[Federal Register Volume 62, Number 134 (Monday, July 14, 1997)]
[Rules and Regulations]
[Pages 37506-37510]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18407]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA014-01-7195; A-1-FRL-5847-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Commonwealth of Massachusetts; 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 Massachusetts. This 
revision establishes and requires the implementation of an enhanced 
inspection and maintenance (I/M) program statewide in Massachusetts. 
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 August 13, 1997.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours, by 
appointment at the Office of Ecosystem Protection, U.S. Environmental 
Protection Agency, Region I, One Congress Street, 11th floor, Boston, 
MA; Air and Radiation Docket and Information Center, U.S. Environmental 
Protection Agency, 401 M Street, SW., (LE-131), Washington, DC 20460; 
Division of Air Quality Control, Department of Environmental 
Protection, One Winter Street, 8th Floor, Boston, MA 02108.

FOR FURTHER INFORMATION CONTACT: Peter Hagerty, by telephone at: (617)

[[Page 37507]]

565-3571, or at the above EPA Region I address.

SUPPLEMENTARY INFORMATION:

I. Table of Contents

I. Table of Contents
II. Background
III. Public Comments/Response to Comments
IV. Final Rulemaking Action
V. Conditional Interim Approval
VI. Further Requirements for Permanent I/M SIP Approval
VII. Administrative Requirements
    A. Executive Order 12866
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Act
    D. Submission to Congress & the General Accounting Office
    E. Petitions for Judicial Review

II. Background

    On January 30, 1997 (62 FR 4505), EPA published a notice of 
proposed rulemaking (NPR) for the Commonwealth of Massachusetts. The 
NPR proposed conditional interim approval of Massachusetts' 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 Massachusetts Department of Environmental Protection on March 
27, 1996. Supplemental information was submitted by letters dated 
September 17, 1996, November 21, 1996, and November 27, 1996.
    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 these programs. 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 state. 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 start date provision will only trigger a disapproval 
upon EPA's notification to the Commonwealth by letter that the start 
date has been missed. This letter will not only notify the Commonwealth 
that this rulemaking action has been converted to a disapproval, but 
also that the sanctions clock associated with this disapproval has been 
triggered as a result of this failure. Because the start date condition 
is not imposed pursuant to a commitment to correct a deficient SIP 
under section 110(k)(4), EPA does not believe it is necessary to have 
the SIP approval convert to a disapproval automatically if the start 
date is missed. EPA is imposing the start date condition under its 
general SIP approval authority of section 110(k)(3), which does not 
require automatic conversion.
    EPA recognizes Massachusetts' intent to start-up the program on or 
prior to November 15, 1997, but no later than January 1, 1998. The 
program evaluation to be used by the state 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. The core requirement for the 
quantitative measure 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 366. EPA believes METT evaluation testing is not 
precluded by the 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 February 16, 1999. A full approval of Massachusetts' 
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 and 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 Massachusetts 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 public comments were received with regard to this document 
during the comment period.

IV. Final Rulemaking Action

    EPA is conditionally approving the enhanced I/M program as a 
revision to the Massachusetts SIP, based upon certain conditions. This 
conditional approval satisfies the requirements of section 182(c)(3) 
and the NHSDA for an enhanced I/M program. EPA also clarifies its 
proposal to approve the SIP under section 110 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 start date 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 had converted to a disapproval starting 
the sanctions clock.

V. Conditional Interim Approval

    Under the terms of EPA's January 30, 1997 proposed interim 
conditional approval rulemaking, the Commonwealth was required to make 
commitments (within 30 days) to remedy major deficiencies with the I/M 
program SIP (as specified in the NPR), within twelve months of final 
interim approval. On March 3, 1997, Massachusetts submitted a letter 
from David B. Struhs, Commissioner of the Massachusetts Department of 
Environmental Protection, to EPA committing to satisfy the major 
deficiencies cited in the NPR, by dates

[[Page 37508]]

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 Massachusetts I/M SIP, under section 110 of 
the CAA. As discussed in detail later in this document, 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 as described in the 
proposal are as follows:
    (1) The Commonwealth, must revise and submit to EPA, by April 1, 
1997, a complete revised 15% plan utilizing appropriate I/M waiver, 
compliance rates, test type and the phase-in emission standards which 
will be used in November 1997 (i.e. ASM2 emission credits with phase in 
cut points.) This submittal was made on March 30, 1997 and is being 
proposed for interim approval elsewhere in today's Federal Register. 
Therefore, Massachusetts has met this condition.
    (2) The time extension program as described and committed to in the 
March 3, 1997 letter from Massachusetts must be further defined to meet 
the requirements of 51.360 (Waivers and Compliance via Diagnostic 
Inspection) and must be submitted to EPA as a SIP revision by a date no 
later than one year after the effective date of this interim approval. 
Another program which meets the requirements of 40 CFR 51.360 and 
provides for no more than a 1% waiver rate would also be approvable.
    (3) Other major deficiencies as outlined in the proposal must also 
be corrected to achieve the requirements of 40 CFR 51.351 (Enhanced IM 
Performance Standard), 51.354 (Adequate Tools and Resources), 
Sec. 51.357 (Test Procedures and Standards), Sec. 51.359 (Quality 
Control), and Sec. 51.363 (Quality Assurance). The Commonwealth, in a 
letter dated March 3, 1997 committed to correct these deficiencies by a 
date certain within one year of conditional interim approval by EPA.
    The preamble to the NPR under Section III. ``Discussion for 
Rulemaking Action'' paragraph (2) inadvertently listed Motorist 
Compliance Enforcement under 40 CFR 51.361 as a major deficiency. See 
62 FR at 4513, col. 2, (Jan. 30, 1997). As discussed in the section by 
section analysis in the proposal earlier in the preamble, Massachusetts 
addressed the major problem under section 51.361 in a letter dated 
November 27, 1996 by revising the compliance rate to 96% rather than 
98%. See 62 FR at 4511, col. 3. Under the Proposed Action in the NPR, 
this section is correctly not listed as a major deficiency. See 62 FR 
at 4514 col. 1. Massachusetts must submit additional information for 
Sec. 51.361 prior to final action on this program, as specified in de 
minimus condition #4, below.
    In addition to the above conditions, the Commonwealth must correct 
several minor, or de minimus, deficiencies related to CAA requirements 
for enhanced I/M described below. 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 program evaluation 
element as required under 40 CFR 51.353;
    (2) The SIP lacks a detailed description of the test frequency and 
convenience element required under 40 CFR 51.355;
    (3) The SIP lacks a detailed description of the number and types of 
vehicles included in the program as required under 40 CFR 51.356;
    (4) The SIP lacks detailed information concerning the enforcement 
process, and a commitment to a compliance rate to be maintained in 
practice required under 40 CFR 51.361;
    (5) The SIP lacks the details of the enforcement oversight program 
including quality control and quality assurance procedures to be used 
to insure the effective overall performance of the enforcement system 
as required under 40 CFR 51.362;
    (6) The SIP lacks a detailed description of procedures for 
enforcement against contractors, stations and inspectors as required 
under 40 CFR 51.364;
    (7) The SIP lacks a detailed description of data analysis and 
reporting provisions as required under 40 CFR 51.366;
    (8) The SIP lacks a public awareness plan as required by 40 CFR 
51.368; and
    (9) The SIP lacks provisions for notifying motorists of required 
recalls prior to inspection of the vehicle as required by 40 CFR 
51.370.

VI. Further Requirements for Permanent 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 minimis deficiencies identified in 
the January 30, 1997 proposal (62 FR 4505) and this rule 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

[[Page 37509]]

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 any 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 its 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 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 5 U.S.C. 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 5 
U.S.C. 804(2).

E. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 12, 1997.
    Filing a petition for reconsideration by the Administrator of this 
final rule to conditionally approve the Massachusetts 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 section 
307(b)(2) of the Clean Air Act.)

List of Subjects in 40 CFR Part 52

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

    Dated: May 14, 1997.
John P. DeVillars,
Regional Administrator, Region I.
    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart W--Massachusetts

    2. Section 52.1120 is amended by adding paragraph (c)(114) to read 
as follows:


Sec. 52.1120  Identification of plan.

* * * * *
    (c) * * *
    (114) The Commonwealth of Massachusetts' March 27, 1996 submittal 
for an enhanced motor vehicle inspection and maintenance (I/M) program, 
as amended on June 27, 1996 and July 29, 1996, and November 1, 1996, 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 schedule, 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.
    (i) The conditions for approvability are as follows:
    (A) The time extension program as described and committed to in the 
March 3, 1997 letter from Massachusetts must be further defined and 
submitted to EPA as a SIP revision by no later than one year after the 
effective date of this interim approval. Another program which meets 
the requirements of 40 CFR 51.360 (Waivers and Compliance via 
Diagnostic Inspection) and provides for no more than a 1% waiver rate 
would also be approvable.
    (B) Other major deficiencies as described in the proposal must also 
be corrected in 40 CFR 51.351 (Enhanced I/M Performance Standard), 
Sec. 51.354 (Adequate Tools and Resources), Sec. 51.357 (Test 
Procedures and Standards), Sec. 51.359 (Quality Control), and 
Sec. 51.363 (Quality Assurance). The Commonwealth, committed in a 
letter dated March 3, 1997 to correct these deficiencies within one 
year of conditional interim approval by EPA.
    (ii) 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 section 
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:
    (A) The SIP lacks a detailed description of the program evaluation 
element as required under 40 CFR 51.353;
    (B) The SIP lacks a detailed description of the test frequency and 
convenience element required under 40 CFR 51.355;
    (C) The SIP lacks a detailed description of the number and types of 
vehicles included in the program as required under 40 CFR 51.356;

[[Page 37510]]

    (D) The SIP lacks a detailed information concerning the enforcement 
process, and a commitment to a compliance rate to be maintained in 
practice required under 40 CFR 51.361.
    (E) The SIP lacks the details of the enforcement oversight program 
including quality control and quality assurance procedures to be used 
to insure the effective overall performance of the enforcement system 
as required under 40 CFR 51.362;
    (F) The SIP lacks a detailed description of procedures for 
enforcement against contractors, stations and inspectors as required 
under 40 CFR 51.364;
    (G) The SIP lacks a detailed description of data analysis and 
reporting provisions as required under 40 CFR 51.366;
    (H) The SIP lacks a public awareness plan as required by 40 CFR 
51.368; and
    (I) The SIP lacks provisions for notifying motorists of required 
recalls prior to inspection of the vehicle as required by 40 CFR 
51.370.
    (iii) EPA is also approving this SIP revision under section 110(k), 
for its strengthening effect on the plan.

[FR Doc. 97-18407 Filed 7-11-97; 8:45 am]
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