[Federal Register Volume 64, Number 229 (Tuesday, November 30, 1999)]
[Proposed Rules]
[Pages 66829-66832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30781]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA72-7206C; A-1-FRL-6481-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Massachusetts; Enhanced Motor Vehicle Inspection and Maintenance 
Program and Rate of Progress Emission Reduction Plans

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplementary proposed rule.

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SUMMARY: The EPA is providing additional information and reopening the 
comment period for two notices of proposed rulemaking to approve State 
Implementation Plan (SIP) revisions submitted by the Commonwealth of 
Massachusetts. These documents were published in the Federal Register 
on September 27, 1999. The first is a rulemaking action proposing 
approval of the Massachusetts motor vehicle inspection and maintenance 
(I/M) program (64 FR 51937), and the second is a rulemaking action 
proposing approval of the Massachusetts rate-of-progress plans for 
reducing the emissions of ozone precursors in the Springfield ozone 
nonattainment area (64 FR 51943). This document reopens the comment 
period on both of these rules and provides additional information on 
the I/M test to be used in Massachusetts and the timing of 15% and 9% 
rate-of-progress plan reductions. This action is being taken under the 
Clean Air Act.

DATES: Written comments must be received on or before December 30, 
1999. Public comments on this document are requested and will be 
considered before taking final action on this SIP revision.

ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director, 
Office of Ecosystem Protection (mail code CAA), U.S. Environmental 
Protection Agency, Region I, One Congress Street, Suite 1100, Boston, 
MA 02114-2023. Copies of Massachusetts' submittal and EPA's technical 
support document are available for public inspection during normal 
business hours, by appointment at the Office of Ecosystem Protection, 
U.S. Environmental Protection Agency, Region I, One Congress Street, 
11th floor, Boston, MA; and the Division of Air Quality Control, 
Department of Environmental Protection, One Winter Street, 8th Floor, 
Boston, MA 02108.

FOR FURTHER INFORMATION CONTACT: Peter Hagerty, (617) 918-1049.

SUPPLEMENTARY INFORMATION: On March 27, 1997, the Commonwealth of 
Massachusetts submitted an inspection and maintenance plan under the 
provisions on the National Highway Systems Designation Act. On July 14, 
1997, EPA published in the Federal Register (62 FR 37506) an Interim 
Final Rule conditionally approving the Commonwealth's I/M SIP. The 
notice conditioned approval on start-up of the program by November 15, 
1997, which was based on a commitment made by the Commonwealth as part 
of the SIP submittal. That Federal Register notice also listed other 
elements of the I/M program for which the Commonwealth was required to 
submit additional information. By means of a November 14, 1997, letter, 
EPA notified Massachusetts that EPA was converting the conditional 
approval of the enhanced I/M SIP revision to a disapproval on November 
15, 1997 due to the fact that the program was not starting on November 
15, 1997. The letter triggered the 18-month time clock for the 
mandatory application of sanctions under section 179(a) of the CAA. 
Therefore, the Act's offset sanction applied beginning May 15, 1999 
because Massachusetts still had no enhanced I/M program started or 
approved as part of its SIP.

I. Enhanced I/M SIP

    In order to remedy the failure to start its enhanced I/M program in 
November 1997, Massachusetts submitted a revision to its SIP on May 14, 
1999 for an enhanced I/M program to begin on October 1, 1999. The 
Commonwealth in fact commenced operation of the program on October 1, 
1999. Although the Commonwealth commenced operation of the I/M program 
on October 1, 1999, there were routine start-up difficulties which 
required that DEP temper full enforcement of the program for two and 
one half months. During October, November and early December 1999, the 
Commonwealth is allowing drivers to obtain temporary stickers approving 
cars to operate for a year if a station in the program did not have 
fully operational test equipment ready when a driver came in for a 
test. In a November 15, 1999 letter to EPA, the Commonwealth has 
indicated that such temporary stickers will not be available starting 
December 15, 1999, and any car that must get tested will be required to 
find a station with operable testing equipment. This step ensures that 
the I/M program will meet EPA's definition of start-up and that the 
Commonwealth is fully enforcing an approvable I/M program as of 
December 15, 1999.
    In the September 27, 1999 proposed approval of the I/M program (64 
FR 51937), there were other elements of the I/M SIP which needed to be 
addressed prior to final action by EPA. These elements will be 
addressed by the contractor the Commonwealth has retained to implement 
the program and are listed as work elements of the contractor's scope 
of services. Since the focus of the contractor and the Commonwealth has 
been program start-up, these elements have not been addressed by the 
contractor to date. In response to EPA's September 27, 1999 proposed 
approval which describes the program elements Massachusetts must 
supplement, the Commonwealth submitted in a letter dated November 3, 
1999 a schedule for submitting these elements from January to March 
2000. As stated before, a November 15, 1999 letter informed EPA that 
the Commonwealth has taken steps that ensure the I/M program will be 
fully enforced starting December 15, 1999. Additional information 
submitted in support of the Commonwealth's I/M program is included in 
the contract with Keating Technologies signed January 28, 1999, 
Department of Environmental Protection (DEP) Regulations, chapter 310 
CMR 60.02, and Registry of Motor Vehicles Regulations, chapter 540 CMR 
4.00-4.09, and administrative items, including a description of the 
program being implemented and DEP's response to comments document dated 
May 14, 1999.
    Starting on October 1, 1999, the Commonwealth began implementing a 
31 second transient test utilizing the BAR 31 trace and NYTEST 
equipment. In the September 27, 1999 proposed

[[Page 66830]]

rulemaking, EPA inaccurately stated that the Commonwealth will use an 
IM240 test with NYTEST equipment and inaccurately implied that the test 
the Commonwealth was conducting should be allowed IM240 emission 
reduction credit. There is no data available at this time to assign the 
exact emission reduction credit for the combination of test type and 
equipment that the Commonwealth is implementing. Nevertheless, even if 
one makes extremely conservative assumptions about the efficacy of the 
Massachusetts test, EPA's mobile modeling shows that the I/M program 
demonstrates compliance with EPA's performance standard for a low 
enhanced program. EPA's analysis of these conservative assumptions is 
available in a technical support document in the docket for this 
action.

II. Massachusetts 15% and 9% Plans for the Springfield 
Nonattainment Area

    On April 1, 1999, June 25, 1999, and September 9, 1999, the 
Commonwealth of Massachusetts submitted revisions to its 15% and 9% 
rate-of-progress plans for the Springfield serious ozone nonattainment 
area. These revisions contain a new start-up date for the 
Commonwealth's automobile I/M program (i.e., October 1, 1999), and 
revised emission reduction estimates for this program. In the September 
27, 1999 Federal Register, EPA proposed approval of the rate-of-
progress (ROP) emission reduction plans as revisions to the 
Commonwealth's SIP (64 FR 51943). As stated in the September 27, 1999 
proposed rulemaking, the Commonwealth's ROP plans contain a 
demonstration that the amount of emission reductions required in its
15% and 9% plans pursuant to sections 182 (b)(1) and (c)(2) of the 
Federal Clean Air Act can be achieved despite lessening the emission 
reductions attributable to the I/M program because of its delayed 
start-up date. The Commonwealth achieved the required reductions in 
ozone precursors by November 15, 1999, primarily by changing the way 
that emission increases due to growth were determined, based on more 
accurate date of actual growth rates rather than earlier inflated 
projections. This demonstration was the basis of EPA's September 27, 
1999 proposed approval.
    As discussed above, however, emission tests under the enhanced I/M 
program were phased in over a two and one half month period in October, 
November and December, 1999. Also, EPA is using more conservative 
assumptions of the amount of credit derived from the combination of I/M 
test type and equipment that the Commonwealth is implementing. 
Therefore, it is no longer certain that the Commonwealth will achieve 
the emission reductions required of 15% and 9% plans by the November 
15, 1999 evaluation date originally assumed. What is more certain is 
that the required reductions will be achieved sometime in early 2000 as 
more and more of the vehicles registered in Massachusetts are subject 
to more stringent emission testing under the Commonwealth's enhanced I/
M program which started on October 1, 1999. Based on the volume of 
vehicles subject to emission testing each month, EPA believes the 
estimated reductions from I/M needed for the
15% and 9% plans will definitely be achieved and surpassed by the end 
of April 2000, prior to the next ozone season. EPA believes that these 
reductions are being achieved as expeditiously as practicable and that 
no other reasonable emissions control strategy would allow the 
Commonwealth or EPA to achieve these reductions sooner. In the future, 
Massachusetts will conduct necessary comparison testing to determine 
the appropriate emission reduction for SIP credit using the combination 
of the BAR 31 transient trace with NYTEST equipment. This will be 
important for purposes of approving the ozone attainment demonstration 
for the one-hour ozone standard submitted by the Commonwealth on July 
27, 1998. In that submittal, the Commonwealth is relying on more 
substantial reductions from the enhanced I/M program it is implementing 
to show attainment with the one-hour ozone standard. When EPA acts on 
the attainment demonstration, we will evaluate whether Massachusetts 
has adequately demonstrated that the emission reduction credit it is 
claiming for its
I/M program in that attainment demonstration is warranted for the 
combination of test type and equipment that the Commonwealth is 
implementing.
    For a more detailed discussion of EPA's evaluation of when the 
emission reductions required of 15% and 9% plans will be achieved, the 
reader should refer to the Technical Support Document (TSD) entitled, 
``Revised Technical Support Document for the Massachusetts 15% and 9% 
plans'' dated November 10, 1999. Copies of this TSD are available at 
the previously mentioned addresses.

III. EPA's Current Rulemaking Actions

    On September 27, 1999, EPA proposed approval of the Massachusetts 
I/M SIP revision to meet the requirements of the federal I/M rule. In 
addition, on the same day EPA proposed approval of the Massachusetts 
rate-of-progress emission reduction plans which includes the 15% plan. 
These actions are tied together because in order for Massachusetts to 
meet the low enhanced performance standard for I/M, the 15% plan must 
be approvable. Elsewhere in today's Federal Register, EPA is publishing 
an Interim Final Determination that Massachusetts has taken the actions 
necessary to fully enforce an approvable I/M SIP as of December 15, 
1999. This action will stay the imposition of sanctions starting 
December 15, 1999, until the SIP is either approved or partially 
disapproved. In the proposed rule for the Massachusetts I/M program, 
EPA proposed in the alternative to issue a limited approval/limited 
disapproval of the program if Massachusetts fails to start the program 
in a timely manner or fails to submit any of the program elements that 
the Contractor will provide under its scope of work. The limited 
disapproval would effectively withdraw the proposed approval. 
Withdrawal of the proposed approval would result in growth sanctions 
and highway sanctions going into effect immediately.

IV. Proposed Action

    EPA is reproposing approval of both the Massachusetts inspection 
and maintenance program statewide and the rate of progress plans for 
the Springfield nonattainment area which were originally proposed for 
approval on September 27, 1999 (64 FR 51937, 64 FR 51943). EPA is 
soliciting public comments on the issues discussed in this proposal or 
on other relevant matters. These comments will be considered before EPA 
takes 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 action.
    The Agency has reviewed this request for revision of the Federally-
approved State implementation plan for conformance with the provisions 
of the 1990 amendments enacted on November 15, 1990.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any State implementation plan. Each request for revision to 
the State implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in

[[Page 66831]]

relation to relevant statutory and regulatory requirements.

V. Administrative Requirements

A. Executive Order 12866

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

B. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This final rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
Thus, the requirements of section 6 of the Executive Order do not apply 
to this rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have 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 rule is not subject to E.O. 13045 because it does not involve 
decisions intended to mitigate environmental health or safety risks.

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, or EPA consults with those 
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 officials 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

    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 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 Sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the 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 proposed does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
requirements.
    Accordingly, no additional costs to State, local, or tribal 
governments, or to the private sector, result from this action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Particulate

[[Page 66832]]

matter, Reporting and recordkeeping requirements, Sulfur oxides.

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

    Dated: November 15, 1999.
John P. DeVillars,
Regional Administrator, Region I.
[FR Doc. 99-30781 Filed 11-29-99; 8:45 am]
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