[Federal Register Volume 64, Number 129 (Wednesday, July 7, 1999)]
[Proposed Rules]
[Pages 36635-36639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17210]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE039-1021; FRL-6372-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware Enhanced Motor Vehicle Inspection and Maintenance (I/M) 
Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the State of Delaware. This action proposes 
approval of revisions to the enhanced motor vehicle inspection and 
maintenance (I/M) SIP submitted by the Delaware Department of Natural 
Resources and Environmental Control (DNREC). Because EPA has determined 
that the conditions of its May 19, 1997 conditional approval of 
Delaware's enhanced I/M SIP have now been satisfied, this action 
proposes to remove those conditions and to grant full approval of the 
enhanced I/M SIP.

DATES: Written comments must be received on or before August 6, 1999.

ADDRESSES: Written comments may be mailed to David Arnold, Chief, Ozone 
and Mobile Sources Branch, Mailcode 3AP21, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103. 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; Delaware Department 
of Natural Resources & Environmental Control, 89 Kings Highway, P.O. 
Box 1401, Dover, Delaware 19903.

FOR FURTHER INFORMATION CONTACT: Jill Webster, (215) 814-2033, or by e-
mail at Webster.J[email protected].

SUPPLEMENTARY INFORMATION: The information in this section is organized 
as follows:

    A. What is today's action?
    B. Why is EPA taking this action?
    C. Why did Delaware make these changes?

[[Page 36636]]

    D. What are the new changes to Delaware's I/M program?
    E. How did EPA review Delaware's submittal?
    F. How did Delaware satisfy the deficiencies identified in the 
conditional approval?
    G. What are the specifics of the new I/M program changes?
    H. What is the process for EPA approval of this action?
    I. Where can I get additional background information on this 
action?
    J. How this document complies with the Federal Administrative 
Requirements for Proposed Rulemaking.

A. What is Today's Action?

    On May 19, 1997, EPA conditionally approved Delaware's enhanced 
Inspection and Maintenance (I/M) program. On June 16, 1998, Delaware 
submitted a SIP revision to satisfy the conditions established in the 
May 19, 1997 conditional approval. Because EPA has determined that 
Delaware has satisfied all of the conditions of its May 19, 1997 
conditional approval, EPA is proposing to approve the June 16, 1998 SIP 
revision submittal together with additional I/M SIP revisions submitted 
by DNREC on May 24, 1999.

B. Why is EPA Taking This Action?

    EPA is proposing approval because Delaware has submitted an 
enhanced I/M SIP that meets the requirements of the I/M rule as found 
in 40 CFR 51.350 through 51.373 (the I/M rule). EPA believes that 
Delaware's I/M SIP submittal satisfies the deficiencies imposed in the 
May 19, 1997 conditional approval rule. Furthermore, EPA has determined 
that recent changes made by Delaware to its enhanced I/M program also 
meet the requirements of the I/M Rule.

C. Why did Delaware Make These Changes?

    Delaware revised its I/M SIP to improve air quality and to meet 
requirements of the 1990 Clean Air Act Amendments (the Act) for an 
enhanced I/M program. The Act requires states to make changes to 
improve existing I/M programs or to implement new ones for certain 
nonattainment areas. Both Kent and New Castle counties, are part of the 
Philadelphia-Wilmington-Trenton severe ozone nonattainment area. The 
DNREC submitted a revised SIP to EPA on February 17, 1995 that included 
enhancements to their I/M program. The intent of the revisions was to 
meet the requirements of the Act and the I/M rule. The submittal 
consisted of Regulation Numbers 26 and 33 of the Delaware Regulations 
Governing the Control of Air Pollution.
    EPA identified numerous deficiencies of the February 17, 1995 
submittal. On May 19, 1997, EPA granted Delaware a conditional approval 
of the program, contingent upon Delaware's commitment to submit a 
revised enhanced I/M SIP by June 18, 1998 correcting the deficiencies 
identified in EPA's conditional approval. On June 16, 1998, Delaware 
submitted Regulation 31-Low Enhanced Inspection and Maintenance 
Program, for the purpose of addressing the program deficiencies. 
Regulation 31 replaced Regulation 26 for Kent and New Castle counties. 
Regulation 33 was rescinded and also replaced by Regulation 31.

D. What are the New Changes to Delaware's I/M Program?

    Delaware has also made new changes to its enhanced I/M program. 
Delaware has adopted regulations that incorporate Low Emitter Profile 
(LEP) modeling, expanded model year exemptions, and a two-speed idle 
test. The LEP modeling is commonly referred to as ``clean screening''. 
These revisions were submitted to EPA on May 24, 1999.

E. How did EPA Review Delaware's Submittal?

    First, EPA reviewed the June 16, 1998 SIP revision submittal to 
verify that Delaware's enhanced I/M program satisfied the conditions 
imposed in the May 19, 1997 conditional approval. Second, EPA reviewed 
the new program changes submitted on May 24, 1999 to verify that 
Delaware's enhanced I/M program still conformed to requirements of the 
Act and the I/M rule.

F. How did Delaware Satisfy the Deficiencies Identified in the 
Conditional Approval?

    As previously explained, EPA had identified various deficiencies of 
Delaware's I/M program. Most of these deficiencies related to 
insufficient administrative requirements and lack of supporting 
documentation. On June 16, 1998 and on May 24, 1999, DNREC submitted 
revisions to its conditionally approved enhanced I/M program. EPA used 
the ``Inspection and Maintenance Program SIP Requirements Checklist'' 
as a guideline for performing a detailed review of both the June 16, 
1998 and May 24, 1999 submittals. The checklist is part of the 
technical support document (TSD) for this rulemaking. The details of 
the checklist review are not outlined in this notice, but are available 
in the TSD. The TSD is available, upon request, from the EPA Regional 
Office listed in the ADDRESSES section of this document. This document 
will briefly describe the conditions satisfied by Delaware.
    Table 1. briefly describes how Delaware satisfied the I/M 
requirement. The table also identifies the location in the Delaware 
submittal that contains the required information.

                                Table 1.
------------------------------------------------------------------------
                                Corrective action      Location in SIP
         Deficiency             taken by Delaware         submittal
------------------------------------------------------------------------
Required provisions covering  Delaware Regulation   Delaware Regulation
 all requirements of           31 includes ZIP       31, section 1 and
 Applicability, 40 CFR         codes for all         Appendix 1(d).
 51.350, including ZIP codes   covered areas and
 for all covered areas and     letter from
 statement by authorized       Secretary of the
 Delaware official that the    Delaware Department
 program requirement will      of Natural
 not sunset.                   Resources &
                               Environmental
                               Control, Christophe
                               A.G. Tulou, stating
                               that the program
                               will stay in place
                               throughout
                               attainment and
                               maintenance period
                               for ozone.
Did not submit modeling that  Submittal included    Delaware Regulation
 demonstrated meeting the      modeling that         31, section 2; Plan
 performance standard by       demonstrated          for Implementation,
 failing to include            meeting the           section 2 and
 provisions for an on-road     performance           Appendix 2(b).
 testing program; Enhanced I/  standard with the
 M Performance Standard 40     new program
 CFR 51.351.                   changes, and
                               included an on-road
                               testing program.
Insufficient network type     Delaware Regulation   Delaware Regulation
 description and a long term   31 includes network   31, section 3 and
 program evaluation; Network   type description      Appendix 3(a)(7);
 Type and Program Evaluation   and the Plan for      Plan for
 40 CFR 51.353.                Implementation        Implementation,
                               includes program      section 3.
                               evaluation
                               description.

[[Page 36637]]

 
Did not submit a resource     The Plan for          Plan for
 Budget Plan and other         Implementation        Implementation,
 requirements of Adequate      includes resource     section 4, Appendix
 Tools and Resources 40 CFR    budget plan           4(a), and Appendix
 51.354.                       necessary for         4(b).
                               program operation.
Insufficient description of   Delaware Regulation   Delaware Regulation
 test frequency other          31 describes the      31, section 4 and
 requirements of Test          test frequency in     Plan for
 Frequency and Convenience     detail, as well as    Implementation,
 40 CFR 51.355.                how testing and       section 5.
                               short wait times
                               are insured.
Lack of description of        Delaware Regulation   Delaware Regulation
 vehicles covered by the       31 provides the       31, section 5 and
 program and other             necessary             Appendix 5(f). Plan
 requirements of Vehicle       description of        for Implementation,
 Coverage 40 CFR 51.356.       vehicle coverage      section 6.
                               and the Plan for
                               Implementation
                               provides estimation
                               of special
                               exemptions.
Insufficient detail           Delaware Regulation   Delaware Regulation
 regarding test procedures     31 includes           31, section 6,
 and evaporative test          appropriate test      Appendix 6(a),
 standards; Test Procedures    procedures and        Appendix 6(a)(5),
 and Standards 40 CFR 51.357.  standards*.           and Appendix
                                                     6(a)(8).
Lack of detail regarding      The Plan for          Plan for
 test equipment, including     Implementation        Implementation,
 specifications and other      includes all          section 8 and
 requirements of Test          pertinent equipment   Appendix 8(a).
 Equipment 40 CFR 51.358.      specifications and
                               other necessary
                               equipment
                               information.
Did not submit all necessary  The Plan for          Plan for
 equipment calibration         Implementation        Implementation,
 procedures and quality        includes all          section 9, Appendix
 control measures; Quality     necessary quality     9(a)(1), Appendix
 Control 40 CFR 51.359.        control and           9(c), and Appendix
                               calibration           9(c).
                               procedures.
Lack of necessary waiver      Delaware Regulation   Delaware Regulation
 requirement of minimum        31 includes the       31, section 7 and
 expenditure of at least       necessary waiver      Appendix 7(a). Plan
 $450, adjusted annually to    expenditure           for Implementation,
 reflect changes in the        requirement of        section 10.
 Consumer Price Index (CPI)    minimum $450
 and other requirements of     adjusted annually
 Waivers & Compliance via      to reflect changes
 Diagnostic Inspection 40      in CPI compared to
 CFR 51.360.                   1989**.
Insufficient detail           Delaware Regulation   Delaware Regulation
 regarding Delaware's          31 provides           31, section 8 and
 registration denial process   sufficient detail     Appendix 8 (a).
 and how it's linked with      regarding             Plan for
 the inspection process;       Delaware's            Implementation,
 Motorist Compliance           registration denial   section 11,
 Enforcement 40 CFR 51.360.    system and motorist   Appendix 11(b),
                               compliance.           Appendix 11(c)(1).
Lack of detailed description  The Plan for          Plan for
 of Delaware's quality         Implementation        Implementation,
 assurance program including   details all of        section 9, Appendix
 details of auditing           Delaware quality      9 (a)(1), Appendix
 procedures, inspector         assurance             9(b), and Appendix
 training, and fraud           procedures and all    9(c).
 prevention as well as other   necessary quality
 requirements of Quality       assurance
 Assurance 40 CFR 51.363.      requirements.
Lack of detail regarding      Delaware Regulation   Delaware Regulation
 enforcement against           31 provides           31, section 9 and
 stations, contractors, and    sufficient detail     Appendix 9(a).
 inspectors; Enforcement       of enforcement and
 Against Contractors,          disciplinary
 Stations, and Inspectors 40   actions to be taken
 CFR 51.364.                   with regard to
                               stations,
                               contractors, and
                               inspectors.
Submittal did not include     The Plan for          Plan for
 data collection procedures    Implementation        Implementation,
 or provisions for data        details all data      section 15.
 collection and other          collection
 requirements of Data          procedures and data
 Collection 40 CFR 51.365.     collected.
Submittal did not include     The Plan for          Plan for
 data analysis and reporting   Implementation        Implementation,
 procedures required in Data   details data          section 16.
 Analysis and Reporting 40     analysis and
 CFR 51.366.                   reporting
                               procedures.
Lack of description of        The Plan for          Plan for
 Inspector training and        Implementation        Implementation,
 training course; Inspector    contains an           section 17 and
 Training and Licensing or     overview of           Appendix 17.
 Certification 40 CFR 51.367.  Inspector training
                               and other
                               requirements of
                               inspector
                               certification.
Submittal did not include     The Plan for          Plan for
 measures/provisions that      Implementation        Implementation,
 will be implemented to        describes             section 18 and
 protect the consumer and      Delaware's process    Appendix 18.
 provide for public            for consumer
 awareness; Public             protection and
 Information and Consumer      public education.
 Awareness 40 CFR 51.368.
Submittal did not include a   The Plan For          Delaware Regulation
 description of the steps      Implementation        31, section 10.
 Delaware will take to         provides Delaware's   Plan for
 ensure effective repairs,     procedures for        Implementation,
 as well as other              ensuring repair       section 19.
 requirements of Improving     effectiveness.
 Repair Effectiveness 40 CFR
 51.369.
Submittal did not include     EPA advised Delaware  Delaware Regulation
 methods for ensuring that     to reserve this       31, section 11 and
 vehicles subject to           section in            Plan for
 emission related recalls      Regulation 31         Implementation,
 receive necessary repairs     Delaware will         section 20.
 prior to completing           supplement the
 emission test/registration;   reserved section,
 Compliance with Recall        subsequent to EPA
 Notices 40 CFR 51.368.        issuing guidance
                               with regard to
                               recalls. EPA
                               believes that by
                               reserving
                               compliance with
                               recalls in the SIP,
                               Delaware has
                               satisfied this
                               condition for the
                               purpose of this
                               rulemaking.
Lack of provisions for        Delaware Regulation   Delaware Regulation
 implementing an on-road       31 and the Plan for   31, section 12 and
 testing program and other     Implementation        Plan for
 requirements of On-Road       sufficiently          Implementation,
 Testing 40 CFR 51.371.        provides for an on-   section 21.
                               road testing
                               program.
------------------------------------------------------------------------
*The two-speed idle test that Delaware will implement varies slightly
  from the EPA test procedure. The length of preconditioning is
  shortened as compared to EPA guidance. EPA has previously approved
  this test procedure change in other areas.
**Delaware will implement a waiver of $450 January 1, 2000. Delaware
  will not meet the requirement to implement a full waiver amount of
  $450, plus CPI adjustment until January 1, 2001.


[[Page 36638]]

G. What are the Specifics of the New I/M Program Changes?

LEP Modeling (Clean Screening)

    As previously stated, Delaware has also promulgated new program 
changes to alleviate long motorist wait times. Delaware incorporated 
provisions that allow clean screening when motorists must wait more 
than 60 minutes for an inspection.
    What is LEP modeling (clean screening) and how does it work? LEP 
modeling is the exemption of some vehicles based upon historical 
emissions test performance. The LEP model flags certain makes, model 
years, and engine families as likely low emitting vehicles. During busy 
hours of operations, the Delaware Division of Motor Vehicles (DMV) may 
exempt vehicles that the LEP model predicts to be low emitting. Clean 
screening exemptions will only occur when motorists must wait more than 
60 minutes for an inspection. And the DMV will only exempt, by LEP 
modeling, a predetermined number of vehicles on an annual basis.
    Additional information about the methodology of the LEP model is 
contained in a dKC del la Torre report titled ``Assessment of 
Alternative I/M Test Scenario,'' February 6, 1998. A copy of that 
report is in the rulemaking docket of this proposed rulemaking and is 
available for public inspection. Additional information regarding 
Delaware's process for LEP modeling (clean screening) and pertinent 
regulatory requirements, are also found in the TSD.
    Delaware plans to implement LEP modeling provisions starting 
January 1, 2000.

Model Year Exemption Expansion and 2-Speed Idle Test

    Delaware will expand the model year exemptions to the five newest 
model years. The implementation date of the exemption expansion is 
September 1, 1999. After this date, the newest five model year vehicles 
will be exempt from the emissions inspection process.
    Delaware will also change the exhaust test that will be performed 
on 1981 and newer vehicles. The new test type will be a two-speed idle 
test. The two-speed idle test will measure vehicle emissions at idle 
speed and at 2500 rpm. Vehicles that are older than 1981 will continue 
to be tested with the current idle test. Delaware will implement the 
new test procedure on November 1, 1999.

H. What is the Process for EPA Approval of This Action?

    EPA's review of this material indicates that Delaware has met their 
commitment to address the conditions identified in the February 5, 1997 
conditional approval. EPA is proposing to approve the Delaware SIP 
revision for the Low Enhanced Inspection and Maintenance Program, which 
was submitted on June 16, 1998. EPA is also proposing to approve 
additional revisions to the I/M program, submitted on May 24, 1999. EPA 
is soliciting public comments on its proposed approval that Delaware's 
June 16, 1998 submittal satisfies the conditions imposed in the May 19, 
1997 conditional approval and its proposed approval of additional 
revisions to the I/M program, submitted on May 24, 1999. These comments 
will be considered before taking final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to the EPA Regional office listed in the ADDRESSES section of 
this document. We will address all comments in a subsequent final rule. 
There will be no second comment period, so those wishing to comment 
must do so before the comment period closes.

I. Where can I Get Additional Background Information on This 
Action?

    EPA proposed conditional approval of Delaware's Low Enhanced 
Inspection and Maintenance Program in a Federal Register action dated 
February 5, 1997, (62 FR 5361). We conditionally approved the program 
in a Federal Register action, dated May 19, 1997 (62 FR 27195).

J. How This Document Complies With the Federal Administrative 
Requirements for Proposed Rulemaking

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. 12875 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 proposed 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.

[[Page 36639]]

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, E.O. 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, E.O. 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 proposed 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 may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the proposed approval action 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, proposing 
to approve Delaware's I/M SIP, 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 to propose approval of 
Delaware's enhanced I/M SIP.

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.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: June 28, 1999.
Thomas C. Voltaggio,
Acting Regional Administrator, Region III.
[FR Doc. 99-17210 Filed 7-6-99; 8:45 am]
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