[Federal Register Volume 64, Number 109 (Tuesday, June 8, 1999)]
[Rules and Regulations]
[Pages 30399-30406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-14357]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 122-4086; FRL-6355-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Enhanced Inspection and Maintenance Program Network 
Effectiveness Demonstration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
supplement submitted by the Commonwealth of Pennsylvania on August 21, 
1998. This supplement consists of a demonstration of the effectiveness 
of the Pennsylvania SIP's enhanced motor vehicle emissions inspection 
and maintenance (I/M) program.
    It includes a demonstration of the effectiveness of Pennsylvania's 
I/M testing network to satisfy the requirements of the National Highway 
Systems Designation Act of 1995 (NHSDA). The effect of this action is 
to approve the Commonwealth's demonstration of the effectiveness of its 
I/M program testing network, and to remove all de minimus conditions 
related to EPA's approval of Pennsylvania's program under the NHSDA. 
There is one remaining major condition of EPA's January 28, 1997 
approval of Pennsylvania's I/M program related to the methodology for 
conducting on-going evaluation of the enhanced I/M program. 
Pennsylvania addressed that condition in a separate SIP submittal made 
to EPA on November 26, 1998. EPA will take separate action upon that 
submittal.

EFFECTIVE DATE: This final rule is effective on July 8, 1999.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103; and at the 
Pennsylvania Department of Environmental Protection, Bureau of Air 
Quality, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 
17105.

FOR FURTHER INFORMATION CONTACT: Brian Rehn, (215) 814-2176, or via e-
mail at Rehn.B[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On September 16, 1998, EPA published a notice of direct final 
rulemaking (DFR) to approve the Commonwealth of Pennsylvania's August 
21, 1998 I/M program SIP supplement (see 63 FR 49436). Pennsylvania's 
August 21, 1998 SIP supplement included the Commonwealth's enhanced I/M 
program network effectiveness demonstration, as required by the NHSDA. 
It also addressed seven de minimus I/M program deficiencies EPA 
identified in its January 28, 1997 interim conditional approval of 
Pennsylvania's I/M program SIP (see 62 FR 4004).
    Opportunity for comment was provided, however, as EPA also 
published a proposed rule (63 FR 49517) in the same volume of the 
Federal Register in which the DFR appeared, proposing to approve the 
Commonwealth's August 21, 1998 SIP submission. The preamble of the DFR

[[Page 30400]]

stated that in the event EPA received adverse comments, the DFR would 
be withdrawn and public comments would be considered pursuant to the 
proposed rule. Because EPA received four letters of adverse comment, it 
withdrew the DFR on October 21, 1998 (53 FR 56086). The public comments 
submitted relevant to the September 16, 1998 proposed rule (63 FR 
49517) are addressed in the ``Summary of Public Comments/Response to 
Public Comments'' section of this document.
    The rationale and the specifics of EPA's proposed action were 
explained in the September 16, 1998 DFR referenced in the accompanying 
notice of proposed rulemaking (NPR) and will not be restated.

II. Summary of the Public Comments/Response to the Public Comments

    This section discusses and summarizes the comments submitted during 
the comment period for the NPR published in the September 16, 1998 
Federal Register. This section also contains EPA's formal response to 
those comments. Comments were submitted by the Clean Air Council, 
Gordon-Darby, Inc., the New Jersey Department of Environmental 
Protection (DEP), and by Francis W. Jackson (a private citizen of 
Pennsylvania). Only those comments relevant to EPA's September 16, 1998 
proposed action to approve the Commonwealth's August 21, 1998 SIP 
supplement are addressed in today's rulemaking. Copies of the comment 
letters are available at the EPA Regional Office listed in the 
ADDRESSES section of this final rule. Comments have been summarized and 
grouped by commenter, and EPA's response directly follows each 
summarized comment.

New Jersey Department of Environmental Protection

    Comment: The commenter states that any action by EPA to approve 
Pennsylvania's submittal weakens efforts by other states to implement 
cost-effective and environmentally defensible programs.
    Response: EPA granted states flexibility to develop their 
respective enhanced I/M programs through its 1992 I/M Rule. This 
flexibility was further expanded in 1995 with passage of the NHSDA. 
This flexibility was intended to allow states to tailor programs unique 
to their needs, and to provide for cost-effective programs, while still 
achieving the desired emissions reduction benefits. EPA does not 
believe that approval of Pennsylvania's August 1998 SIP supplement 
jeopardizes efforts by other states to implement their chosen programs. 
EPA believes that the data submitted by Pennsylvania adequately 
supports the network effectiveness demonstration for the Commonwealth's 
chosen network. Other states are free to submit whatever data they 
believe is appropriate to support a network effectiveness demonstration 
for their chosen network.
    Comment: The commenter states that given the national implications 
of EPA's approval action, it is incumbent upon EPA to seek all 
information supporting its action and to allow interested parties 
sufficient time to comment on Pennsylvania's program.
    Response: At the request of a commenter, EPA extended the comment 
period on its proposed action to approve Pennsylvania's NHSDA 
demonstration SIP submittal to November 16, 1998, a full 30 days beyond 
the original deadline of October 16, 1998 specified in the September, 
16 1998 NPR. EPA believes that this extended comment period was 
adequate to allow all interested parties to review the relevant 
materials and to submit their comments. EPA has taken into 
consideration all comments received during the extended comment period 
in its decisions related to this final rule.
    Comment: The commenter states that Pennsylvania's NHSDA 
demonstration provides no qualitative or quantitative, incremental 
assessment of the program subsequent to implementation. The commenter 
further states that Pennsylvania's decision not to submit a program 
evaluation per the guidelines developed by the Environmental Council of 
States (or ECOS) would establish a precedent allowing other NHSDA 
states to follow suit and not to submit specific qualitative assessment 
information to either the participating ECOS or to EPA. The commenter 
further states that approval of Pennsylvania's demonstration would make 
it difficult for other states to retain the resources and support 
necessary to develop and submit meaningful, qualitative program 
evaluation information. Finally, the commenter states that EPA's 
approval of Pennsylvania's demonstration will not result in a 
meaningful quantitative ongoing program evaluation, as required by 40 
CFR 51.353(c) and amended in 63 FR 1362.
    Response: The Conference Report to the NHSDA directed EPA to 
approve, on an interim basis, any state program utilizing a 
decentralized test network, if the emissions reductions claimed by the 
state were based upon available information about actual effectiveness. 
Final approval of the proposed credit estimates would then be granted 
if the interim program demonstrated that the credits were appropriate.
    The NHSDA does not require Pennsylvania to provide an incremental 
assessment of its program since the inception of the enhanced program. 
What is provided by the Commonwealth's program effectiveness 
demonstration is a description of the steps taken to implement the 
commitments contained in its ``Good Faith Estimate''--submitted in 1996 
as a basis for interim approval of its program under the NHSDA. That 
``Good Faith Estimate'' served as Pennsylvania's justification of its 
credit claims for its decentralized program. The August 1998 ``NHSDA 
Description of Program Effectiveness'' document describes 
Pennsylvania's efforts to ensure its program is operating as 
effectively as intended and supplies enhanced program operating data to 
substantiate Pennsylvania's claims for emission reduction credits from 
its program. The data program summary is based upon data gathered 
during the first year of operation, and includes: an overview of 
participating test stations, information on individual emissions 
inspectors, a summary of overt and covert audit efforts, a summary of 
remedial activities triggered by audits, and examples of the 
computerized record audit process.
    EPA has not mandated the use of the guidelines developed by ECOS 
for NHSDA demonstrations. EPA made clear during the development of 
those guidelines that it could not bind states to comply with such 
voluntary guidelines. The Commonwealth has made it known to the 
participants of the ECOS process from the outset that it would not be 
bound by ECOS's guidelines. EPA believes that the Commonwealth's 
``NHSDA Description of Program Effectiveness'' provides a reasonable 
assessment of its program to serve as the basis for EPA to determine 
that it demonstrates equivalency with a centralized program, per the 
requirements for such demonstrations in Section 348 of the NHSDA. The 
data is credible in that it provides actual data from the operation of 
the enhanced program. EPA believes this data supports approval of the 
Commonwealth's demonstration under section 348(c)(3) of the NHSDA.
    With regard to the comment that Pennsylvania's approach to a NHSDA 
demonstration sets a precedent for future demonstrations, by this point 
in time most states with decentralized I/M programs developed pursuant 
to the NHSDA have already selected the methods for evaluation of their 
programs, and in most cases should have already submitted their

[[Page 30401]]

demonstrations to EPA. EPA finds that the Commonwealth's demonstration 
provides actual data on the program elements found in its 1996 Good 
Faith Estimate. Moreover, EPA will review each affected state's NHSDA 
demonstration, individually, and render an objective finding based upon 
each state's submittal. Contrary to the notion that this demonstration 
allows other states to submit demonstrations that do not quantitatively 
evaluate incremental program benefits, EPA believes the statute does 
not expressly require or prohibit that type of demonstration in all 
cases.
    Finally, EPA does not agree that approval of the Commonwealth's 
NHSDA demonstration will undermine efforts by Pennsylvania and other 
states to conduct meaningful ongoing evaluations of I/M programs and 
their benefits as required by 40 CFR 51.351(c). EPA revised those 
requirements on January 9, 1998 (see 63 FR 1362), and on October 30, 
1998, EPA published guidance to provide options for states in choosing 
scientifically sound ongoing program evaluation methodologies. EPA 
fully expects states to comply with the revised requirements by 
selecting an approved methodology for conducting the ongoing program 
evaluations. On November 26, 1998, Pennsylvania submitted a SIP 
revision supplement consisting of its chosen methodology from the list 
of options published by EPA to comply with the ongoing I/M program 
evaluation requirements of 40 CFR 51.351(c). EPA will take separate 
action, in the near future, upon that submittal.
    Comment: The commenter believes that states should not be allowed 
to avoid submitting meaningful information to demonstrate the 
effectiveness of their I/M programs--even in light of recent 
flexibility granted to states in designing and implementing I/M 
programs.
    Response: EPA believes that the ongoing program evaluation, 
required by 40 CFR 51.351(c), in conjunction with the data analysis and 
reporting requirements of 40 CFR 51.366, will provide meaningful 
information about enhanced I/M program effectiveness. By approving 
Pennsylvania's NHSDA demonstration, EPA has in no way reduced or 
eliminated the Commonwealth's obligation to conduct ongoing enhanced I/
M program evaluations under 40 CFR 51.351. Neither does the fact that 
EPA has provided states with flexibility in adopting and implementing 
enhanced I/M programs reduce those states' obligation to conduct 
ongoing enhanced I/M program evaluations under 40 CFR 51.351.

Clean Air Council

    Comment:  The commenter believes EPA should wait to approve 
Pennsylvania's I/M program because there is insufficient data to 
support finding that Pennsylvania's program should receive full credit. 
The Council recommends EPA withhold final rulemaking on the adequacy of 
Pennsylvania's program for at least six months, until the program can 
be better evaluated.
    Response: The NHSDA established timeframes for the development and 
implementation of I/M programs by states, and the Clean Air Act 
establishes timeframes for EPA to take rulemaking action upon such 
programs. Pennsylvania submitted a redesigned I/M program SIP on March 
22, 1996, under the authority granted by the NHSDA. EPA's January 28, 
1998 rulemaking action to grant conditional interim approval of that 
SIP revision started an eighteen month interim approval period, under 
the authority of the NHSDA. During that period, the Commonwealth was to 
adopt final regulations, to commence operation of the enhanced I/M 
program, and to submit a demonstration of actual network effectiveness 
based upon data collected during the interim approval period.
    Pennsylvania's interim approval period expired on August 28, 1998. 
The NHSDA provides for no extension of this interim approval period. 
Under the timeframes set forth by the NHSDA, EPA was therefore 
compelled to take expeditious action upon the Commonwealth's August 21, 
1998 SIP amendment to prevent the lapsing of the interim approval under 
the NHSDA, which could result in the imposition of sanctions. EPA 
believes that it has enough information in the data submitted by 
Pennsylvania to determine the effectiveness of the Pennsylvania 
program.
    Comment: Clean Air Council expresses concern that Pennsylvania is 
overemphasizing compliance assistance at the expense of program 
enforcement, thus jeopardizing the integrity of the program. The Clean 
Air Council is also concerned that Pennsylvania had not yet selected 
its methodology for performing the required ongoing program 
evaluations.
    Response: EPA's I/M rule (40 CFR part 51, subpart S) requires the 
establishment of minimum penalties for violations of program rules and 
procedures that can be imposed against stations, contractors, and 
inspectors. Pennsylvania's regulation includes a penalty schedule which 
provides for minimum penalties against both enhanced I/M stations and 
inspectors. This schedule meets the minimum limits set forth in EPA's 
I/M rule, at 40 CFR 51.364. Pennsylvania also has the authority to 
temporarily suspend station and inspector licenses immediately upon 
discovery of program rule violations.
    Use of auditing and follow-up enforcement serve to further ensure 
the integrity of the I/M program. Pennsylvania, through its oversight 
contractor MCI, uses professionals to conduct both overt and covert 
audits. Pennsylvania's ``NHSDA Description of Program Effectiveness'' 
document indicates that the Commonwealth conducted over 2,000 overt and 
covert audits between October, 1997 and August, 1998. Pennsylvania 
routinely conducts computerized record audits. Through these audits, 
Pennsylvania has uncovered violations stemming from activities 
classified as fraudulent, improper, and careless. While the 
Commonwealth has focused heavily on compliance assistance during the 
early stage of implementation, EPA finds that Pennsylvania has 
sufficient enforcement resources to oversee its decentralized network 
of testing stations and inspectors in a capable manner. The 
Commonwealth has acknowledged that it has been judicious in its use of 
its punitive enforcement authority during this early stage of enhanced 
program implementation. While a long-term strategy that relied too 
heavily upon compliance assistance versus more the punitive enforcement 
mechanisms available to the Commonwealth could jeopardize its program's 
integrity, there is no basis to find that Pennsylvania intends to so 
implement the enforcement of its enhanced I/M program once the program 
is fully established. Moreover, EPA does not agree with the commenter 
that Pennsylvania's enforcement history for the first year of program 
operation limits that program's network effectiveness with respect to 
requirements for the NHSDA demonstration. EPA believes the state should 
provide technical/remedial training assistance in the early stages to 
ensure smooth operation of the new program.
    The commenter stated that Pennsylvania had not selected a 
methodology for its ongoing program effectiveness evaluation at the 
time of its August 1998 submittal, and that such information would be 
useful in evaluating network effectiveness. EPA's conditional interim 
approval of Pennsylvania's SIP did not require the

[[Page 30402]]

submission of an ongoing program evaluation methodology until November 
30, 1998, as codified at 40 CFR 52.2026(a)(2). At the time Pennsylvania 
submitted its network effectiveness demonstration, EPA had not yet 
issued guidance on alternative methods to conduct an ongoing program 
evaluation. Therefore, EPA cannot base its approval of Pennsylvania's 
NHSDA demonstration upon a lack of data from the Commonwealth's ongoing 
program evaluation. On October 30, 1998, EPA did publish guidance to 
provide options for states in choosing scientifically sound ongoing 
program evaluation methodologies. Pennsylvania submitted its choice of 
evaluation methodology to EPA on November 25, 1998. EPA will take 
separate action, in the near future, upon that submittal.

Gordon Darby

    Comment: The Environmental Council of States (ECOS) has developed a 
program evaluation process that includes both qualitative and 
quantitative measures. State participation in this process is 
voluntary. The purpose of the ECOS process was to provide a framework 
to ensure consistent, technically credible state submittals. 
Pennsylvania participated in the ECOS group and helped develop the 
process, but decided it was not bound by the process. The commenter 
fears this decision may undermine other NHSDA states' efforts to submit 
qualitative, and subsequently, quantitative demonstrations of program 
effectiveness pursuant to the ECOS recommendations.
    Response: This comment is similar to a comment submitted by the New 
Jersey DEP. See EPA's response to that comment for further information. 
Pennsylvania's participation in the ECOS process to develop 
demonstration guidelines does not mean that the Commonwealth was bound 
to follow the resulting ECOS guidelines. EPA does not support the 
commenter's position that failure by a state to abide by the non-
binding peer criteria jeopardizes the credibility of that state's NHSDA 
demonstration. EPA cannot disapprove a state's SIP submission on the 
basis that it failed to meet voluntary procedures developed by a group 
of peer states. EPA's approval decision is based upon the merits of the 
Commonwealth's demonstration. EPA believes that the Commonwealth's 
submittal is adequate to serve as its program effectiveness 
demonstration.
    Comment: The commenter states that, in the past, EPA has attempted 
to assist states in determining program effectiveness through audits 
and other technical assistance. The commenter then states that since 
passage of the NHSDA in 1995, EPA has largely allowed states to 
implement whatever type of program they want, with the provision that 
each state would need to later demonstrate the projected effectiveness. 
The commenter then states that EPA's proposal to approve Pennsylvania's 
NHSDA demonstration instead appears to allow Pennsylvania to avoid 
having to submit meaningful information regarding program 
effectiveness.
    Response: Since the passage of the revised Clean Air Act in 1990 
and the NHSDA in 1995, EPA has provided considerable assistance to 
states in order to secure the adoption and implementation of effective 
enhanced I/M programs in accordance with federal law. EPA does not find 
that applicable federal law mandates a ``one size fits all'' approach 
to the design of states' enhanced I/M programs. EPA does not interpret 
the NHSDA to require states to determine overall program effectiveness, 
since EPA has already determined the effectiveness of the model program 
supporting the performance standard. Rather, states must merely 
demonstrate that the unique flexibility options they have selected, 
with particular emphasis on test network type, have not adversely 
impacted the credits claimed for their programs in relation to the 
model program.
    Comment: The commenter states that Pennsylvania's ``Good Faith 
Estimate'' ignores the repair side of the I/M equation, and that all of 
the data in its demonstration focuses on vehicle inspection results, 
with no data presented on even basic repair results. The commenter 
asserts, therefore, that it is not possible to verify that the 
``enhanced'' Pennsylvania program is significantly reducing vehicle 
emissions beyond its previously enacted basic I/M program.
    Response: Pennsylvania chose to study repair effectiveness 
indirectly, through comparison of initial and retest data on the number 
of vehicles that passed and failed. That analysis indicates that 
approximately 35% of vehicles that failed initial testing passed their 
first retest within 30 days of initial testing. This data seemingly 
indicates the percentage of vehicles getting effective repairs prior to 
their first retest. EPA does not interpret the NHSDA to specifically 
require states to directly study repair effectiveness, and to include 
such data in their NHSDA demonstrations.
    Comment: The commenter takes exception to Pennsylvania's approach 
to evaluation of the program based upon MOBILE5 modeling because 
Pennsylvania has stated, in the past, that the current version of the 
MOBILE emissions estimation model does not reflect reality, 
particularly with relation to the model's 50% credit discount for test-
and-repair programs. The commenter also states that the use of the 
MOBILE5 model to evaluate the program overlooks substantial recent data 
which suggests that MOBILE5 overpredicts I/M benefits, and that EPA is 
consequently working on major I/M credit changes for use in a future 
version of the model--MOBILE6. The commenter, therefore, believes that 
it does not make sense to evaluate any state's I/M program at this time 
using MOBILE5.
    Response: Although EPA is in the process of updating the MOBILE 
emissions model, until EPA completes that process MOBILE5 remains an 
accepted program evaluation tool in its current version for use in 
determining compliance with the I/M performance standard, per the 
requirements of 40 CFR 51.351. States must correctly evaluate their 
programs under the NHSDA and cannot wait for EPA to complete its 
revision of the MOBILE model to begin program evaluation. Further, EPA 
believes that the commenter took Pennsylvania's statement in its 
``NHSDA Description of Program Effectiveness'' out of context. EPA 
believes that Pennsylvania meant to state, as background information, 
that MOBILE5 was the tool used to determine Pennsylvania's credit 
presumptions for the program, prior to implementation of the program. 
EPA did not take the modeling of the performance standard into 
consideration in its deliberation upon Pennsylvania's NHSDA network 
effectiveness demonstration. EPA expects the ongoing program 
demonstration, required by 40 CFR 51.353, to serve as an additional 
program effectiveness evaluation tool. Additionally, information from 
the data analysis to be conducted and submitted to EPA under the 
requirements of 40 CFR 51.366 may also help to serve that role.
    Comment: The commenter states that in the program effectiveness 
demonstration, Pennsylvania asserted that its program was unique and 
was still being phased-in, and therefore could not be compared to 
another state's test-only program. The commenter goes on to state that 
all inspection programs are different in various ways, but regardless 
of program design, states can be held to the same ultimate criterion--
the degree of reduction achieved in average emissions. The commenter

[[Page 30403]]

believes the [ECOS] concept of analyzing average emissions levels of 
vehicles having gone through the inspection program is fundamentally 
sound. The commenter states that Pennsylvania either does not 
understand or has misinterpreted the ECOS approach.
    Response: Neither the statutes nor EPA's regulations mandate the 
use of ECOS's approach in conducting the demonstration required by the 
NHSDA. Pennsylvania chose not to utilize the ECOS model for such a 
demonstration, and whether or not the ECOS criteria is a sound approach 
is not an issue for decision under this rulemaking. Thus, whether all 
programs could be evaluated through an analysis of average emission 
reductions is not relevant to this rulemaking. The only issue is 
whether the data submitted supports Pennsylvania's program 
effectiveness claims. EPA has concluded that it does.
    Comment: The commenter alleges that the Commonwealth's submittal 
cannot be justified on technical grounds, and takes exception to EPA's 
comment in the direct final rule that ``the variety of data supplied 
encompasses those implementation issues that most significantly impact 
program effectiveness.'' Moreover, the commenter feels that since no 
emissions data was included, it is impossible to determine to what 
degree vehicles are being repaired.
    Response: EPA has analyzed the program data submitted as part of 
the Commonwealth's ``NHSDA Program Effectiveness Demonstration''. The 
data is set forth in detailed summaries of emissions test and retest 
results, and stratified by model year and test type. The data is 
separated by vehicles that undergo a retest, those that passed a 
retest, and those that failed a retest. Given that Pennsylvania's 
enhanced program had been implemented for less than one year at the 
time it was required to submit this demonstration under the NHSDA, EPA 
believes the Commonwealth has made a reasonable showing of data towards 
meeting NHSDA demonstration requirements, and that approval of 
Pennsylvania's program is warranted.
    Comment: The commenter asserts that Pennsylvania's phase-in 
hydrocarbon (HC) and carbon monoxide (CO) standards for the 
Acceleration Simulation Mode (ASM) test are less stringent than the 
standards used in the previous basic idle test program, and that this 
is demonstrated by comparing the initial HC/CO fail rates of the two-
speed idle (TSI) and ASM tests; the TSI rate is 6.0% while the ASM rate 
is 3.4%. The commenter goes on to state that while phase-in standards 
for nitrogen oxides, and final standards for all three pollutants 
represent increased test stringency, given other problems identified in 
the submittal, it appears that an increased failure rate is no 
guarantee of a more effective program.
    Response: The initial phase-in ASM standards being used during the 
first phase of implementation of the Commonwealth's I/M program are 
based upon EPA's recommendation, to allow states time to phase in 
repair technician training and better overall repair effectiveness 
during the first cycle of program operation. EPA expected the use of 
these standards to result in relatively low failure rates. EPA agrees 
that pass/fail results do not, in and of themselves, guarantee an 
effective program. However, the purpose of the demonstration required 
under the NHSDA was not to compare the failure rates of the new 
enhanced I/M program to that of Pennsylvania's previously existing 
``basic'' program. EPA approved Pennsylvania's use of phase-in 
standards in a separate rulemaking and those standards are not the 
subject of a today's rulemaking. Given all the differences between the 
design and implementation of the Philadelphia five-county area's 
previous idle program and its current phase-in ASM testing program, 
there is little value in comparing direct failure rates between the 
two. EPA believes it is too early in the life cycle of Pennsylvania's 
enhanced I/M program to make a judgement on the impacts of low failure 
rates.
    Comment: The commenter states that no data are presented on whether 
the new test produces larger HC and CO emission reductions, on average, 
for vehicles that are repaired compared to repairs that occurred under 
the previous basic program. The commenter feels that failure rate data 
provides no insight into the degree of emissions reductions being 
achieved.
    Response: While this type of evaluation would be beneficial in 
determining the quantitative benefits from an enhanced I/M program, the 
Agency does not believe such an analysis is required to satisfy the 
requirements of the NHSDA. While Pennsylvania's 1996 ``Good Faith 
Estimate'' is based upon specific improvements to Pennsylvania's 
existing basic I/M program, EPA did not evaluate the Commonwealth's 
``NHSDA Program Demonstration'' on the basis of the level of 
improvement over the existing basic program. EPA believes that the 
enhanced program data submitted by the Commonwealth stands on its own 
for purposes of this demonstration, and supports the credit claims 
requested by the state.
    Comment: Pennsylvania's test summary data indicate extremely low 
visual failure rates. Out of 1.6 million tests performed for the 
demonstration, only 0.1% failed for one of the five visual checks 
performed. Low failure rates are often an indication of poor or 
fraudulent inspector performance.
    Response: EPA agrees that the visual inspection failure rates cited 
in the Commonwealth's ``NHSDA Description of Program Effectiveness'' 
are low. Pennsylvania's own NHSDA demonstration confirms, through state 
audit summaries, that visual inspections were often not done or not 
done properly. Pennsylvania is addressing this program implementation 
issue (versus NHSDA demonstration approval issue) of low visual failure 
rates through use of covert and overt audits, and stronger enforcement.
    Comment: The commenter states that the data shows high retest 
failure rates, with roughly 38% of vehicles failing the post-repair 
retest. The commenter goes on to state that a high retest failure rate 
may indicate ineffective repairs. It is unknown how many of these 
vehicles received repair waivers, continued to try to pass the test, or 
``disappeared'' from the program.
    Response: The Commonwealth is still in the process of ramping up 
the program. EPA expects relatively low repair effectiveness for a 
newly enacted enhanced I/M program that employs a different test 
method. The Agency will further evaluate first and subsequent retest 
results, along with waiver issuance results, when it reviews the 
Commonwealth's ongoing program evaluation reports, per the requirements 
of 40 CFR 51.366.
    Comment: The commenter states that Pennsylvania's data shows that a 
high number of vehicles ``disappear'' after failing an initial test 
(i.e., roughly 45% of all initially failing vehicles), and that it is 
unclear if this data might have been influenced by the improper 
categorization of initially tested vehicles versus retested vehicles, 
or vehicles that were waived (but not counted as such) prior to retest. 
Notwithstanding, the commenter asserts, the data suggests the program 
is not causing repair of nearly as many vehicles as the initial failure 
rates suggest. The commenter then states that Pennsylvania's submittal 
indicates that roughly 36% of vehicles that failed were repaired and 
retested within 30 days, which seems contrary to the expectation that 
the majority of vehicles in a test-and-repair program would receive 
repairs at the same station soon after the initial test.

[[Page 30404]]

    Response: According to Pennsylvania's I/M regulations, if a vehicle 
does not have a valid emissions sticker, it cannot be operated within 
the I/M program area. It is expected that during the first year of 
implementation of an enhanced I/M program some vehicles will 
``disappear'' because there is a culling out of the gross polluters 
from the fleet. Eventually, the road-side testing could assist in 
identifying legally registered vehicles operating in the area without 
valid emissions credentials.
    Comment: The commenter expressed concern that EPA has accepted 
Pennsylvania's conclusions regarding the program summary data at face 
value without performing an independent analysis of the summary or raw 
test data. Also the commenter is troubled that EPA did not perceive 
issues with the Commonwealth's demonstration that could be garnered 
through a simple analysis of the presented summary data. The commenter 
believes there is a fundamental problem in trying to perform such a 
program evaluation in the total absence of vehicle-specific emissions 
data.
    Response: EPA does not agree with the commenter that vehicle-
specific emissions data is necessary to perform the demonstration 
required under section 348 of the National Highway Systems Designation 
Act. Summary data showing the results, on average, of the entire tested 
fleet can be used to perform such an analysis. We have reviewed the 
Commonwealth's demonstration and have determined that the program has 
met the spirit of the law in proving its program effectiveness. While 
we do not dispute the commenter's assertions that vehicle specific data 
is necessary to analyze the benefits of the program, such an analysis 
is not necessary to satisfy the requirements of the NHSDA for 
demonstration of the effectiveness of a decentralized testing network.

Francis W. Jackson

    Comment: Mr. Jackson submitted comments relevant to the 
effectiveness of Pennsylvania's program in helping to attain the ozone 
standard, the cost-effectiveness of an ASM compared to 2-speed idle 
testing, as well as the cost-effectiveness of decentralized I/M to 
centralized I/M. Additionally, the commenter reflects upon 
Pennsylvania's selection of a method to conduct an ongoing program 
evaluation, to quantify the actual emissions benefits of the program, 
as required under 40 CFR 51.353(c). Finally, Mr. Jackson criticizes the 
choice of a decentralized I/M program, in light of other available 
control measures and based upon the contribution of highway mobile 
sources to total future ozone precursor emission inventories.
    Response: Many of the comments submitted by Mr. Jackson were not 
the subject of EPA's September 16, 1998 proposed approval of 
Pennsylvania's SIP supplement to satisfy the program effectiveness 
requirements of the NHSDA. Many of his comments deal with issues 
associated with approval of Pennsylvania's enhanced I/M SIP, which was 
granted conditional interim approval on January 28, 1997 (see 62 FR 
4004) and was not subject to further comment in this rulemaking. That 
previous conditional interim approval action was not subject to further 
comment in this rulemaking.
    The NHSDA does not require states to demonstrate the absolute 
performance of their program, but instead requires a state to 
demonstrate that its decentralized program would achieve all or some of 
the benefits achieved by a model, centralized program, which 
Pennsylvania has done. The cost and the cost-effectiveness of 
Pennsylvania's program are not the subject of this rulemaking action. 
As previously noted, Pennsylvania has selected a methodology to conduct 
the required ongoing program evaluation to quantify the program's 
benefits. Pennsylvania submitted its choice of evaluation methodology 
to EPA on November 25, 1998. EPA will take separate action, in the near 
future, upon that submittal.
    Comment: The commenter contends that Pennsylvania's demonstration 
supports effectiveness of program implementation, not program 
effectiveness. He goes on to state that program effectiveness is a 
measure of how well it cleans the air, the most important of which is 
how ASM contributes to Philadelphia's attainment of the 1-hour ozone 
National Ambient Air Quality Standard (NAAQS) by 2005--and at what 
cost.
    Response: The Commonwealth's ``NHSDA Description of Program 
Effectiveness'' focuses upon Pennsylvania's implementation of those 
measures contained in its 1996 ``Good Faith Estimate'' which was 
submitted to and granted interim approval by EPA on January 28, 1997 
(see 62 FR 4004) under the authority of the NHSDA. The Commonwealth's 
summaries of program data and program oversight data were submitted to 
show the results of the operation of the program during that interim 
approval period. In terms of the programs's effectiveness in continuing 
to achieve the expected emission reductions, that analysis must be 
analyzed in the biennial program evaluations required to be performed 
by 40 CFR 51.353. However, it is important to remember that the 
enhanced I/M program is only one of many control measures implemented 
to reduce ozone precursors, and it is not possible to monitor directly 
the benefits of any single emissions control strategy such as the I/M 
program in reducing ambient ozone levels.
    Comment: The commenter cites Pennsylvania's ``Program Effectiveness 
Description'' (p. 1, para. 2) which states that its program achieves 
reductions equal to EPA's model program. He comments that Pennsylvania 
has not proved this assertion. The commenter further contends that the 
big issue is proving Pennsylvania has overcome the decentralized test-
and-repair credit reductions that past (non-PA) decentralized and /or 
test-and-repair programs have demonstrated. The commenter also cites 
Pennsylvania's ``Program Effectiveness Description'' (p.1, para. 3) 
which indicates that captured program data clearly demonstrates that 
the program is achieving Pennsylvania's claimed benefits, and asserts 
that Pennsylvania's collected data is inadequate to directly compute 
achieved emissions reductions.
    Response: EPA agrees with the commenter that the purpose of the 
NHSDA demonstration is to show that a State's decentralized program is 
as effective in achieving the emissions reduction benefits associated 
with a centralized or test-only program. However, the NHSDA did not set 
forth binding guidelines for how such a demonstration should be 
performed. Pennsylvania chose an approach to demonstrate the 
credibility of its program's design through implementation of measures 
in their ``Good Faith Estimate'' and through submission of data 
gathered from the first year of operation of the program. EPA believes 
it satisfies the statutory requirements for such demonstrations, as 
required by section 348(c)(3) of the NHSDA.
    Comment: The commenter contends that ASM testing does little toward 
achieving the ozone standard for the Philadelphia area. Pennsylvania's 
demonstration indicates a failure rate of 11%, including gas cap and 
visual inspection failures. Very few cars fail the expensive ASM test.
    Response: The period of evaluation took place during the start-up 
period of the program, and the results are based upon the use of phase-
in standards for the ASM test. It is not unexpected for the failure 
rates to be low during such a period. EPA expects the ongoing program 
evaluation to show increased failure rates upon implementation of

[[Page 30405]]

final tailpipe and evaporative testing standards. Again, the enhanced 
I/M program is only one of many control measures implemented to reduce 
ozone precursors, and it is not possible to monitor directly the 
benefits of the I/M program alone in reducing ambient ozone levels.

III. Final Action

    EPA is approving Pennsylvania's August 21, 1998 SIP supplement as a 
revision to the Pennsylvania SIP. By doing so, EPA is approving the 
demonstration of the effectiveness of its decentralized program testing 
format submitted by Pennsylvania, entitled ``National Highway Systems 
Designation Act Good Faith Estimate Description of Program 
Effectiveness''. EPA's approval of this mandated demonstration, is 
being done pursuant to section 348 of the NHSDA and section 110(k) of 
the Clean Air Act. This approval removes the interim status of EPA's 
conditional interim approval of the Pennsylvania enhanced I/M SIP 
promulgated on January 28, 1997 (see 62 FR 4004). EPA's approval also 
serves to approve contractual materials and state documents that were 
submitted by Pennsylvania as part of its August 21, 1998 SIP 
supplement, for the purpose of remedying seven de minimus deficiencies 
identified by EPA in its January 28, 1997 interim conditional approval 
of Pennsylvania's I/M program SIP. For a detailed description of these 
submitted materials, see EPA's September 16, 1998 direct final rule (63 
FR 49436). EPA received no adverse comments related to approval of 
these materials to remedy the related de minimus SIP deficiencies.

IV. Administrative Requirements

A. Executive Orders 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from review under E.O. 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 12875

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a state, local, or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If EPA complies by consulting, E.O. requires EPA to 
provide to the Office of Management and Budget a description of the 
extent of EPA's prior consultation with representatives of affected 
state, local, and tribal governments, the nature of their concerns, 
copies of written communications from the governments, and a statement 
supporting the need to issue the regulation. In addition, E.O. 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of state, local, and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.'' 
Today's rule does not create a mandate on state, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of E.O. 12875 
do not apply to this rule.

C. Executive Order 13045

    E.O. 13045, entitled ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies 
to any rule that the EPA determines (1) is ``economically 
significant,'' as defined under E.O. 12866, and (2) the environmental 
health or safety risk addressed by the rule has a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency. This final rule is not subject 
to E.O. 13045 because it is not an economically significant regulatory 
action as defined by E.O. 12866, and it does not address an 
environmental health or safety risk that would have a disproportionate 
effect on children.

D. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly affects or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If EPA complies by 
consulting, Executive Order 13084 requires EPA to provide to the Office 
of Management and Budget, in a separately identified section of the 
preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to develop an effective process permitting elected and 
other representatives of Indian tribal governments ``to provide 
meaningful and timely input in the development of regulatory policies 
on matters that significantly or uniquely affect their communities.'' 
Today's rule does not significantly or uniquely affect the communities 
of Indian tribal governments. This action does not involve or impose 
any requirements that affect Indian Tribes. Accordingly, the 
requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. This final rule will not have a significant impact on a 
substantial number of small entities because SIP approvals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements but simply approve requirements that the State is 
already imposing. Therefore, because the Federal SIP approval does not 
create any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
Moreover, due to the nature of the Federal-State relationship under the 
Clean Air Act, 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).

F. 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 
annual 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

[[Page 30406]]

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 annual 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.

G. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit 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 United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this Pennsylvania I/M approval action must be filed 
in the United States Court of Appeals for the appropriate circuit by 
August 9, 1999. Filing a petition for reconsideration by the 
Administrator of this final rule 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).)

List of Subjects in 40 CFR Part 52

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

    Dated: May 27, 1999.
W. Michael McCabe,
Regional Administrator, Region III.

    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 et seq.

Subpart NN--Pennsylvania

    2. Section 52.2026 is amended by revising the introductory 
paragraph to read as follows:


Sec. 52.2026  Conditional approval.

    The Commonwealth of Pennsylvania's March 27, 1996 submittal of its 
enhanced motor vehicle emissions inspection and maintenance (I/M) 
program; as amended on June 27, 1996, July 29, 1996, November 1, 1996, 
November 13, 1997, February 24, 1998, and August 21, 1998; is 
conditionally approved pending satisfaction of paragraph (a)(2) of this 
subsection.
* * * * *
    (a) * * *
    3. Section 52.2026 is further amended by removing and reserving 
paragraphs (b) (1), (5), (7), (8), (9), (10), and (14).

[FR Doc. 99-14357 Filed 6-7-99; 8:45 am]
BILLING CODE 6560-50-U