[Federal Register Volume 64, Number 169 (Wednesday, September 1, 1999)]
[Rules and Regulations]
[Pages 47670-47674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22452]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[VA092/098-5044; FRL-6428-8]
Approval and Promulgation of Air Quality Implementation Plans;
Commonwealth of Virginia; Enhanced Inspection and Maintenance Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: We are converting the conditional approval of Virginia's
enhanced vehicle inspection and maintenance (I/M) program, which was
granted on May 15, 1997 (62 FR 26746), to a full approval. The Virginia
program was conditionally approved as a revision to its State
Implementation Plan (SIP) in the rule published on May 15, 1997. The
conditions for full approval were described in that rulemaking, and are
also discussed in this document. We have determined that Virginia has
met all of the conditions for a full approval of its enhanced I/M
program, and that the Virginia program meets all the requirements of
the Clean Air Act.
DATES: This rule is effective on October 18, 1999, unless EPA receives
adverse written comment by October 1, 1999. If adverse comment is
received, we will
[[Page 47671]]
publish a timely withdrawal of the direct final rule in the Federal
Register and inform the public that the rule will not take effect.
ADDRESSES: Send written comments to: David L. Arnold, Chief, Ozone and
Mobile Sources Branch, Mailcode 3AP21, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
You may inspect copies of the documents relevant to this action during
normal business hours at the following locations: Air Protection
Division, 14th floor, U.S. Environmental Protection Agency, Region III,
1650 Arch Street, Philadelphia, Pennsylvania 19103; the Air and
Radiation Docket and Information Center, U.S. Environmental Protection
Agency, 401 M Street, SW, Washington, DC 20460; Virginia Department of
Environmental Quality, 629 East Main Street, Richmond, Virginia, 23219.
Please contact Catherine L. Magliocchetti at (215) 814-2174 if you wish
to arrange an appointment to view the docket at the Philadelphia
office.
FOR FURTHER INFORMATION CONTACT: Catherine L. Magliocchetti, (215) 814-
2174, or by e-mail at [email protected].
SUPPLEMENTARY INFORMATION: This Supplementary Information section is
organized as follows:
What action is EPA taking today?
Who is affected by this action?
Who will benefit from this action?
What were the requirements for full approval of the Virginia
program?
How did Virginia fulfill these requirements for full approval?
What Action Is EPA Taking Today?
In this action, we are converting our conditional approval of
Virginia's I/M program as a revision to the SIP to a full approval. We
are also approving Virginia's plan for conducting vehicle emissions
evaluation testing in an alternative manner to Mass Emissions Transient
Testing as described and provided for by 40 CFR 51.353. And, we are
also approving Virginia's short-term evaluation credit demonstration,
as required by provisions of the National Highway Systems Designation
Act of 1995.
Who Is Affected by This Action?
Residents of the following jurisdictions in Northern Virginia: the
counties of Arlington, Fairfax, Loudoun, Prince William, and Stafford;
and the cities of Alexandria, Fairfax, Falls Church, Manassas, and
Manassas Park. It is important to note that our action today does not
impose any new requirements on Virginia residents; we are merely
granting full federal approval (versus the conditional federal approval
previously in place) to the Virginia law and regulations that are
already in place at the state level to implement the enhanced I/M
program in the Commonwealth. These laws and regulations were made part
of the Virginia SIP by the final rule that was published on May 15,
1997.
Who Will Benefit From This Action?
The residents of Virginia will benefit from this program, which is
designed to keep vehicles maintained and operating within pollution
control standards. Since air pollution does not recognize political
boundaries, neighboring states' residents will also benefit from
implementation of this program, designed to prevent excessive vehicle
pollution.
What Were the Requirements for Full Approval of the Virginia
Program?
As specified in the rulemaking published on May 15, 1997, final
approval of Virginia's plan would be granted based upon the following
four requirements:
(1) Virginia complies with all the conditions of its commitment to
EPA, (2) EPA's review of Virginia's program evaluation confirms that
the appropriate amount of program credit was claimed by Virginia, and
achieved with the interim program, (3) Final program regulations are
submitted to EPA, and (4) Virginia's I/M program meets all of the
requirements of EPA's I/M rule, including those deminimis deficiencies
identified in the May 15, 1997 interim final rulemaking.
How Did Virginia Fulfill These Requirements for Full Approval?
On June 16, 1998, Virginia submitted its revised SIP revision to
EPA, correcting the major and deminimis conditions for full approval
(items 1 and 4 above), as detailed in Table 1. This submittal also
contained final program regulations, which fulfilled item 3. The
requirement under item 2, review and approval of Virginia's interim
program credit demonstration, was fulfilled by Virginia's February 2,
1999 submittal which contained an analysis of the program credits, as
demonstrated during the first 6 months of program operation.
Table 1: Satisfaction of the Conditions for Full Approval
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How Virginia satisfied the
Requirement for full approval requirement
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Major Rulemaking Conditions--as summarized from the 5-15-97 rule
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(1) Submit revised program modeling As part of the June 16, 1998
demonstrating compliance with the I/M submittal, Virginia included
performance standard, using actual in- revised modeling that
use program configuration for inputs. demonstrated compliance with
the enhanced I/M performance
standard in all applicable
jurisdictions, using
appropriate program inputs.
(2) Submit the final program On November 30, 1998, Virginia
regulations, including a METT-based submitted an amendment to its
evaluation as required under 40 CFR I/M SIP revision, consisting
51.353. (NOTE: This condition was of a proposed plan for
subsequently amended in a July 9, 1998 conducting vehicle emissions
rulemaking by EPA. This revision evaluation testing in an
extended the deadline for submittal of alternative manner to Mass
the evaluation plan to November 30, Emissions Transient Testing as
1998, and allowed for technologies described and provided for by
other than METT-based testing to be the revised regulation under
used in the program evaluation). 40 CFR 51.353. This submittal
was supplemented by Virginia
on February 22, 1999.
(3) Submit final regulations which Final regulations were included
require and detail approvable test in the June 16, 1998
procedures and equipment submittal, and included test
specifications for all of the procedures and equipment
evaporative and exhaust tests to be specifications for all
used in the Virginia program. evaporative and exhaust tests
to be used in the Virginia
program.
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Deminimis Rulemaking Conditions--as summarized from the 5-15-97 rule
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(1) Satisfy the test frequency As part of the June 16
requirements under 40 CFR 51.355(a), submittal, Virginia adopted
and describe how test frequency will and submitted regulations and
be integrated into the registration procedures that ensure proper
denial motorist enforcement program. enforcement system safeguards,
including registration denial
procedures and integrated
scheduling of vehicle testing.
[[Page 47672]]
(2) Account for testing exemptions in As part of the June 16
the performance standard modeling submittal, Virginia adequately
demonstration, per 40 CFR 51.356(b)(2). addressed the requirements of
this section, and
appropriately modeled the
performance standards credits
using acceptable compliance
rates and vehicle exemption
inputs.
(3) Satisfy the quality control As part of the June 16
requirements, per 40 CFR 51.359. submittal, Virginia submitted
its procedures for quality
control and recordkeeping, in
accordance with this section.
(4) Amend the Virginia regulation to As part of the June 16
comply with 40 CFR 51.360(c)(1). submittal, Virginia included
its regulation and plan for
allowing issuance of the
program waivers to be
administered by the inspector,
with oversight of the process
by the DEQ. Virginia's
description of, and reasoning
for this plan are further
detailed in an April 16, 1997
letter from DEQ to EPA. Most
importantly, VA commits to
monitoring the waiver rate
under this proposed plan, and
to make changes to the waiver
issuance system if the modeled
waiver rate of 3% is exceeded.
EPA believes this is a
reasonable alternative to
agency-issued waivers.
Furthermore, EPA believes that
in passing the NHSDA, Congress
did not intend for this
element of the 1992 I/M
Program Requirements to
pertain to decentralized
programs such as the one in
Virginia. Therefore, EPA will
allow Virginia to implement
this plan, with the noted
precautionary oversight
measures in place to prevent
fraud and abuse of this unique
waiver issuance system.
(5) Satisfy the motorist compliance As part of the June 16
enforcement program oversight submittal, Virginia included
requirements, per 40 CFR 51.362. acceptable compliance
enforcement program oversight
procedures and documentation.
(6) Satisfy the quality assurance As part of the June 16
oversight requirements, per 40 CFR submittal, Virginia included
51.363(e). acceptable quality assurance
oversight procedures and
documentation.
(7) Satisfy the penalty schedule As part of the June 16
requirements, per 40 CFR 51.364(a) and submittal, Virginia included a
(d). procedures document which
includes an acceptable penalty
schedule.
(8) Satisfy the data collection and As part of the June 16
reporting requirements, per 40 CFR submittal, Virginia included
51.365(a). the procedures and
documentation that adequately
address the data collection
and reporting requirements of
this section.
(9) Satisfy the public information As part of the June 16
requirements, per 40 CFR 51.383(a) and submittal, Virginia included a
(b). Public Information Plan that
adequately addresses the
requirements of this section.
(10) Satisfy the repair performance As part of the June 16
monitoring requirements, per 40 CFR submittal, Virginia included
51.369. the regulations and
documentation that adequately
address this requirement.
(11) Satisfy the recall compliance As part of the June 16
requirements, per 40 CFR 51.370. submittal, Virginia committed
to adopt final recall
compliance requirements within
6 months of final guidance
from EPA. Since EPA has not
provided this guidance to the
states, EPA considers Virginia
to have met all obligations up
to date concerning this
requirement.
(12) Satisfy the on-road testing As part of the June 16
requirements, per 40 CFR 51.371. submittal, Virginia committed
to obtain a contractor to
perform the necessary duties
for on-road testing by July
1999.
(13) Submit a list of implementation All implementation milestone
milestone deadlines. deadlines have been met by
Virginia, and are included as
part of the June 16 submittal.
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EPA Action
We are converting the conditional approval of Virginia's enhanced
I/M SIP to full approval. An extensive discussion of Virginia's plan,
and our rationale for its approval was provided in the previous final
rule which conditionally approved the I/M SIP (see 62 FR 26745 and 61
FR 57343), and our Technical Support Documents dated July 19, 1998 and
September 4, 1996. This action to convert our conditional approval to
full approval is being published without prior proposal because we view
this as a noncontroversial revision and we anticipate no adverse
comment. However, in a separate document in this Federal Register
publication, we are proposing this action, should adverse written
comments be filed. This action will be effective without further notice
unless we receive relevant adverse comment by October 1, 1999. Should
we receive adverse comments, we will publish a withdrawal and inform
the public that this action will not take effect. Anyone interested in
commenting on this action should do so at this time. If no such
comments are received, you are advised that this action will be
effective on October 18, 1999.
In 1995, Virginia adopted legislation that provides, subject to
certain conditions, for an environmental assessment (audit)
``privilege'' for voluntary compliance evaluations performed by a
regulated entity. The legislation further addresses the relative burden
of proof for parties either asserting the privilege or seeking
disclosure of documents for which the privilege is claimed. Virginia's
legislation also provides, subject to certain conditions, for a penalty
waiver for violations of environmental laws when a regulated entity
discovers such violations pursuant to a voluntary compliance evaluation
and voluntarily discloses such violations to the Commonwealth and takes
prompt and appropriate measures to remedy the violations. Virginia's
Voluntary Environmental Assessment Privilege Law, Va. Code Section
10.1-1198, provides a privilege that protects from disclosure documents
and information about the content of those documents that are the
product of a voluntary environmental assessment. The Privilege Law does
not extend to documents or information (1) that are generated or
developed before the commencement of a voluntary environmental
assessment; (2) that are prepared independently of the assessment
process; (3) that demonstrate a clear, imminent and substantial
[[Page 47673]]
danger to the public health or environment; or (4) that are required by
law.
On January 12, 1997, the Commonwealth of Virginia Office of the
Attorney General provided a legal opinion that states that the
Privilege Law, Va. Code Section 10.1-1198, precludes granting a
privilege to documents and information ``required by law,'' including
documents and information ``required by federal law to maintain program
delegation, authorization or approval,'' since Virginia must ``enforce
federally authorized environmental programs in a manner that is no less
stringent than their federal counterparts. * * *'' The opinion
concludes that ``[r]egarding section 10.1-1198, therefore, documents or
other information needed for civil or criminal enforcement under one of
these programs could not be privileged because such documents and
information are essential to pursuing enforcement in a manner required
by federal law to maintain program delegation, authorization or
approval.''
Virginia's Immunity law, Va. Code Section 10.1-1199, provides that
``[t]o the extent consistent with requirements imposed by Federal
law,'' any person making a voluntary disclosure of information to a
state agency regarding a violation of an environmental statute,
regulation, permit, or administrative order is granted immunity from
administrative or civil penalty. The Attorney General's January 12,
1997 opinion states that the quoted language renders this statute
inapplicable to enforcement of any federally authorized programs, since
``no immunity could be afforded from administrative, civil, or criminal
penalties because granting such immunity would not be consistent with
federal law, which is one of the criteria for immunity.''
Therefore, EPA has determined that Virginia's Privilege and
Immunity statutes will not preclude the Commonwealth from enforcing its
enhanced inspection and maintenance program consistent with the federal
requirements. In any event, because EPA has also determined that a
state audit privilege and immunity law can affect only state
enforcement and cannot have any impact on federal enforcement
authorities, EPA may at any time invoke its authority under the Clean
Air Act, including, for example, sections 113, 167, 205, 211 or 213, to
enforce the requirements or prohibitions of the state plan,
independently of any state enforcement effort. In addition, citizen
enforcement under section 304 of the Clean Air Act is likewise
unaffected by this, or any, state audit privilege or immunity law.
Administrative Requirements
A. Executive Order 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
[[Page 47674]]
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 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 approval of Virginia's Enhanced Inspection and
Maintenance Program must be filed in the United States Court of Appeals
for the appropriate circuit by November 1, 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, Hydrocarbons,
Incorporation by reference, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements.
Dated: August 16, 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 VV--Virginia
2. Section 52.2420 is amended by adding paragraphs (c)(134) to read
as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(c) * * *
(134) Revisions to the Virginia Regulations, Establishment of the
Vehicle Emissions Inspection and Maintenance Program in the Northern
Virginia Area, submitted on June 16, 1998, November 30, 1998, February
2, 1999 and February 22, 1999, by the Virginia Department of
Environmental Quality:
(i) Incorporation by reference.
(A) Letter of June 16, 1998 from the Virginia Department of
Environmental Quality transmitting an Enhanced Vehicle Emissions
Inspection Program for the Northern Virginia Area.
(B) Regulations for the Enhanced Motor Vehicle Emissions Inspection
Program in the Northern Virginia Area: 9 VAC 5-91-10 et seq.
(C) Letter of November 30, 1998 from the Virginia Department of
Environmental Quality transmitting an Alternative Program Credit
Evaluation Program.
(D) Letter of February 2, 1999 from the Virginia Department of
Environmental Quality, transmitting an Evaluation of Virginia's
Enhanced I/M Program Credits.
(E) Letter of February 22, 1999 from the Virginia Department of
Environmental Quality, supplementing the November 30, 1998 transmittal.
(ii) Additional material.
(A) Remainder of June 16, 1998 submittal,
(B) Remainder of November 30, 1998 submittal, as supplemented on
February 22, 1999, and
(C) Remainder of February 2, 1999 submittal.
Sec. 52.2450 [Amended]
3. In section 52.2450, paragraphs (b), (c) and (d) are removed and
reserved.
[FR Doc. 99-22452 Filed 8-31-99; 8:45 am]
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