[Federal Register Volume 62, Number 94 (Thursday, May 15, 1997)]
[Rules and Regulations]
[Pages 26745-26749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12790]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[VA 056-5023; FRL-5826-2]
Approval and Promulgation of Air Quality Implementation Plans;
Commonwealth of Virginia; Enhanced Motor Vehicle Inspection and
Maintenance Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final rule.
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SUMMARY: EPA is granting conditional interim approval of a State
Implementation Plan (SIP) revision submitted by Virginia. This revision
establishes and requires the implementation of an enhanced inspection
and maintenance (I/M) program in the following Virginia Counties:
Arlington, Fairfax, Fauquier, Loudoun, Prince William, and Stafford,
and the Cities of Alexandria, Fairfax, Falls Church, Manassas, and
Manassas Park. The intended effect of this action is to conditionally
approve the Commonwealth's proposed enhanced I/M program for an interim
period to last 18 months, based upon the Commonwealth's good faith
estimate of the program's performance. This action is being taken under
section 110 of the Clean Air Act and section 348 of the National
Highway Systems Designation Act.
EFFECTIVE DATE: This final rule is effective on June 16, 1997.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the
Air, Radiation, and Toxics Division, U.S. Environmental Protection
Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania
19107. They are also available for inspection at the Virginia
Department of Environmental Quality, 629 East Main Street, Richmond,
Virginia 23219.
FOR FURTHER INFORMATION CONTACT: Catherine L. Magliocchetti, by
telephone at: (215) 566-2174, or via e-mail at: magliocchetticatherine
@epamail.epa.gov. The mailing address is U.S. EPA Region III, 841
Chestnut Street, Philadelphia, PA, 19107.
SUPPLEMENTARY INFORMATION:
I. Table of Contents
II. Background
III. Public Comments/Response to Comments
IV. Conditional Interim Approval
V. Final Rulemaking Action
VI. Further Requirements for Full I/M SIP Approval
VII. Administrative Requirements
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Unfunded Mandates
D. Submission to Congress and the General Accounting Office
E. Petitions for Judicial Review
II. Background
On November 6, 1996 (61 FR 57343), EPA published a notice of
proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR
proposed conditional interim approval of Virginia's enhanced inspection
and maintenance program, submitted to satisfy the applicable
requirements of both the Clean Air Act (CAA) and the National Highway
Systems Designation Act (NHSDA). The formal SIP revision was submitted
by the Virginia Department of Environmental Quality on March 27, 1996.
As described in that notice, 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 that 18-month period, 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
on or before November 15, 1997, so that at least six months of
operational program data can be collected to evaluate the interim
programs. EPA 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. If the
Commonwealth fails to start its program according to this schedule,
this conditional interim approval granted under the provisions of the
NHSDA will convert to a disapproval after a finding letter is sent to
the Commonwealth. Unlike the other specified conditions of this
rulemaking, which are explicit conditions under section 110(k)(4) of
the CAA and which will trigger an automatic disapproval should the
Commonwealth fail to meet its commitments, the startdate provision will
trigger a disapproval upon EPA's
[[Page 26746]]
notification to the Commonwealth by letter that the startdate has been
missed. This letter will notify the Commonwealth that this rulemaking
action has been converted to a disapproval and that the sanctions
clocks associated with this disapproval has been triggered as a result
of this failure. The startdate condition is not imposed pursuant to a
commitment to correct a deficient SIP under section 110(k)(4); EPA is
imposing the startdate condition under its general SIP approval
authority of section 110 (k)(3), which does not require automatic
conversion.
The program evaluation to be used by the Commonwealth during the
18-month interim period must be acceptable to EPA. The Environmental
Council of States (ECOS) group has developed such a program evaluation
process which includes both qualitative and quantitative measures, and
this process has been deemed acceptable to EPA. For the quantitative
long term measure, the core requirement is that a mass emission
transient test (METT) be performed on 0.1% of the subject fleet, as
required by the I/M Rule at 40 CFR 51.353 and 51.366. EPA has
determined that METT evaluation testing is not precluded by NHSDA, and
therefore, is still required to be performed by states implementing I/M
programs under the NHSDA and the CAA.
As per the NHSDA requirements, this conditional interim rulemaking
will expire on November 16, 1998. A full approval of Virginia's final
I/M SIP revision (which will include the Commonwealth's program
evaluation and final adopted state regulations) is still necessary
under section 110 and under sections 182, 184 or 187 of the CAA. After
EPA reviews the Commonwealth's submitted program evaluation and
regulations, final rulemaking on the Commonwealth's full SIP revision
will occur.
Specific requirements of the Virginia enhanced I/M SIP and the
rationale for EPA's proposed action are explained in the NPR and will
not be restated here.
III. Public Comments/Response to Comments
No comments were received with regard to this notice during the
comment period.
IV. Conditional Interim Approval
Under the terms of EPA's November 6, 1996 proposed interim
conditional approval rulemaking, the Commonwealth was required to make
commitments (within 30 days) to remedy four major deficiencies with the
I/M program SIP (as specified in the NPR), within twelve months of
final interim approval. In a December 4, 1996 letter to EPA from Thomas
H. Hopkins, Director of the Virginia Department of Environmental
Quality, Virginia commits to satisfy the major deficiencies cited in
the NPR, by dates certain specified in the letter. Since EPA is in
receipt of the Commonwealth's commitments, EPA is today taking final
conditional approval action upon the Virginia I/M SIP, under section
110 of the CAA. As discussed in detail later in this notice, this
approval is being granted on an interim basis, for an 18-month period
under authority of the NHSDA.
The conditions for approvability of the SIP are as follows:
(1) The Commonwealth must perform and submit the new modeling
demonstration that illustrates how its program will meet the relevant
enhanced performance standard, by September 15, 1997 (a date specified
by the Commonwealth in the commitment letter to EPA). The
Commonwealth's revised modeling must correspond to the actual I/M
program configuration, including actual test methods and start dates
for all I/M program tests, actual cutpoints to be in-place for the
evaluation year, and all other program assumptions as they exist in the
SIP. EPA expects that Virginia's new modeling demonstration will be
done using an approved EPA model in order to meet this condition.
Virginia should refer to EPA's guidance on modeling to determine which
version of the model is appropriate and suitable for Virginia's use in
meeting this commitment.
(2) The Commonwealth must submit to EPA as a SIP amendment, by
September 15, 1997 (a date specified by the Commonwealth in the
commitment letter to EPA), the final Virginia I/M regulation which
requires a METT-based evaluation be performed on 0.1% of the subject
fleet each year as per 40 CFR section 51.353(c)(3) and which meets all
other program evaluation elements specified in 40 CFR section
51.353(c), including a program evaluation schedule, a protocol for the
testing, and a system for collection and analysis of program evaluation
data.
(3) By September 15, 1997 (a date specified by the Commonwealth in
the commitment letter to EPA), Virginia must adopt and submit a final
Virginia I/M regulation which requires and which specifies detailed,
approvable test procedures and equipment specifications for all of the
evaporative and exhaust tests to be used in the enhanced I/M program.
The Commonwealth has committed to adopt approvable test procedures,
standards and specifications for its two-mode ASM test. The draft
regulations submitted to EPA with the commitment letter, containing the
two-mode ASM procedures and specifications do not comply in all
respects with EPA's ASM technical guidance EPA-AA-RSPD-IM-96-2. EPA
expects that Virginia will remedy any remaining discrepancies between
its regulation and approved EPA specifications by the September 15,
1997 date.
In addition to the above conditions, the Commonwealth must correct
several minor, or de minimus, deficiencies related to CAA requirements
for enhanced I/M. Although satisfaction of these deficiencies does not
affect the conditional interim approval status of the Commonwealth's
rulemaking, these deficiencies must be corrected in the final I/M SIP
revision, to be submitted at the end of the 18-month interim period:
(1) The SIP lacks a detailed description of the elements to satisfy
the test frequency requirements required under 40 CFR section
51.355(a), particularly regarding scheduling of vehicles for testing
and the selection scheme for the biennial program inspections, as well
as a description of how test frequency will be integrated with the
registration denial motorist enforcement process;
(2) The SIP does not fully account for all exceptions from testing
in the emissions reductions analysis. The state must account for
testing exceptions and account for them in their performance standard
modeling demonstration, per 40 CFR section 51.356(b)(2);
(3) Virginia must develop quality control procedures, test
equipment specifications, quality control procedures manual, or other
ordinance or documents to satisfy all the quality control requirements
of 40 CFR section 51.359;
(4) Virginia must amend its regulation to allow that waivers be
issued only by a single contractor or by the Commonwealth, per 40 CFR
section 51.360(c)(1);
(5) The final SIP submittal must include the procedures document
that adequately addresses the means by which the Commonwealth will
comply with all the motorist compliance enforcement program oversight
requirements set forth at 40 CFR section 51.362;
(6) Virginia must complete and submit as a SIP revision to EPA
procedures manuals for use by the Commonwealth's quality assurance
auditors to conduct covert and overt audits for program oversight
purposes, per 40 CFR section 51.363(e);
[[Page 26747]]
(7) The Commonwealth must adopt, and submit as a SIP revision, a
penalty schedule for inspectors and inspection stations, per 40 CFR
section 51.364 (a) and (d);
(8) Virginia's SIP, either the regulation or the test equipment
specifications, must require that the specific data elements identified
in 40 CFR section 51.365(a) be collected and reported to the
Commonwealth on a real-time basis;
(9) Virginia must finalize and submit the final ``Public
Information Plan'' described in the SIP, to satisfy the requirements of
40 CFR section 51.368 (a) and (b);
(10) Virginia must formally submit the procedures and criteria to
be used in meeting the repair performance monitoring requirements set
forth in 40 CFR section 51.369(b) and a description of the repair
technician training resources available in the community (when
available), per 40 CFR section 51.369(c);
(11) Virginia must submit detailed recall compliance procedures and
a commitment to annually report recall compliance information to EPA,
per the requirements of 40 CFR section 51.370;
(12) Virginia must amend the SIP to include information regarding
resource allocation for the on-road testing program, as well as methods
for analyzing and reporting the results of on-road testing, per 40 CFR
section 51.371. This may entail submittal of an on-road testing
procedures manual or the request for proposals (RFP) for the contractor
to be hired to operate the on-road testing program;
(13) Virginia must list in its schedule of implementation
milestones deadlines by which all procedures documents not yet part of
the SIP are to be finalized and submitted to EPA.
V. Final Rulemaking Action
EPA is conditionally approving the enhanced I/M program as a
revision to the Virginia SIP, based upon certain conditions. This
conditional approval satisfies the requirements of section 182(c)(3) of
the CAA and the NHSDA for an enhanced I/M program. EPA also clarifies
its proposal to approve the SIP under section 110 of the Clean Air Act
as well. For the purposes of strengthening the SIP, EPA is also giving
a limited approval under section 110 if the state fulfills all of its
commitments within 12 months of this final rulemaking. This limited
approval under section 110 will not expire at the end of the 18 month
interim period. Thus, although an approved I/M SIP satisfying the
requirements of section 182(c)(3) may no longer be in place after the
termination of the interim SIP approval period provided by the NHSDA,
this program will remain a part of the federally enforceable SIP.
Should the Commonwealth fail to fulfill the conditions, other than
the startdate condition which will be treated as described above, by
the deadlines contained in each condition, the latest of which is no
more than one year after the date of EPA's final interim approval
action, this conditional, interim approval will convert to a
disapproval pursuant to CAA section 110(k)(4). In that event, EPA would
issue a letter to notify the Commonwealth that the conditions had not
been met, and that the approval has converted to a disapproval.
VI. Further Requirements for Full I/M SIP Approval
This approval is being granted on an interim basis for a period of
18 months, under the authority of section 348 of the National Highway
Systems Designation Act of 1995. At the end of this period, the
approval will lapse. At that time, EPA must take final rulemaking
action upon the Commonwealth's SIP, under the authority of section 110
of the Clean Air Act. Final approval of the Commonwealth's plan will be
granted based upon the following criteria:
(1) The Commonwealth has complied with all the conditions of its
commitment to EPA,
(2) EPA's review of the Commonwealth's program evaluation confirms
that the appropriate amount of program credit was claimed by the
Commonwealth and achieved with the interim program,
(3) Final program regulations are submitted to EPA, and
(4) The Commonwealth's I/M program meets all of the requirements of
EPA's I/M rule, including those de minimus deficiencies identified in
this notice as minor for purposes of interim approval.
VII. Administrative Requirements
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.
A. 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.
B. 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, EPA certifies 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.
C. 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
[[Page 26748]]
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 promulgated 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
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
D. Submission to Congress and the General Accounting Office
Under 801(a)(1)(A) as added by the Small Business Regulatory
Enforcement Fairness Act of 1996, EPA submitted a report containing
this rule and other required information to the U.S. Senate, the U.S.
House of Representatives and the Comptroller General of the General
Accounting Office prior to publication of the rule in today's Federal
Register. This rule is not a ``major rule'' as defined by 804(2).
E. Petitions for Judicial Review
Under 307(b)(1) of the Clean Air Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by July 14, 1997.
Filing a petition for reconsideration by the Administrator of this
final rule to conditionally approve the Virginia I/M SIP, on an interim
basis, does not affect the finality of this rule for the purposes of
judicial review, nor does it extend the time within which a petition
for judicial review may be filed, and shall not postpone the
effectiveness of such rule or action. This action may not be challenged
later in proceedings to enforce its requirements. (See 307(b)(2) of the
Administrative Procedures Act).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Reporting and recordkeeping requirements.
Dated: May 2, 1997.
Thomas J. Maslany,
Acting Regional Administrator, Region III.
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 VV--Virginia
2. 52.2450 is amended by designating the existing text as paragraph
(a) and by adding paragraphs (b), (c) and (d) to read as follows:
Sec. 52.2450 Conditional Approval.
* * * * *
(b) The Commonwealth of Virginia's March 27, 1996 submittal for an
enhanced motor vehicle inspection and maintenance (I/M) program is
conditionally approved based on certain contingencies, for an interim
period to last eighteen months. If the Commonwealth fails to start its
program according to the schedule it provided, or by November 15, 1997
at the latest, this conditional approval will convert to a disapproval
after EPA sends a letter to the state. If the Commonwealth fails to
satisfy the following conditions within 12 months of this rulemaking,
this conditional approval will automatically convert to a disapproval
as explained under section 110(k) of the Clean Air Act. The conditions
for approvability are as follows:
(1) The Commonwealth must perform and submit the new modeling
demonstration that illustrates how its program will meet the relevant
enhanced performance standard, by September 15, 1997 (a date specified
by the Commonwealth in the commitment letter to EPA). The
Commonwealth's revised modeling must correspond to the actual I/M
program configuration, including actual test methods and start dates
for all I/M program tests, actual cutpoints to be in-place for the
evaluation year, and all other program assumptions as they exist in the
SIP. EPA expects that Virginia's new modeling demonstration will be
done using an approved EPA model in order to meet this condition.
Virginia should refer to EPA's guidance on modeling to determine which
version of the model is appropriate and suitable for Virginia's use in
meeting this commitment.
(2) The Commonwealth must submit to EPA as a SIP amendment, by
September 15, 1997 (a date specified by the Commonwealth in the
commitment letter to EPA), the final Virginia I/M regulation which
requires a METT-based evaluation be performed on 0.1% of the subject
fleet each year as per 40 CFR 51.353(c)(3) and which meets all other
program evaluation elements specified in 40 CFR 51.353(c), including a
program evaluation schedule, a protocol for the testing, and a system
for collection and analysis of program evaluation data.
(3) By September 15, 1997 (a date specified by the Commonwealth in
the commitment letter to EPA), Virginia must adopt and submit a final
Virginia I/M regulation which requires and which specifies detailed,
approvable test procedures and equipment specifications for all of the
evaporative and exhaust tests to be used in the enhanced I/M program.
The Commonwealth has committed to adopt approvable test procedures,
standards and specifications for its two-mode ASM test. The draft
regulations submitted to EPA with the commitment letter, containing the
two-mode ASM procedures and specifications do not comply in all
respects with EPA's ASM technical guidance EPA-AA-RSPD-IM-96-2. EPA
expects that Virginia will remedy any remaining discrepancies between
its regulation and approved EPA specifications by the September 15,
1997 date.
(c) In addition to the above conditions for approval, the
Commonwealth must correct several minor, or de minimus deficiencies
related to CAA requirements for enhanced I/M. Although satisfaction of
these deficiencies does not affect the conditional approval status of
the Commonwealth's rulemaking granted under the authority of Sec. 110
of the Clean Air Act, these deficiencies must be corrected in the final
I/M SIP revision prior to the end of the 18-month interim period
granted under the National Highway Safety Designation Act of 1995:
(1) The SIP lacks a detailed description of the elements to satisfy
the test frequency requirements required under 40 CFR 51.355(a),
particularly regarding scheduling of vehicles for testing and the
selection scheme for the biennial program inspections, as well as a
description of how test frequency will be integrated with the
registration denial motorist enforcement process;
(2) The SIP does not fully account for all exceptions from testing
in the emissions reductions analysis. The state must account for
testing exceptions and account for them in their performance standard
modeling demonstration, per 40 CFR 51.356(b)(2);
[[Page 26749]]
(3) Virginia must develop quality control procedures, test
equipment specifications, quality control procedures manual, or other
ordinance or documents to satisfy all the quality control requirements
of 40 CFR 51.359;
(4) Virginia must amend its regulation to allow that waivers be
issued only by a single contractor or by the Commonwealth, per 40 CFR
51.360(c)(1);
(5) The final SIP submittal must include the procedures document
that adequately addresses the means by which the Commonwealth will
comply with all the motorist compliance enforcement program oversight
requirements set forth at 40 CFR 51.362;
(6) Virginia must complete and submit as a SIP revision to EPA
procedures manuals for use by the Commonwealth's quality assurance
auditors to conduct covert and overt audits for program oversight
purposes, per 40 CFR 51.363(e);
(7) The Commonwealth must adopt, and submit as a SIP revision, a
penalty schedule for inspectors and inspection stations, per 40 CFR
51.364 (a) and (d);
(8) Virginia's SIP, either the regulation or the test equipment
specifications, must require that the specific data elements identified
in 40 CFR 51.365(a) be collected and reported to the Commonwealth on a
real-time basis;
(9) Virginia must finalize and submit the final ``Public
Information Plan'' described in the SIP, to satisfy the requirements of
40 CFR 51.368 (a) and (b);
(10) Virginia must formally submit the procedures and criteria to
be used in meeting the repair performance monitoring requirements set
forth in 40 CFR 51.369(b) and a description of the repair technician
training resources available in the community (when available), per 40
CFR 51.369(c);
(11) Virginia must submit detailed recall compliance procedures and
a commitment to annually report recall compliance information to EPA,
per the requirements of 40 CFR 51.370;
(12) Virginia must amend the SIP to include information regarding
resource allocation for the on-road testing program, as well as methods
for analyzing and reporting the results of on-road testing, per 40 CFR
51.371. This may entail submittal of an on-road testing procedures
manual or the request for proposals (RFP) for the contractor to be
hired to operate the on-road testing program;
(13) Virginia must list in its schedule of implementation
milestones deadlines by which all procedures documents not yet part of
the SIP are to be finalized and submitted to EPA.
(d) EPA is also approving this Enhanced I/M SIP revision under
section 110(k), for its strengthening effect on the plan.
[FR Doc. 97-12790 Filed 5-14-97; 8:45 am]
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