[Federal Register Volume 61, Number 198 (Thursday, October 10, 1996)]
[Proposed Rules]
[Pages 53166-53174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25983]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[DC031-2004; DC032-2005; FRL-5617-1]
Approval and Promulgation of Air Quality Implementation Plans;
District of Columbia: Enhanced Motor Vehicle Inspection and Maintenance
Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed disapproval.
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SUMMARY: EPA is proposing disapproval of a State Implementation Plan
(SIP) revision submitted by the District of Columbia on July 13, 1995
and supplemented on March 27, 1996. This revision amends the District's
motor vehicle inspection and maintenance (I/M) program required to be
enhanced under the Clean Air Act. The intended effect of this action is
to propose disapproval of the enhanced I/M program proposed by the
District. This action is being taken under section 348 of the National
Highway System Designation Act of 1995 (NHSDA) and section 110 of the
Clean Air Act (CAA). EPA is proposing disapproval of the District's
enhanced I/M SIP revision because it is deficient with respect to the
requirements of the CAA and EPA's enhanced I/M program regulatory
requirements.
In taking action under section 110 of the CAA it is appropriate to
propose disapproval of the District's enhanced I/M submittal because
there are so many deficiencies with respect to CAA statutory and
regulatory requirements described in more detail below.
DATES: Comments must be submitted by November 12, 1996.
ADDRESSES: Comments may be mailed to David L. Arnold (mailcode 3AT21),
Chief, Ozone and Mobile Sources Section, United States Environmental
Protection Agency--Region III, 841 Chestnut Building, Philadelphia,
Pennsylvania 19107. Copies of the documents relevant to this action are
available for public inspection by appointment during normal business
hours at the U.S. EPA, 841 Chestnut Building, Philadelphia,
Pennsylvania 19107.
FOR FURTHER INFORMATION CONTACT: Kelly A. Sheckler (215) 566-2178.
SUPPLEMENTARY INFORMATION:
I. Background
A. Impact of the National Highway System Designation Act on the Design
and Implementation of Enhanced Inspection and Maintenance Programs
Under the Clean Air Act
The National Highway System Designation Act of 1995 (NHSDA)
establishes two key changes to the enhanced I/M rule requirements
previously developed by EPA. First, under the NHSDA, EPA cannot require
States to adopt or implement centralized, test-only IM240 enhanced
vehicle inspection and maintenance programs as a means of compliance
with section 182, 184 or 187 of the CAA. Second, under the NHSDA, EPA
cannot disapprove a State's SIP revision, nor apply an automatic
discount to a State's SIP revision under section 182, 184 or 187 of the
CAA, because the I/M program in such plan revision is decentralized, or
a test-and-repair program. Accordingly, the so-called ``50% credit
discount'' that was established by the EPA's I/M Program Requirements
Final Rule, (published November 5, 1992, and herein referred to as the
I/M Rule) has been effectively replaced with a presumptive equivalency
criteria, which places the emission reductions credits for
decentralized networks on par with credit assumptions for centralized
networks, based upon a State's good faith estimate of reductions as
provided by the NHSDA and explained below in this section.
EPA's I/M Rule established many other criteria unrelated to network
design or test types for states to satisfy in designing enhanced I/M
programs. All other elements of the I/M Rule, and the statutory
requirements established in the CAA, continue to be required of those
States submitting I/M SIP revisions under the NHSDA. The NHSDA
specifically requires that I/M program submittals must otherwise comply
in all respects with the I/M Rule and the CAA.
The NHSDA also requires states to swiftly develop, submit, and
begin implementation of these enhanced I/M programs, since the
anticipated start-up dates developed under the CAA and EPA's rules have
already been delayed. In requiring states to submit these plans within
120 days of the NHSDA passage, allowing these states to submit proposed
regulations for this plan (which can be finalized and submitted to EPA
during the interim period) and by providing expiration of interim
approval after 18 months of data collected during operation of program,
it is clear that Congress intended for states to begin testing vehicles
as soon as practicable.
Submission criteria described under the NHSDA allow for a state to
submit proposed regulations for this interim program, provided that the
state has all of the statutory authority necessary to carry out the
program. Also, in proposing the interim credits for this program,
states are required to make good faith estimates regarding the
performance of their enhanced I/M program. Since these estimates are
expected to be difficult to quantify, the state need only provide that
the proposed credits claimed for the submission have a basis in fact. A
good faith estimate of a state's program may be an estimate that is
based on any of the following: the performance of any previous I/M
program; the results of remote sensing or other roadside testing
techniques; fleet and vehicle miles traveled (VMT) profiles;
demographic studies; or other evidence which has relevance to the
effectiveness or emissions reducing capabilities of an I/M program.
This action is being taken under the authority of both the NHSDA
and section 110 of the CAA. Section 348 of the NHSDA expressly directs
EPA to interim rulemaking for a period of 18 months. The Conference
Report for section 348 of the NHSDA states that it is expected that the
proposed credits claimed by the State in its submittal, and the
emissions reductions demonstrated through the program data, may not
match exactly. Therefore, the Conference Report suggests that EPA use
the program data to appropriately adjust these credits on a program
basis as demonstrated by the program data.
[[Page 53167]]
B. Interim Approvals Under the NHSDA
The NHSDA directs EPA to grant interim approval for a period of 18
months to approvable I/M submittals under the NHSDA. The NHSDA also
directs EPA and the states to review the program results at the end of
18 months, and to make a determination as to the effectiveness of the
program. Following this demonstration, EPA will adjust any credit
claims made by the state in its good faith effort to reflect the
emissions reductions actually measured by the State during the program
evaluation period. The NHSDA is clear that the interim approval shall
last for only 18 months, and that the program evaluation is due to EPA
by the end of that period. Therefore, EPA believes Congress intended
for these programs to start-up as soon as possible, which EPA believes
should be at the latest, 12 months after the effective date of this
interim rule, November 15, 1997 so that approximately 6 months of
operational program data can be collected to evaluate the interim
program. EPA believes that in setting such a strict timetable for
program evaluations under the NHSDA, Congress recognized and attempted
to mitigate any further delay with the start-up of this program. For
the purposes of this program, ``start-up'' is defined as a fully
operational program which has begun regular, mandatory inspections and
repairs, using the final test strategy and covering each of a state's
required areas. If a state fails to start its program on this schedule,
an interim approval granted under the provisions of the NHSDA will
convert to a disapproval after a finding letter is sent to the state.
The program evaluation to be used by the state during the 18 month
interim period must be acceptable to EPA. EPA anticipates that such a
program evaluation process will be developed by the Environmental
Council of States (ECOS) group that is convening now and that was
organized for this purpose. EPA further anticipates that in addition to
the interim, short term evaluation, the state will conduct a long term,
ongoing evaluation of the I/M program as required in 40 CFR 51.353 and
51.366.
C. Process for Full Approvals of This Program Under the CAA
The District must submit a SIP revision correcting the deficiencies
identified herein as described below in order for EPA to withdraw this
proposed disapproval action, and to move forward to propose and
finalize approval of the District's enhanced I/M SIP revision under
sections 110, 182, 184 or 187 of the CAA.
II. EPA'S Analysis of The District of Columbia's Submittal
On July 13, 1995, the District of Columbia Department of Consumer
and Regulatory Affairs (DCRA) submitted revisions to its State
Implementation Plan (SIP) for an enhanced I/M program. On March 27,
1996, the District submitted, as a supplement to the July 13, 1995
submittal, a SIP revision requesting consideration under the NHSDA. The
revision consists of: enabling legislation that will allow the District
to implement a biennial I/M program (legal authorities to require the
operation of the program through to the attainment year and beyond as
necessary for maintenance of the standard and to dedicate funding to
develop and implement the program were not provided); final regulations
for portions of the program, and a brief description of the I/M
program. The District's SIP narrative stated that credit assumptions
were based upon a pilot demonstration conducted in the State of
California and data from a remote sensing prescreen demonstration in
Canada, credit for a technician training program as provided by EPA and
the application of the District's own estimate of the effectiveness of
its overall test only program.
A. Analysis of the NHSDA Submittal Criteria
Transmittal Letter
On March 27, 1996, the District of Columbia submittal an enhanced
I/M SIP revision to EPA, requesting action under the NHSDA and the CAA.
The official submittal was made by the appropriate District official,
Hampton Cross, Director of the Department of Consumer and Regulatory
Affairs, and was addressed to the appropriate official in the EPA
Region III Office.
Enabling Legislation
The District of Columbia has legislation at ``Motor Vehicle
Biennial Inspection Amendment Act of 1993'', D.C. Law 10-106, D.C. Code
section 40.201 et seq., effective April 26, 1994. The SIP narrative
provides a statement that Title 18 DCMR has no expiration date.
Enabling legal authority for a registration denial enforcement system
is not clearly provided in the SIP submittal although the SIP submittal
cites such an enforcement mechanism. The SIP submittal is also
deficient in that it lacks enabling authority to implement other
requirements of the I/M program in accordance with the CAA. A detailed
description of these deficiencies is provided below in the section by
section analysis of the District's submittal.
Proposed Regulations
Copies of the District of Columbia Register were provided which
indicated some of the submitted regulations had gone to public notice
and hearing. Public notices for amendments to Title 18 DCMR were
published on April 15, 1994 and July 1, 1994. There is no evidence that
the July 13, 1995 and March 27, 1996 SIP submittals were subject to
public notice and hearing.
Program Description
The District program is a centralized test only network. According
to the submittal's program description, light duty vehicles and trucks
and heavy duty vehicles model years 1968 and newer are covered by the
program. Vehicle model year 1979 and older will be subject to an idle
test. Vehicles model year 1980 and newer will be subject to a short
transient test (BAR31). Vehicles will be prescreened using a remote
sensing device. Vehicles failing the prescreen test will undergo the
appropriate test based upon model year. Passing vehicles will be waived
from the emission test. All vehicles are to be tested for gas cap
integrity and a randomly selected group of vehicles will be inspected
with a non-intrusive evaporative test system. A state-of-the-art
technician training program will be added to the District program.
Emission Reduction Claim and Basis for the Claim
The District's SIP revision assumes that BAR31 test is equivalent
to IM240. No data or any basis in fact is provided in the District's
submittal to support this claim. The District's proposed program
provides for a prescreen using remote sensing. A reduction in emission
credit for the prescreen is provided, however, the basis for the credit
claim is not provided. The District's SIP submittal does not provide
good faith estimates that the program meets the performance standard.
Without a basis in fact, the proposed program does not provide any
assurance that the necessary emission reductions will be achieved.
B. Analysis of the EPA I/M Regulation and CAA Requirements
EPA summarizes the requirements of the I/M Rule as found in 40 CFR
51.350-51.372 and its analysis to the District's submittal below. A
more detailed analysis of the District's submittal is contained in a
Technical Support Document (TSD) available from the Region III office,
listed in the ADDRESSES section of this notice. Parties
[[Page 53168]]
desiring additional details on the I/M rule are referred to 40 CFR
51.350-51.372.
As previously stated, the NHSDA left those elements of the I/M Rule
that do not pertain to network design or test type intact. Based upon
EPA's review of the District's submittal, EPA believes the District has
not complied with all aspects of the NHSDA, CAA and the I/M Rule. For
those sections of the I/M Rule, or of the CAA identified below, with
which the District has not fully complied, the District must submit a
revision to correct said deficiency.
The District must correct these major deficiencies in order for EPA
to provide approval under CAA section 110(k)(4). EPA has also
identified certain minor deficiencies in the SIP, which are itemized
below. EPA has determined that delayed correction of these minor
deficiencies will have a deminimis impact on the District's ability to
meet clean air goals. Therefore, the District need not correct these
deficiencies in the short term, and EPA will not disapprove the re-
submittal with respect to these deficiencies for purposes of interim
approval under the NHSDA, if these are the only outstanding
deficiencies. The District must correct the major deficiencies noted
herein and submit a revised SIP revision for interim approval. However,
even the minor deficiencies must be corrected prior to final full
approval by EPA of the District's enhanced I/M SIP after the 18 month
evaluation period.
Applicability--40 CFR 51.350
Sections 182(c)(3) and 184(b)(1)(A) of the CAA and 40 CFR 51.350(a)
require all states in the Ozone Transport Region (OTR) which contain
Metropolitan Statistical Areas (MSAs) or parts thereof with a
population of 100,000 or more to implement an enhanced I/M program. The
District is part of the OTR and is part of a MSA with a population of
100,000 or more. The entire District is classified as a serious ozone
nonattainment area and also is required to implement an enhanced I/M
program as per section 182(c)(3) of the CAA and 40 CFR 51.350(2). The
District I/M regulation requires that the enhanced I/M program be
implemented District wide. The District I/M legislative authority
(referred to as DC Law 10-106, DC Code 40, Title 18 DCMR throughout the
remainder of this notice) provides the legal authority to establish a
statewide biennial vehicle emission testing program. The federal I/M
regulation requires that the District's program not terminate until it
is no longer necessary. A SIP revision which does not allow termination
of the program prior to the attainment deadline for each applicable
area satisfies this requirement. The District's I/M enabling authority
itself does not address the length of time the program will be in
effect. The program must continue until the attainment dates for all
applicable nonattainment areas in the District. A statement in the SIP
narrative indicates that the enabling legislation has no expiration
date. The SIP submittal does not provide a list of ZIP codes of all
areas covered by the I/M program. Therefore, the District's SIP does
not meet the applicability requirements for geographical coverage.
These are minor deficiencies and must be ultimately corrected for EPA
to give final full approval.
Enhanced I/M Performance Standard--40 CFR 51.351
The enhanced I/M program must be designed and implemented to meet
or exceed a minimum performance standard, which is expressed as
emission levels in area-wide average grams per mile (gpm) for certain
pollutants. The performance standard shall be established using local
characteristics, such as vehicle mix and local fuel controls, and the
following model I/M program parameters: network type, start date, test
frequency, model year coverage, vehicle type coverage, exhaust emission
test type, emission standards, emission control device, evaporative
system function checks, stringency, waiver rate, compliance rate and
evaluation date. The emission levels achieved by the state's program
design shall be calculated using the most current version, at the time
of submittal, of the EPA mobile source emission factor model. At the
time of the District's submittal, the most current version was MOBILE
5a. Areas shall meet the performance standard for the pollutants which
cause them to be subject to enhanced I/M requirements. In the case of
ozone nonattainment areas, the performance standard must be met for
both nitrogen oxide (NOX) and hydrocarbons (HC). In the case of
carbon monoxide areas, the performance standard must be met for carbon
monoxide (CO). The District's submittal must meet the enhanced I/M
performance standard for HC, and NOX statewide.
EPA established an alternative, low enhanced I/M performance
standard to provide flexibility for nonattainment areas that are
required to implement enhanced I/M but which can meet the 1990 Clean
Air Act emission reduction requirements for Reasonable Further Progress
and attainment from other sources without the stringency of the high
enhanced I/M performance standard (60 FR 48029). 40 CFR 51.351(g)
provides that states may select the low enhanced performance standard
if they have an approved SIP for reasonable further progress in 1996,
commonly known as 15% plans. The District's 15% plan relies on credit
from a high enhanced I/M program for 48% of the 15% reduction required.
For this reason the District does not qualify for the low enhanced
performance standard.
EPA also established an alternate, Ozone Transport Region (OTR) low
enhanced I/M performance standard in order to provide OTR qualifying
areas the flexibility to implement a broader range of I/M programs (61
FR 39039). This standard is designed for states in the OTR which are
required to implement enhanced I/M in areas that are designated and
classified as attainment, marginal ozone nonattainment or moderate
ozone nonattainment with a population of under 200,000. The District is
classified as a serious ozone nonattainment area and therefore does not
qualify for the OTR low enhanced I/M performance standard.
The District's submittal includes the following program description
and design parameters:
Network type--Centralized
Start date--1997
Test frequency--biennial
Model year/ vehicle type coverage--1968+ LDV, LDT, HDT
Exhaust emission test type--idle on pre-1980 vehicles; transient BAR31
on 1980 and newer vehicles; all vehicles will be prescreened with
remote sensing device to determine if subject to an emission test
Emission standards--8 HC, 20 CO, 2 NOX
Emission control device--yes
Evaporative system function checks--pressure 1983 +, purge 1977 +
Stringency (pre-1981 failure rate)--20%
Waiver rate--3%
Compliance rate--96%
Evaluation dates--2000, 2005, 2010
The emission levels achieved according to the District's submittal
were modeled using MOBILE5a. The modeling demonstration is insufficient
to make a determination that it reflects the proposed program. Numerous
errors on the start date of various program elements were modeled. The
District's program assumes the BAR31 test as equivalent to IM240. No
test specification and procedures are provided for the BAR31 test. No
data to support the credit claim of equivalency for BAR31 is provided.
The District's
[[Page 53169]]
submittal claims it uses data provided from a California pilot study.
This data is not provided in the submittal. The remote sensing device
(RSD) prescreen feature of the District's program is not accounted for
by the current MOBILE model. Hand calculations are provided by the
District for the RSD portion of the program. However, the reductions
from using RSD and the credit claims are not supported by any data. The
District's submittal's demonstration uses credit from a mechanics
training program to make up the reduction loss from the use of RSD as a
prescreen. The credit assumed for mechanics training is inconsistent
with EPA policy. Furthermore, the modeling demonstration does not
provide headings or labels identifying the MOBILE5a runs making it
extremely difficult to perform a definitive review of the
demonstration. The summary sheets in the District's submittal are
inconsistent with the MOBILE5a runs. Another summary sheet lists all
the evaluated cutpoints but does not indicate which cutpoints the
District plans to use. The discrepancies with the program description
and regulations render the modeling insufficient to make a
demonstration that the District's proposed program meets the high
enhanced performance standard. The District's submittal does not meet
the enhanced I/M performance standards requirements of the federal I/M
rule. This major deficiency is in part the basis for EPA's proposed
disapproval of the District's I/M SIP.
Network Type and Program Evaluation--40 CFR 51.353
The enhanced program must include an ongoing evaluation to quantify
the emission reduction benefits of the program, and to determine if the
program is meeting the requirements of the CAA and the federal I/M
regulation. The SIP must include details on the program evaluation and
must include a schedule for submittal of biennial evaluation reports,
data from a state monitored or administered mass emission test of at
least 0.1% of the vehicles subject to inspection each year, a
description of the sampling methodology, the data collection and
analysis system and the legal authority enabling the evaluation
program.
The District has not committed to meet the program evaluation
requirements of 40 CFR 51.353 and no detailed description of the
biennial program evaluation, including the schedule and methodology is
provided in the submittal. The Environmental Council of States (ECOS)
has formed a committee to develop an evaluation protocol to be used by
states in order to evaluate program effectiveness. ECOS has recommended
that the states follow the long term program evaluation found in 40 CFR
51.353. 40 CFR 51.353 requires that a mass emission transient testing
(METT) be performed on 0.1% of the subject fleet each year. The
District's submittal includes a commitment to provide EPA with a report
two years after the program begins. However, in addition to the
requirements of program evaluation under 40 CFR 51.353, the NHSDA
provides that a state must submit a data analysis and revised SIP by
the end of the 18 month period. The District does not commit to or
provide any reference to this submittal. The District claims that data
will be collected by conducting random procurement of subject vehicles
and remote sensing for in-use vehicles, 2% random effectiveness of
repairs on failing vehicles, RSD on minimum 10,000 vehicles per year,
and covert inspections to evaluate inspectors. These methods are not
consistent with the federal enhanced I/M rule and the ECOS agreement
for the long term evaluation.
Although the submittal describes a test-only network type, there is
no regulation in the District that specifies that the program be
operated in a centralized, test-only format. Furthermore, the
District's SIP submittal includes regulations at section 605 of 18 DCMR
that allow for re-inspection at repair stations. It is EPA's
understanding that more recent regulations have been adopted for a full
test-only network (initial test and re-test). The narrative of the
District's submittal describes a test-only network with no mention of
re-tests at repair stations. The District must address this discrepancy
by submitting the revised versions of the regulations or providing a
basis in fact and effectiveness analysis for the test and repair
portion of the program. No regulations have been provided in the
District's submittal which prohibit owners and/or employees of official
I/M stations from referring vehicle owners to particular repair service
providers. A regulation must be adopted that provides for this. This is
a major deficiency and in part, is the basis for proposed disapproval
of the District's I/M program.
Adequate Tools and Resources--40 CFR 51.354
The federal regulation requires the District to demonstrate that
adequate funding of the program is available. A portion of the test fee
or separately assessed per vehicle fee shall be collected, placed in a
dedicated fund and used to finance the program. Alternative funding
approaches are acceptable if it is demonstrated that the funding can be
maintained. Reliance on funding from the District's general fund is not
acceptable unless doing otherwise would be a violation of its
constitution. The SIP submittal must include a detailed budget plan
which describes the source of funds for personnel, program
administration, program enforcement, and purchase of equipment. The SIP
must also detail the number of personnel dedicated to the quality
assurance program, data analysis, program administration, enforcement,
public education and assistance and other necessary functions.
The District's submittal pending before EPA does not provide for
enabling legal authority establishing a dedicated fund. No
demonstration has been made that this would violate the District's
authorities. Currently, the District government is undergoing a
financial and administrative reorganization and many uncertainties
exist. In relation to consumer protection, the SIP must provide
assurance that adequate funding is available to develop and implement
the program as proposed. Furthermore, funds need to be secured to
implement and maintain the program through attainment. Lack of secured
funding dedicated to the I/M program jeopardizes the ability of the
program to meet the necessary emission reduction goals. The SIP needs
to describe how the emission targets will be met, describe the
resources to be used for all program operations (e.g. RSD prescreen,
quality assurance checks, etc.), and include a final budget plan
including description of equipment resources. The budget plan needs to
provide a demonstration that the District has adequate resources to
perform all program functions and insure future funding through
operation of program until attainment is achieved. Therefore, the
District submittal does not meet the adequate tools and resources
requirements set forth in the federal I/M rule. This major deficiency
in part is the basis for EPA's proposed disapproval of the District's
I/M SIP.
Test Frequency and Convenience--40 CFR 51.355
The enhanced I/M performance standard assumes an annual test
frequency; however, other schedules may be approved if the performance
standard is achieved. The SIP shall describe the test year selection
scheme, how the test frequency is integrated into the enforcement
process and shall
[[Page 53170]]
include the legal authority, regulations or contract provisions to
implement and enforce the test frequency. The program shall be designed
to provide convenient service to the motorist by ensuring short wait
times, short driving distances and regular testing hours.
The District's submittal provides for a program of biennial testing
in a centralized network. Many of the details related to this section
must still be developed by the District before EPA can determine if the
requirements are satisfied. Although the District expects sufficient
testing facilities using RSD as a prescreen, to provide adequate
convenience, there are no provisions for additional testing if
participation is lower than expected. The SIP fails to provide an
evaluation of how the RSD prescreen will ensure short wait times.
Furthermore, the SIP does not provide a description of the test
frequency, or regulations that ensure vehicles are tested at an assumed
frequency, including sufficient safeguards in the enforcement system to
ensure that vehicles are tested according to schedule. These are minor
deficiencies which the District must ultimately correct for EPA to give
final full approval.
Vehicle Coverage--40 CFR 51.356
The performance standard for enhanced I/M programs assumes coverage
of all 1968 and later model year light duty vehicles and light duty
trucks and heavy duty trucks up to 26,000 pounds GVWR, and includes
vehicles operating on all fuel types. Other levels of coverage may be
approved if the necessary emission reductions are achieved. Vehicles
registered or required to be registered within the I/M program area
boundaries and fleets primarily operated within the I/M program area
boundaries and belonging to the covered model years and vehicle classes
comprise the subject vehicles. Fleets may be officially inspected
outside of the normal I/M program test facilities, if such alternatives
are approved by the program administration, but shall be subject to the
same test requirements using the same quality control standards as non-
fleet vehicles and shall be inspected in the same type of test network
as other vehicles in the state, according to the requirements of 40 CFR
51.353(a). Vehicles which are operated on Federal installations located
within an I/M program area shall be tested, regardless of whether the
vehicles are registered in the state or local I/M area.
The federal I/M regulation requires that the SIP must include the
legal authority or rule necessary to implement and enforce the vehicle
coverage requirement, a detailed description of the number and types of
vehicles to be covered by the program and a plan for how those vehicles
are to be identified including vehicles that are routinely operated in
the area but may not be registered in the area, and a description of
any special exemptions including the percentage and number of vehicles
to be impacted by the exemption. Such exemptions shall be accounted for
in the emissions reduction analysis.
The District's SIP submittal does not provide a description of the
number and types (broken down by model year, fuel type, vehicle class,
a weight class) of vehicles the program will cover. The regulations
provide that vehicles model year 1968 and newer, up to a weight of
26,000 gross vehicle weight, must undergo an emissions test. The
District states in the SIP narrative text that it will provide self
testing for fleets, (testing at the fleets facilities, or during
special hours at the District stations), but no regulatory or legally
enforceable provisions are established to provide for this testing.
Although Federal fleets are subject to meet the same requirements as
all District registered vehicles, the District plan does not provide a
plan for testing of Federal vehicles. The SIP needs to provide a
description of the Federal fleet inspection program area. The
District's SIP submittal does not account for vehicles registered or
required to be registered in the programs. The SIP needs to provide an
estimate of unregistered vehicles. The District's SIP submittal claims
that number of vehicles that operate in the District but are not
registered in the District is insignificant. The District offers no
plan to inspect and certify these vehicles. Data to support the
District's claim of insignificance needs to be provided. In light of
the fact that the District of Columbia is a major commuting community
center for vehicles from suburban Maryland and Virginia, EPA questions
whether such vehicles are truly insignificant. Furthermore, the program
needs to provide provisions to account for these vehicles, whether or
not they are insignificant. The SIP submittal and modeling do not
provide a description and accounting of vehicles registered in the
District but operating primarily outside the District. These are minor
deficiencies that must ultimately be corrected for EPA final full
approval.
Test Procedures and Standards--40 CFR 51.357
Written test procedures and pass/fail standards shall be
established and followed for each model year and vehicle type included
in the program. Test procedures and standards are detailed in 40 CFR
51.357 and in the EPA document entitled ``High-Tech I/M Test
Procedures, Emission Standards, Quality Control Requirements, and
Equipment Specifications'', EPA-AA-EPSD-IM-93-1, dated April 1994. The
federal I/M rule also requires vehicles that have been altered from
their original certified configuration (i.e. engine or fuel switching)
to be subject to the requirements of Sec. 51.357(d).
The District regulation Title 18 DCMR provides one set of standards
for all subject vehicles model years. The standards are in a grams per
mile (gpm) format, achieved with a transient test. The District
proposes to use an idle test on a certain percentage of the vehicle
fleet. Standards will need to be adopted in a parts per million (ppm)
format to accommodate the idle test. The District's program proposes to
utilize a BAR31 test, remote sensing prescreen and evaporative test. No
standards exist for remote sensing or the evaporative tests. Nor does
the District provide standards for switched engines. Furthermore, full
test procedures for all tests need to be provided.
The District's SIP states that tests are not to be performed
without prior repair, however, no regulations providing for such a
requirement are provided. No provisions are provided to ensure that the
vehicle owner has access to the test area to observe the entire
inspection. No provision ensures that when a failure on one part of a
test leads to failure on another part, the test procedure for a retest
is done on the originally failed component and the second component as
well. No provision is included which requires that an exhaust emission
retest be required along with a retest of the evaporative system
following an evaporative system failure and repair. No provisions are
provided that require all criteria pollutants be measured on a retest
after failure of a given pollutant. The District's submittal does not
meet the Test Procedures and Standards requirements of the federal I/M
rule. This major deficiency in part is the basis for EPA proposed
disapproval of the District's I/M SIP.
Test Equipment--40 CFR 51.358
Computerized test systems are required for performing any
measurement on subject vehicles. The federal I/M regulation requires
that the state SIP submittal include written technical specifications
for all test equipment used in the program. The specifications shall
describe the
[[Page 53171]]
emission analysis process, the necessary test equipment, the required
features, and written acceptance testing criteria and procedures. The
District provides a draft Request for Bid (RFB) that details the test
equipment specifications. Appendix 8 of the District's submittal, the
draft RFB, provides for IM240 test equipment which the District
proposes to use with a BAR31 test. The evaporative purge system
specifications are not consistent with the requirements of EPA approved
specifications for a purge system. Furthermore, no specifications exist
for equipment used for the remote sensing prescreen. The District's
submittal does not contain the written technical specifications for
test equipment to be used in the program. These are minor deficiencies
and must ultimately be corrected for EPA to give final full approval.
Quality Control--40 CFR 51.359
Quality control measures shall insure that emission measurement
equipment is calibrated and maintained properly, and that inspection,
calibration records, and control charts are accurately created,
recorded and maintained.
The District's submittal includes provisions which describe and
establish quality control measures for the emission measurement
equipment. However, the quality control procedures in Appendix 10 of
the District's SIP submittal are incomplete. Specifically in section
5.1.1 several blanks need to be filled in, figure 5-1 is missing, no
RSD specifications are provided. For the idle test being conducted on
pre-1980 vehicles no equipment specifications are provided (e.g.
housing construction requirements to protect analyzer bench and
electrical components from ambient temperature and humidity
fluctuations, automatic purge of system after each test). These are
minor deficiencies and must be ultimately corrected for EPA final full
approval.
Waivers and Compliance Via Diagnostic Inspection--40 CFR 51.360
The federal I/M regulation allows for the issuance of a waiver,
which is a form of compliance with the program requirements that allows
a motorist to comply without meeting the applicable test standards. For
enhanced I/M programs, an expenditure of at least $450 in repairs,
adjusted annually to reflect the change in the Consumer Price Index
(CPI) as compared to the CPI for 1989, is required in order to qualify
for a waiver. Waivers can only be issued after a vehicle has failed a
retest performed after all qualifying repairs have been made. Any
available warranty coverage must be used to obtain repairs before
expenditures can be counted toward the cost limit. Tampering related
repairs shall not be applied toward the cost limit. Repairs must be
appropriate to the cause of the test failure. Repairs for 1980 and
newer model year vehicles must be performed by a recognized repair
technician. The federal regulation allows for compliance via a
diagnostic inspection after failing a retest on emissions and requires
quality control of waiver issuance. The SIP must set a maximum waiver
rate and must describe corrective action that would be taken if the
waiver rate exceeds that committed to in the SIP.
Although the District provides for the CAA waiver rate of $450.00
plus CPI adjustment, the regulations as adopted by the District do not
preclude the Mayor from changing the minimum waiver amount. At no time,
can the minimum waiver amount be lowered. The District will need to
amend its regulations to correct this deficiency. Time extensions are
provided for in the District program; however, no criteria or
procedures for issuance of these hardship waivers is provided. The
District needs to provide provisions to address hardship waiver
issuance criteria to support these waivers. These are minor
deficiencies that ultimately must be corrected for EPA to give final
full approval.
Motorist Compliance Enforcement--40 CFR 51.361
The federal rule requires that compliance shall be ensured through
the denial of motor vehicle registration in enhanced I/M programs
unless an exception for use of an existing alternative is approved. An
enhanced I/M area may use either sticker-based enforcement programs or
computer-matching programs if either of these programs were used in the
existing program, which was operating prior to passage of the 1990
Clean Air Act Amendments, and it can be demonstrated that the
alternative has been more effective than registration denial. The SIP
must provide information concerning the enforcement process, legal
authority to implement and enforce the program, and a commitment to a
compliance rate to be used for modeling purposes and to be maintained
in practice.
Although the District makes a statement in its SIP submittal that a
registration denial system will be used, the full text of its
legislative authority is not provided. No enforcement regulations or
procedures are provided in the SIP submittal. The District needs to
identify all agencies responsible for implementing the motorist
compliance program. A description of and accounting for all classes of
exempt vehicles needs to be provided. The SIP needs to include a
description of the plan for testing vehicles, rental car fleets, leased
vehicles, federal fleet vehicles, state and local government vehicles,
and other subject vehicles. Section 3.5 of the District's SIP claims
the current compliance rate and the effect of noncompliance due to
loopholes, counterfeiting, and unregistered vehicles is insignificant.
The District needs to explain why this is insignificant and the
rationale for such statement. The District claims a 96% compliance
rate, however, no commitment is provided that the District will
maintain this enforcement level, at a minimum, in practice. No penalty
schedule for noncompliance is provided. There is no requirement that
noncompliance cases are not to be closed until compliance is
demonstrated. No procedures are provided that prevent owners or lessors
of vehicles from avoiding the testing program through the manipulation
of the registration or titling requirements. No mechanism is provided
for certifying vehicles that have met the testing requirements and have
been passed or waived. Although the District requires that license tags
and window stickers be used, linkage of sticker issuance and
registration denial is not provided. Procedures must be established
that clearly determine when a vehicle is tested under the biennial
testing schedule. These are major deficiencies. The District's
submittal does not meet the Motorist Compliance Enforcement
requirements of the federal I/M rules. This in part the basis for EPA's
proposed disapproval of the District's I/M SIP.
Motorist Compliance Enforcement Program Oversight--40 CFR 51.362
The federal I/M regulation requires that the enforcement program
shall be audited regularly and shall follow effective program
management practices, including adjustments to improve operation when
necessary. The SIP shall include quality control and quality assurance
procedures to be used to insure the effective overall performance of
the enforcement system. An information management system shall be
established which will characterize, evaluate and enforce the program.
The submittal provides enforcement procedures to oversee the program to
meet the requirements of this section.
[[Page 53172]]
Quality Assurance--40 CFR 51.363
An ongoing quality assurance program must be implemented to
discover, correct and prevent fraud, waste, and abuse in the program.
The program must include covert and overt performance audits of the
inspectors, audits of station and inspector records, equipment audits,
and formal training of all state I/M enforcement officials and
auditors. A description of the quality assurance program which includes
written procedure manuals on the above discussed items must be
submitted as part of the SIP. The District provides some quality
assurance procedures. However, the procedures on covert audits are not
provided. In addition, the quality assurance procedures for equipment
audits do not include the remote sensing equipment. Equipment audits on
the RSD equipment need to be performed. This is a minor deficiency. In
addition, the procedures manual states the District will establish a
training program for auditors and a program to audit, independently,
the auditors performance. The federal I/M rule requires that auditors
to be audited at least once a year. Appendix 10.7.3 of the District SIP
submittal provides that auditors will be audited periodically, as
needed. These are minor deficiencies and must be ultimately corrected
for final full EPA approval.
Enforcement Against Contractors, Stations and Inspectors--40 CFR 51.364
Enforcement against licensed stations, contractors and inspectors
shall include swift, sure, effective, and consistent penalties for
violation of program requirements. The federal I/M regulation requires
the establishment of minimum penalties for violations of program rules
and procedures which can be imposed against stations, contractors and
inspectors. The legal authority for establishing and imposing
penalties, civil fines, license suspensions and revocations must be
included in the SIP. State quality assurance officials shall have the
authority to temporarily suspend station and/or inspector licenses
immediately upon finding a violation that directly affects emission
reduction benefits, unless constitutionally prohibited. An official
opinion explaining any state constitutional impediments to immediate
suspension authority must be included in the submittal. The SIP must
describe the administrative and judicial procedures and
responsibilities relevant to the enforcement process, including which
agencies, courts and jurisdictions are involved, who will prosecute and
adjudicate cases and the resources and sources of those resources which
will support this function.
The District provides a citation of its legislative authority to
enforce against contractors, inspectors and stations. However, a copy
of such legal authority is not provided. The District SIP does not
contain a penalty schedule for noncompliance and list the offenses. The
first offense must be no less than $100 or 5 times the inspection fee.
The judicial procedures and the responsibilities of each person in the
judicial process are not provided. No description of resources
allocated to the judicial and enforcement process are provided. No
legal authority and/or regulation exists that provides for the
immediate suspension of station/inspector for a violation. The District
needs regulations that (1) require inspectors to receive training or
retraining where a violation or discovery of incompetence has occurred;
(2) bar certified inspectors from any involvement in inspection while
on penalty suspension; and, (3) provide auditors the authority to
temporarily suspend station and inspectors licenses or certificates
immediately upon finding a violation or equipment failure. The District
SIP provides a commitment to report to EPA statistics on enforcement
activities. The reports must at a minimum include all warnings, civil
fines, suspensions, revocations, and violations. These are minor
deficiencies and must be ultimately corrected before final full
approval.
Data Collection--40 CFR 51.365
Accurate data collection is essential to the management, evaluation
and enforcement of an I/M program. The federal I/M regulation requires
data to be gathered on each individual test conducted and on the
results of the quality control checks of test equipment required under
40 CFR 51.359.
The District provides a commitment to meet all of the data
collection requirements of the federal I/M regulations. The District
will need to provide these procedures upon completion to EPA as an
official SIP revision. The District's SIP meets the requirements of the
federal I/M rule for Data Collection.
Data Analysis and Reporting--40 CFR 51.366
Data analysis and reporting are required to allow for monitoring
and evaluation of the program by the state and EPA. The federal I/M
regulation requires annual reports to be submitted which provide
information and statistics and summarize activities performed for each
of the following programs: testing, quality assurance, quality control
and enforcement. These reports are to be submitted by July of each year
and shall provide statistics for the period of January to December of
the previous year. A biennial report shall be submitted to EPA which
addresses changes in program design, regulations, legal authority,
program procedures and any weaknesses in the program found during the
two year period and how these problems will be or were corrected.
The District's SIP commits to conform to the federal I/M
regulations for data analysis and reporting procedures. The District's
SIP meets the requirements of the federal I/M rule for data analysis
and reporting.
Inspector Training and Licensing or Certification--40 CFR 51.367
The federal I/M regulation requires all inspectors to be formally
trained and licensed or certified to perform inspections. The
District's narrative indicates that the requirements for inspector
training and licensing or certification meet the federal I/M
regulations. The District commits to maintain an inspector training
program and to ensure it meets or exceeds the standards of 40 CFR
51.367 (a). The training program will cover the materials specified in
the federal I/M rule and are located in the District's regulation at 18
DCMR 617.6. An adequate description of the program must be included.
This is a minor deficiency and must be ultimately corrected for final
full approval.
Public Information and Consumer Protection--40 CFR 51.368
The federal I/M regulation requires the SIP to include public
information and consumer protection programs. The District's SIP
submittal contains a public awareness plan to meet the requirements of
this section.
Improving Repair Effectiveness--40 CFR 51.369
Effective repairs are the key to achieving program goals. The
federal regulation requires states to take steps to ensure that the
capability exists in the repair industry to repair vehicles. The SIP
must include a description of the technical assistance program to be
implemented, a description of the procedures and criteria to be used in
meeting the performance monitoring requirements of the federal
regulation and a description of the repair technician training
resources available in the community. The District's submittal claims
an enhanced I/M
[[Page 53173]]
training center will be administered to meet the requirements of
diagnostic and repair technician assistance. However, the lack of
funding to support the development of the District's proposed enhanced
state-of-the-art training center, remains a concern to EPA. The
District's SIP submittal does not identify when the facility will be
established and fully operational. The SIP submittal does not address
the requirement for a technician hotline service. These are minor
deficiencies and must be ultimately corrected for final full approval.
Compliance With Recall Notices--40 CFR 51.370
The federal regulation requires the states to establish methods to
ensure that vehicles that are subject to enhanced I/M and are included
in an emission related recall receive the required repairs prior to
completing the emission test and/or renewing the vehicle registration.
The District's submittal does not provide any recall provisions,
including authority to require owners to show proof of compliance with
recalls in order to complete inspections and receive registration. No
commitment to submit to EPA annual reports on recall compliance is
provided by the District. No quality control procedures are provided to
track recall repairs. In light of EPA final regulations for recall
notices, the District can commit to adopt the EPA approved recall rules
upon promulgation. These are minor deficiencies and must be ultimately
addressed for final full approval.
On-road Testing--40 CFR 51.371
On-road testing is required in enhanced I/M areas. The use of
either remote sensing devices (RSD) or roadside pullovers including
tailpipe emission testing can be used to meet the federal regulations.
The program must include on-road testing of 0.5% of the subject fleet
or 20,000 vehicles, whichever is less, in the nonattainment area or the
I/M program area. Motorists that have passed an emission test but are
found to be high emitters as a result of an on-road test shall be
required to pass an out-of-cycle test. The District's SIP submittal
commits to test 0.5% of fleet, however no regulations/procedures are
provided. The District's submittal needs to provide an adequate
description of the on-road testing program. This is a minor deficiency
and must be ultimately corrected for final full approval.
State Implementation Plan Submissions/Implementation Deadlines--40 CFR
51.372-373
The submittal contains a schedule which is dependent on action by
the Financial Control Board to secure funds. The general schedule has 3
Phases: Design/Build/Operate Contract, Construction of SW Inspection
Station, and Program Effectiveness Evaluation. In Phase 1 which begins
in March 1996 and runs through to February 1997, the District plans to
issue a request for proposal (RFP), evaluate the technical content of
RFP and award a contract. In Phase 2 which begins in February 1997 and
ends January 1998, the District plans to transfer District inspectors
from the SE inspection station to the NE inspection station to continue
basic I/M and safety inspection, build and renovate a new SW inspection
station, train contractor inspectors and implement contractor control/
audit mechanisms. In Phase 3 which begins July 1996 and ends January
1998, the District plans to design effectiveness evaluation criteria,
test vehicles on IM240 and DC36 test procedures, evaluate test
procedure effectiveness and evaluate repair effectiveness. The District
needs to provide a schedule of testing of vehicles (phase-in and full),
explanation of what vehicles will be tested (model years/number
thereof), what test will be used, and when each test and program
element goes into effect (e.g. RSD prescreen, evaporative test,
technician training, full stringency cutpoints, etc.). The schedule
provides that phase-in of new inspection equipment will begin by
September 1997. The program must be fully implemented with all enhanced
program features by November 15, 1997. The performance standard
modeling start years are not consistent with the schedule provided by
the District in this section. These are minor deficiencies and must be
ultimately corrected for final full approval.
III. Discussion for Rulemaking Action
EPA's review of the District's I/M SIP revision, which was
submitted on July 13, 1995 and supplemented on March 27, 1996, finds
that it does not meet all of the relevant requirements of the NHSDA or
Clean Air Act, and EPA is soliciting public comments on the issues
discussed in this notice or on other relevant matters. 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 notice.
Proposed Action
EPA is proposing to disapprove this revision to the District SIP
for an enhanced I/M program. EPA is proposing to disapprove this action
because the District's I/M program does not meet all of the
requirements of the NHSDA, the Clean Air Act and the federal I/M rule.
Today's notice proposes to disapprove the District's I/M SIP until
such time as the District corrects the major elements of the SIP that
EPA considers deficient.
These major elements are:
(1) The proposed I/M program does not provide for a dedicated
funding mechanism to develop, implement and maintain the program
through attainment of the ozone standard. The Clean Air Act requires
that a dedicated fund be established. The District must demonstrate
that adequate funding of the program is available. Alternative funding
approaches are acceptable if it is demonstrated that the funding can be
maintained. The District does not provide for enabling legislation
establishing such secured funding.
(2) The District uses unapproved test types and claims credit
equivalency without a clear basis for those claims. The deficiencies in
the credit claims of the District's I/M program include the following:
(a) Assumes full IM240 emission reduction credit for BAR31 test
without data to support this claim.
(b) Uses remote sensing as a testing prescreen without providing
data to support emission reductions and credit calculation.
(c) Assumes full credit for a non-intrusive evaporative test with
no data to support this assumption.
(3) The submittal contains insufficiently demonstrates that the
District's program meets the high enhanced performance standard, which
is necessary for the District's air quality attainment plan. The
demonstration is insufficient due to the test equivalency stated in (2)
above and inaccurate calculation of emission reductions detailed in the
section by section analysis.
(4) The District's SIP submittal provides a citation for
registration denial but the full text of the legislation is not
provided. The District's program lacks regulatory requirements for a
registration denial system.
(5) The District's SIP is deficient in meeting the requirements of
Network Type and Program Evaluation because it contains no commitment
to evaluate the program using mass emission transient
[[Page 53174]]
testing on 0.1% of the subject fleet each year.
(6) The SIP submittal is deficient in providing adopted regulations
and procedures for each test type.
Major deficiencies must be corrected with regard to sections,
51.351, Enhanced I/M Performance Standard, 51.353, Network Type and
Program Evaluation, 51,354, Adequate Tools and Resources, 51.357, Test
Procedures and Standards, and 51.360, Motorist Compliance Enforcement.
In addition, the District's submittal does not meet a number of
miscellaneous requirements of the I/M rule. Specifically sections:
51.350, Applicability, 51.355, Testing Frequency and Convenience,
51.356, Vehicle Coverage, 51.358, Test Equipment, 51.359, Quality
Control, 51.360 Waivers and Compliance via Diagnostic Inspection,
51.362 Motorist Compliance Enforcement Program Oversight, 51.363,
Quality Assurance, 51.364 Enforcement against Contractors, Stations and
Inspectors, 51.365 Data Collection, 51.366, Data Analysis and
Reporting, 51.367 Inspection Training and Licensing or Certification,
51.368, Public Information and Consumer Protection, 51.369, Improving
Repair Technician Effectiveness, 51.370, Compliance with Recall
Notices, 51.371, On-Road Testing, and 51.372, State Implementation Plan
Transmittals. These deficiencies, described in more detail above in the
section by section analysis, must be corrected before EPA could provide
full approval for the District's I/M SIP revision.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. Sections 603 and
604. Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
EPA's disapproval of the District's request under Section 110 and
subchapter I, part D of the CAA does not affect any existing
requirements applicable to small entities. Any pre-existing federal
requirements remain in place after this disapproval. Federal
disapproval of the state submittal does not affect its state-
enforceability. Moreover, EPA's disapproval of the submittal does not
impose any new Federal requirements. Therefore, EPA certifies that this
disapproval action does not have a significant impact on a substantial
number of small entities because it does not remove existing
requirements and impose any new Federal requirements.
Under Section 202 of the Unfunded Mandate 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 that includes a Federal mandate that may result in estimated
costs to State, local or tribal governments in 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 disapproval action proposed does not
include a Federal mandate that may result in estimated cost of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action maintains pre-
existing requirements under State or local law, and imposes no new
Federal requirements. Accordingly, no additional cost to State, local,
or tribal governments, or to the private sector, result from this
action.
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule [is/is not] a ``major rule'' as defined by section 804(2) of
the APA as amended.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation.
The Administrator's decision to approve or disapprove the
District's enhanced I/M SIP revision will be based on whether it meets
the requirements of section 110(a)(2) (A)-(K) and part D of the Clean
Air Act, as amended, and EPA regulations in 40 CFR Part 51.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: September 19, 1996.
Michael M. McCabe,
Regional Administrator, Region III.
[FR Doc. 96-25983 Filed 10-9-96; 8:45 am]
BILLING CODE 6560-50-P
