vehicle and Traffic Law provides the
legal authority to implement registration denial motorist enforcement.
New York's I/M SIP revision commits to a compliance rate of 98 percent
which was used in the performance standard modeling demonstration. The
State's submittal meets the motorist compliance enforcement
requirements of the federal I/M regulation for interim approval.
Motorist Compliance Enforcement Program Oversight--40 CFR 51.362
The federal I/M regulation requires that the enforcement program
shall be audited regularly and shall follow effective program
management practices, including adjustments to improve operation when
necessary. The I/M SIP revision shall include quality control and
quality assurance procedures to be used to insure the effective overall
performance of the enforcement system. An information management system
shall be established which will characterize, evaluate and enforce the
program.
New York's registration system is computer-based and controlled by
a DMV computer in Albany. The accuracy of the inspection data input
into the system will be assured by bar coded vehicle information on the
registration which is attached to the vehicle's windshield. If
incorrect information is entered into the computer, a match would not
be found and the inspection would not be allowed. New York has trained
personnel and written procedures for the compliance enforcement
program. Staff will be disciplined, dismissed or prosecuted if
discovered engaged in any improprieties. The DMV will annually conduct
two program audits and one covert investigation at each inspection
station. New York will determine the equipment audit frequency with the
development of the equipment specifications.
New York's submittal meets the motorist compliance enforcement
program oversight requirements of the federal I/M regulation for
interim approval.
Quality Assurance--40 CFR 51.363
The federal I/M regulation requires that an ongoing quality
assurance program shall be implemented to discover, correct and prevent
fraud, waste, and abuse in the program. The program shall include
covert and overt performance audits of the inspectors, audits of
station and inspector records, equipment audits, and formal training of
all state I/M enforcement officials and auditors. A description of the
quality assurance program which includes written procedure manuals on
the above discussed items must be submitted as part of the I/M SIP
revision.
[[Page 60250]]
Details of New York's quality assurance program have not been
developed and, therefore, were not provided in the I/M SIP revision
submittal.
This is a minor deficiency and must be corrected in the State's
final I/M SIP revision submitted at the end of the 18-month interim
period.
Enforcement Against Contractors, Stations and Inspectors--40 CFR 51.364
The federal I/M regulation requires that enforcement against
licensed stations, contractors and inspectors shall include swift,
sure, effective, and consistent penalties for violation of program
requirements. The federal I/M regulation requires the establishment of
minimum penalties for violations of program rules and procedures that
can be imposed against stations, contractors and inspectors. The legal
authority for establishing and imposing penalties, civil fines, license
suspensions and revocations must be included in the I/M SIP revision.
State quality assurance officials shall have the authority to
temporarily suspend station and/or inspector licenses immediately upon
finding a violation that directly affects emission reduction benefits,
unless constitutionally prohibited. An official opinion explaining any
state constitutional impediments to immediate suspension authority must
be included in the I/M SIP revision submittal. The I/M SIP revision
shall describe the administrative and judicial procedures and
responsibilities relevant to the enforcement process, including which
agencies, courts and jurisdictions are involved, who will prosecute and
adjudicate cases and the resources and sources of those resources which
will support this function.
Part 79 of 15NYCRR, Motor Vehicle Inspection Regulations, gives the
DMV authority for enforcement against contractors, stations and
inspectors. The DMV will utilize triggers to identify violating
stations and inspectors. If an inspector is found to be incompetent,
that inspector will not be allowed to perform inspections until
successful completion of a written examination. Failure of this
examination would result in the revocation of the inspector's license.
Stations or inspectors found committing serious violations will have
their licenses suspended pending a hearing and will be expeditiously
moved through the hearing process. A penalty of $350 per violation will
be assessed upon the inspection station and/or the inspector for
violations of the inspection requirements. Records of all enforcement
activities will be kept for five years and reported on an annual basis.
EPA's I/M Rule requires monetary penalties for gross violations to
be at least $100 or five times the inspection fee, whichever is higher.
New York has proposed a $20 inspection fee, making the minimum per
violation penalty $100. Since New York's penalty schedule exceeds this
amount, it is acceptable. The State's submittal meets the enforcement
against contractors, stations and inspectors requirements of the
federal I/M regulation for interim approval.
Data Collection--40 CFR 51.365
Accurate data collection is essential to the management, evaluation
and enforcement of an I/M program. The federal I/M regulation requires
data to be gathered on each individual test conducted and on the
results of the quality control checks of test equipment required under
40 CFR 51.359.
New York's proposed I/M program includes the elements of the data
collection elements in the federal I/M regulation. New York will hire a
contractor for data management. A central database will be established
to support real-time and batch electronic transmissions from the
testing facilities. The data manager will supply batch data to DEC.
New York's submittal meets the data collection requirements of the
federal I/M regulation for interim approval.
Data Analysis and Reporting--40 CFR 51.366
Data analysis and reporting are required to allow for monitoring
and evaluation of the program by the state and EPA. The federal I/M
regulation requires annual reports to be submitted which provide
information and statistics and summarize activities performed for each
of the following programs: testing, quality assurance, quality control
and enforcement. These reports are to be submitted by July and shall
provide statistics for the period of January to December of the
previous year. A biennial report shall be submitted to EPA which
addresses changes in program design, regulations, legal authority,
program procedures and any weaknesses in the program found during the
two-year period and how these problems will be or were corrected.
New York's submittal provides analysis and reporting descriptions
as well as an acceptable schedule for submittal of such reports.
Therefore, the State's submittal meets the data analysis and reporting
requirements of the federal I/M regulation for interim approval.
Inspector Training and Licensing or Certification--40 CFR 51.367
The federal I/M regulation requires all inspectors to be formally
trained and licensed or certified to perform inspections.
Prior to the implementation of the enhanced I/M program, New York
will require that all currently certified emission inspectors be
relicensed for the performance of the enhanced test. Inspectors will be
recertified every three years.
New York's revised inspector certification program is currently
under development.
This is a minor deficiency and must be corrected in the State's
final I/M SIP revision submitted at the end of the 18-month interim
period.
Public Information and Consumer Protection--40 CFR 51.368
The federal I/M regulation requires the I/M SIP revision to include
public information and consumer protection programs.
New York's public information program is under development. The
program will provide information on the benefits of an enhanced I/M
program through public service address messages, registration inserts,
pamphlets, vehicle inspection demonstrations, auto show participation,
and vehicle repair effectiveness demonstrations. Motorists that fail
the test will be provided a diagnostic report by the inspection
station. The DMV will protect the public from fraud and abuse by
inspectors, mechanics and others involved in the I/M program. A repair
form will be required to be completed for each vehicle that fails the
test and submitted to the DMV for the development of a database.
During the comment period for the November 5, 1992 federal I/M
regulation, EPA received a number of comments expressing concerns about
consumer protection with regard to motor vehicle repairs. As a result,
Sec. 51.368 of the federal I/M regulation includes a requirement for
inspection programs to collect, and make available to motorists, data
on the effectiveness of repairs performed by repair stations on
vehicles that fail the initial test. New York's submittal includes a
requirement for motorists with failing vehicles to return a repair form
indicating the types of repairs made and whether or not they were
successful. However, it makes no provision for motorists to have access
to the compiled data either through
[[Page 60251]]
periodic reports or through some form of specially generated printout
indicating which stations in the motorist's vicinity are qualified to
make the needed repairs.
Since the details of New York's public information program are
still under development and it does not include provision for motorists
to have access to the compiled data, New York must make corrections to
this section of the I/M SIP revision.
This is a minor deficiency and must be corrected in the State's
final I/M SIP revision submitted at the end of the 18-month interim
period.
Improving Repair Effectiveness--40 CFR 51.369
Effective repairs are the key to achieving program goals. The
federal I/M regulation requires States to take steps to ensure that the
capability exists in the repair industry to repair vehicles. The I/M
SIP revision 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 in the
federal I/M regulation, and a description of the repair technician
training resources available in the community.
New York is claiming only 50 percent credit for its technician
training program because although improvements will be made to the
program, licensing or certification will not be required for the
mechanics to perform repairs on the vehicles. In addition, New York
proposes to phase-in the emissions test cutpoints to allow the repair
industry time to adapt to the new tests and obtain the enhanced
training. The DMV will provide information to repair technicians
related to the diagnosis and repair of vehicles that fail the I/M test
and monitor the performance of the test-and-repair facilities. The
State will be developing improvements to the current training
curriculum related to the diagnosis and repair of vehicles failing the
I/M test.
New York's submittal meets the improving repair effectiveness
requirements of the federal I/M regulation for interim approval.
Compliance With Recall Notices--40 CFR 51.370
The federal I/M regulation requires states to establish methods to
ensure that vehicles that are subject to enhanced I/M and are included
in an emission related recall receive the required repairs prior to
completing the emission test and/or renewing the vehicle registration.
Under its proposed I/M program the State will notify the motorist
that his/her vehicle appears on a recall list and that the vehicle must
be repaired prior to its inspection and renewal. Upon arrival at the
testing facility, the on-line system will alert the inspector that the
vehicle has been recalled. The motorist will be required to show
documentation of the vehicle's repairs.
New York's submittal meets the compliance with recall notices
requirements of the federal I/M regulation for interim approval.
On-Road Testing--40 CFR 51.371
The federal I/M regulation requires on-road testing in enhanced I/M
areas. The use of either remote sensing devices (RSD) or roadside
pullovers including tailpipe emission testing can be used to meet the
requirements of the federal I/M regulation. The program must include
on-road testing of 0.5 percent of the subject fleet or 20,000 vehicles,
whichever is less, in the nonattainment area or the enhanced I/M
program area. Motorists that have passed an emission test and are found
to be high emitters as a result of an on-road test shall be required to
pass an out-of-cycle test.
New York will utilize RSD to perform on-road testing of 20,000
vehicles annually in the enhanced I/M area. This will be used to
evaluate the performance of the I/M program. The State is not ready to
commit to identifying the pass/fail cutpoints that will be utilized in
the RSD program until a vehicle database is developed and evaluated
with New York's potential RSD contractor. Passing an out-of-cycle test
is not required. Therefore, New York must make changes to the element
of its I/M SIP revision.
This is a minor deficiency and must be corrected in the State's
final I/M SIP revision submitted at the end of the 18-month interim
period.
State Implementation Plan Submissions/Implementation Deadlines--40 CFR
51.372-51.373
These sections of the federal I/M regulation require that the state
outline program milestones and provide an implementation schedule.
New York's I/M SIP revision submittal contains the proposed
enhanced I/M program regulations. Draft specifications, procedures and
requests for proposal (RFPs) for equipment and contractor services have
not been developed. Licensing and certification of inspectors will be
performed prior to the start of the program. Mandatory testing is
scheduled to begin in January of 1998. Full stringency cutpoints may be
implemented in January 2000.
With the conditions described above, New York's submittal meets the
requirements under these sections of the federal I/M regulation for
interim approval.
III. Discussion for Rulemaking Action
Today's notice of proposed conditional interim approval begins a
30-day time period for the State to make a commitment to EPA to correct
the major deficiencies of the I/M SIP revision that EPA has identified,
by dates certain as described in this notice. These major deficiencies
are:
Waiver Expenditure Requirements
Many of the I/M programs currently operating include waivers for
vehicles that cannot pass the applicable pass/fail standards, usually
with a minimum expenditure requirement. Congress included such a
requirement in the CAA, calling for owners of vehicles that fail an
initial emissions inspection to spend at least $450, adjusted annually
by the Consumer Price Index (CPI) as specified in Title V of the CAA,
before a waiver can be granted. Title V clearly states that CPI
adjustments must begin as of 1989. Although New York's program does
include the $450 initial amount, it is not clear from the submitted I/M
SIP revision whether the CPI adjustments account for increases since
1989, as required. The cost waiver, including the application of the
annual CPI adjustment retroactive to 1989, must be fully in place by
January 1, 2000.
Performance Standard Modeling
To determine whether the proposed I/M program will reduce vehicle
emissions sufficiently as defined by the 15 percent plan for the area
it is necessary to calculate the expected vehicle emissions taking into
account all the aspects of the program. Parameters such as when the
program begins, which vehicles are tested, and what type of test will
be used have a significant impact on the level of emission reductions
obtained. Section 51.351 of the federal I/M regulation requires that
states submit, along with their proposed programs, modeling assumptions
and results using EPA's most recent version of the mobile emissions
model; currently MOBILE5a.
New York's submittal includes such modeling. However, it includes
assumptions for a test method that is still under development and for
which no emission reduction credits have been established. New York
assumed that the proposed test procedure has an effectiveness equal to
the median
[[Page 60252]]
between a two-mode Acceleration Simulation Mode (ASM) test and the
IM240. The State acknowledges that at this time there is a limited
basis for assuming this level of effectiveness and has committed to
gathering the data required to support this assumption.
Test Procedures, Standards and Equipment
As previously stated, the test used to analyze vehicle emissions
has a significant impact on the program's effectiveness. Over the two
decades since I/M programs have been in operation, EPA has collected a
great deal of information that indicate which test procedures are more
effective. Since I/M programs comprise a large portion of the
reductions expected from overall ozone and carbon monoxide reduction
plans, it is important for EPA to review program parameters before
testing begins. As a result, states may be able to avoid program
development problems.
Sections 51.357 and 51.358 of the federal I/M regulation require
states to provide a clear step-by-step description of the test
equipment, test process, and the pass/fail standards to be used. Since
New York's test has not been fully developed, the State has yet to
outline its test procedure. This must be done well in advance of
program start.
Within 30 days of publication of this notice, the State must make a
commitment to EPA to correct these major deficiencies, by dates
certain. In the case of the test procedures, standards and equipment
specifications EPA is requiring that the State submit final versions of
these materials by January 31, 1997. EPA believes that the State must
finalize these elements far in advance of the planned start date for
the program so that equipment may be purchased and installed and the
program's start date is not jeopardized. In the case of the performance
standard modeling and the waiver expenditure requirements, EPA is
requiring that the State submit the required modeling and the revised
waiver expenditure requirements no later than 12 months from the date
of the publication of the notice of conditional interim approval. If
the State does not make such a commitment within 30 days, EPA today is
proposing in the alternative that this SIP revision be disapproved.
If EPA disapproves this submission or if the State does not correct
the major deficiencies identified above and implement the interim
program so that the conditional interim approval converts to a
disapproval pursuant to section 110(k), EPA, under section 179(a)(2),
must apply one of the sanctions set forth in section 179(b) within 18
months of such disapproval or finding. Section 179(b) provides two
sanctions available to the Administrator: highway funding and the
imposition of emission offset requirements. In EPA's August 4, 1994
final sanctions rule, (See 59 FR 39832) the sequence of mandatory
sanctions for findings and disapprovals made pursuant to section 179 of
the CAA was finalized. This rulemaking states that the section
179(b)(2) offset sanction applies in an area 18 months from the date
when the EPA makes a finding or a disapproval under section 179(a) with
regard to that area. Furthermore, the section 179(b)(1) highway funding
restrictions apply in an area six months following application of the
offset sanction. This nondiscretionary process for imposing and lifting
sanctions is set forth at 40 CFR 52.31.
If New York makes the commitment within 30 days, EPA's conditional
interim approval of the plan will last until the date by which New York
has committed to cure all of the deficiencies. EPA expects that within
this period the State will not only correct the deficiencies as
committed to by the State, but that the State will also begin program
start-up by November 15, 1997. If New York does not correct the major
deficiencies and implement the interim program by the required dates,
EPA is proposing in this notice that the conditional interim approval
will be converted to a disapproval after a finding letter is sent to
the State.
IV. Explanation of the Interim Approval
At the end of the 18-month interim period, the approval status for
this program will automatically lapse pursuant to the NHSDA. It is
expected that New York will at that time be able to make a
demonstration of the program's effectiveness using the appropriate
evaluation criteria. Since EPA expects that these programs will have
started by November 15, 1997, New York will have at least six months of
program data that can be used for the demonstration. If New York fails
to provide a demonstration of the program's effectiveness to EPA within
18 months of the conditional interim approval, the interim approval
will lapse, and EPA will be forced to disapprove the State's I/M SIP
revision. If New York's program evaluation demonstrates a lesser amount
of emission reductions actually realized than were claimed in the
State's previous submittal, EPA will adjust the State's emission
reduction credits accordingly, and use this information to act on the
State's final I/M program.
V. Further Requirements for Permanent I/M SIP Approval
At the end of the 18-month interim period, which is started by the
conditional interim approval of the I/M SIP revision, final approval of
the State's plan will be granted based upon the following criteria:
(1) New York has complied with all the conditions of its commitment
to EPA,
(2) EPA's review of New York's program evaluation confirms that the
appropriate amount of program credit was claimed by the State and was
achieved with the interim program,
(3) Final program regulations are submitted to EPA, and
(4) New York's I/M program meets all of the requirements of EPA's
I/M Rule, including those deficiencies found de minimis for purposes of
interim approval.
VI. EPA's Evaluation of the Interim Submittal
EPA is proposing a conditional interim approval of the New York I/M
SIP revision which was submitted on March 27, 1996. EPA is soliciting
public comments on the issues discussed in this notice or on other
relevant matters. These comments will be considered before taking
subsequent action. Interested parties may participate in the federal
rulemaking procedure by submitting written comments to the EPA Regional
office listed in the ADDRESSES section of this notice.
Proposed Action
EPA is proposing conditional interim approval of this revision to
the New York SIP for an enhanced I/M program based on certain
conditions.
Major Deficiencies
(1) New York must commit within 30 days of the publication of this
notice to implement the $450 waiver plus CPI adjustment retroactive to
1989 no later than January 1, 2000. This commitment must be fulfilled
by a date certain, but no later than 12 months after conditional
interim approval.
(2) New York must commit within 30 days of the publication of this
notice to submit modeling results once acceptable test procedures and
credits have been developed for IG240. This commitment must be
fulfilled by a date certain, but no later than 12 months after
conditional interim approval.
(3) New York must commit within 30 days of the publication of this
notice to submit IG240 equipment, test
[[Page 60253]]
procedures, standards and equipment specifications. Because early
finalization of these elements is critical to the program being able to
start by the planned date, these elements must be submitted by January
31, 1997.
Minor Deficiencies
New York must correct these minor deficiencies in its final
regulations to be submitted after the 18-month interim period.
(1) New York's must submit quality control measures in accordance
with the requirements set forth in 40 CFR Part 51.359.
(2) New York must complete the development of the inspector
training and certification program.
(3) New York must finalize plans for its data collection system.
(4) New York must complete the public information program,
including the repair station report card.
(5) New York must commit to perform on-road testing in accordance
with the requirements set forth in section 51.371 of the federal I/M
regulation.
(6) New York must complete the development of the quality assurance
program.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
Administrative Requirements
Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., 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, 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.
Conditional approvals of SIP submittals 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 CAA, preparation of a flexibility
analysis would constitute federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
If the 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 this disapproval action does not have a significant impact on a
substantial number of small entities because it does not remove
existing requirements nor does it substitute a new federal requirement.
Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
private sector, of $100 million or more. Under section 205, EPA must
select the most cost-effective and least burdensome alternative that
achieves the objectives of the rule and is consistent with statutory
requirements. Section 203 requires EPA to establish a plan for
informing and advising any small governments that may be significantly
or uniquely impacted by the rule.
EPA has determined that the approval action proposed does not
include a federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This federal action approves pre-
existing requirements under State or local law, and imposes no new
federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
The Administrator's decision to approve or disapprove the SIP
revision will be based on whether it meets the requirements of section
110(a)(2)(A)-(K) and part D of the Clean Air Act, as amended, and EPA
regulations in 40 CFR Part 51.
List of Subjects in 40 CFR Part 51
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and record keeping requirements,
Volatile organic compounds.
Authority: 42 U.S.C. 7401-7671q.
Dated: November 6, 1996.
William J. Muszynski,
Acting Regional Administrator.
[FR Doc. 96-29660 Filed 11-26-96; 8:45 am]
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