[Federal Register Volume 62, Number 18 (Tuesday, January 28, 1997)]
[Rules and Regulations]
[Pages 4004-4020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-1846]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[PA 091-4050; FRL-5679-9]
Approval and Promulgation of Air Quality Implementation Plans;
Commonwealth of Pennsylvania; Enhanced Motor Vehicle Inspection and
Maintenance Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final rule.
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SUMMARY: EPA is granting conditional interim approval of a State
Implementation Plan (SIP) revision submitted by Pennsylvania. This
revision establishes and requires the implementation of an enhanced
inspection and maintenance (I/M) program in twenty-five Pennsylvania
counties. The intended effect of this action is to conditionally
approve the Commonwealth's proposed enhanced I/M program for an interim
period to last 18 months, based upon the Commonwealth's good faith
estimate of the program's performance. This action is being taken under
section 110 of the Clean Air Act and section 348 of the National
Highway Systems Designation Act.
EFFECTIVE DATE: This final rule is effective on February 27, 1997.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the
Air, Radiation, and Toxics Division, U.S. Environmental Protection
Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania
19107. They are also available for inspection at the Pennsylvania
Department of Environmental Protection, Bureau of Air Quality, P.O. Box
8468, 400 Market Street, Harrisburg, Pennsylvania 17105.
FOR FURTHER INFORMATION CONTACT: Brian Rehn, by telephone at: (215)
566-2176, or via e-mail at: Rehn.Brian@epamail.epa.gov. The
[[Page 4005]]
mailing address is U.S. EPA Region III, 841 Chestnut Street,
Philadelphia, PA, 19107.
SUPPLEMENTARY INFORMATION:
I. Table of Contents
II. Background
III. Public Comments/Response to Comments
IV. Final Rulemaking Action
V. Conditional Interim Approval
VI. Further Requirements for Final Approval
VII. Administrative Requirements
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Unfunded Mandates Act
D. Submission to Congress & the General Accounting Office
E. Petitions for Judicial Review
II. Background
On October 3, 1996 (61 FR 51638), EPA published a notice of
proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR
proposed conditional interim approval of Pennsylvania's enhanced
inspection and maintenance program, submitted to satisfy the applicable
requirements of both the Clean Air Act (CAA) and the National Highway
Safety Designation Act (NHDSA). The formal SIP revision was submitted
by the Pennsylvania Department of Environmental Protection on March 22,
1996.
As described in that document, the NHSDA directs EPA to grant
interim approval for a period of 18 months to approvable I/M submittals
under this Act. The NHSDA also directs EPA and the states to review the
interim program results at the end of that 18-month period, and to make
a determination as to the effectiveness of the interim 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 at 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
on or before November 15, 1997, so that at least six months of
operational program data can be collected to evaluate the interim
programs. 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. If the
Commonwealth fails to start its program according to this schedule,
this conditional 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. The Environmental Council of
States (ECOS) group has developed such a program evaluation process
which includes both qualitative and quantitative measures, and this
process has been deemed acceptable to EPA. The core requirement for the
quantitative measure is that a mass emission transient test (METT) be
performed on 0.1% of the subject fleet, as required by the I/M Rule at
40 CFR 51.353 and 366. As discussed in detail in the Response to
Comments portion of today's rulemaking action, EPA believes METT
evaluation testing is not precluded by the NHSDA, and therefore, is
still required to be performed by states implementing I/M programs
under the NHSDA and the CAA.
As per the NHSDA requirements, this conditional interim rulemaking
will expire on July 27, 1998. A full approval of Pennsylvania's final
I/M SIP revision (which will include the Commonwealth's program
evaluation and final adopted state regulations) is still necessary
under section 110 and under section 182, 184 or 187 of the CAA. After
EPA reviews the Commonwealth's submitted program evaluation and
regulations, final rulemaking on the Commonwealth's full SIP revision
will occur.
Specific requirements of the Pennsylvania enhanced I/M SIP and the
rationale for EPA's proposed action are explained in the NPR and will
not be restated here.
At the same time EPA published its NPR for interim approval of the
Commonwealth's I/M program, EPA issued an interim final rule to defer
imposition of sanctions on the Commonwealth for failure to submit and
receive federal SIP approval of its I/M program (61 FR 51598). That
interim final rule served to toll the imposition of sanctions during
EPA's rulemaking process related to the Commonwealth's I/M SIP. EPA
solicited comments on that interim final determination, and received
adverse comments during the public comment period. EPA intends, in the
near future, to take rulemaking action upon that interim final
determination separately from today's final action. EPA will address
the comments received on that action in its separate rulemaking.
III. Public Comments/Response to Comments
This section discusses the content of the comments submitted to the
docket during the Federal comment period for the notice of proposed
rulemaking, published in the October 3, 1996 Federal Register, and
provides EPA's responses to those comments. Submissions were received
from approximately 50 commenters, including the Commonwealth,
environmental organizations, industry groups, and from members of the
general public. Copies of the original comment letters, along with
EPA's summary and response to comments, are available at EPA's Region
III office at the address listed in the ADDRESSES section of this
document. EPA has first grouped similar comments and summarized them,
followed by EPA's response to specific comments. For clarity, in some
cases EPA has provided background information within a comment on its
requirements or its proposed action relevant to Pennsylvania's SIP,
prior to summarizing the comment itself.
Comment--Pennsylvania's ``Good Faith Estimate'' under the NHSDA
One commenter alleges that EPA does not have the statutory
authority to grant interim approval to Pennsylvania's proposed I/M SIP.
Specifically, the commenter asserts that the NHSDA provides states
authority to craft decentralized I/M plans if the state satisfies
certain requirements. The NHSDA requires such states to make a good
faith estimate regarding the expected performance of their proposed
program. The commenter argues that Pennsylvania has claimed 100% credit
for its plans performance (compared to EPA's model centralized,
enhanced I/M program), but offers no meaningful explanation to
substantiate its emissions reductions claim.
In a related comment, the Commonwealth argues that they have made
significant program enhancements to increase the effectiveness of
Pennsylvania's current decentralized I/M program, which satisfy the
good faith estimate requirements of section 348(c)(1) of the NHSDA. The
Commonwealth also commented that the basis of its good faith estimate
was eight program improvement measures listed in its SIP submittal, and
that EPA had inappropriately only included five of these measures
towards its good faith estimate in the proposed rulemaking. The items
which the Commonwealth claims EPA excluded from its proposed rulemaking
include: integrating the safety and emission inspection, increased
effectiveness of test equipment, and enhanced training and
certification for both repair technicians and inspectors.
[[Page 4006]]
Response to Comment: In its October 3, 1996 proposed rulemaking,
EPA proposed conditional interim approval of the Commonwealth's I/M
program under the authority of section 348 of the NHSDA and section 110
of the CAA. The NHSDA grants authority for EPA to approve a state's
program based on the full amount of credits proposed by the state if
the credits reflect a good faith estimate by the state and if the
revision otherwise complies with such Act.
As stated in the Conference Report to the NHSDA, states were
expected to have a difficult time quantifying the good faith estimate
required under the NHSDA. Therefore, the Conference Report indicates
that a state need only demonstrate that the proposed emission reduction
credit claims for the program have a basis in fact. Some specific
examples of means for states to generate a good faith estimate based on
existing or easily obtained historical data were also outlined in the
Conference Report. States could also include any other evidence that
has relevance to the effectiveness of a program within the good faith
estimate. The Conference Report states that ``EPA is to approve State
programs based on the emissions reduction credits as estimated by a
State, if the State's estimates reflect a good faith expectation of
performance.'' EPA believes that the NHSDA grants authority to approve
Pennsylvania's SIP, in the interim, on the basis of the good faith
estimates contained in this portion of their SIP.
Pennsylvania supplemented its I/M SIP submittal on June 27, 1996 to
include its formal ``good faith estimate'' required by the NHSDA. EPA's
proposed rulemaking cites the five factors listed in that SIP revision
as the Commonwealth's good faith estimate, which are: (1) increased
oversight through auditing; (2) additional on-road testing using remote
sensing; (3) use of State Police for visible enforcement; (4)
instantaneous data collection for swift enforcement; and (5) automation
of inspector data input to avoid errors or abuse.
Pennsylvania also committed (in the Good Faith Estimate portion of
that SIP addendum) to ``fully integrate its emissions testing program
with the long standing safety inspection program * * *''. EPA
interprets this commitment to mean that the Commonwealth will require
that emissions testing shall be performed prior to completion of a
safety inspection. Since the Commonwealth's good faith estimate refers
only to perceived respect commanded by the existing safety inspection
program, and does not establish how this perceived respect would be
transferred to the combined programs, EPA cannot ascertain whether this
integration would contribute to improving network effectiveness. While
integration of the safety and emissions programs may serve as a means
to achieve the motorist compliance rate committed to in the SIP, EPA
does not consider this argument, in and of itself, a means to improve
program effectiveness or to achieve the Commonwealth's claims for
additional emissions reductions for the emissions program.
The Commonwealth commented that increased effectiveness of test
equipment was a basis of its good faith estimate. However, the June 27,
1996 SIP supplement, which detailed the Commonwealth's good faith
estimate for the first time, did not include this argument as part of
Pennsylvania's basis in fact. These test equipment improvements,
including the use of dynamometers and advanced analyzers for testing,
as well as the addition of evaporative system testing will greatly
enhance the emissions inspection program, and these improved test
methods are accounted for in the performance standard modeling
demonstrating the emission reduction claims for the program. With the
lack of specificity in Pennsylvania's comments, EPA presumes that
Pennsylvania is not claiming that EPA models and guidance currently
provide insufficient credit for these test improvements, nor does EPA
believe that Pennsylvania is claiming that these test improvements
serve to improve the effectiveness of the Commonwealth's decentralized
program--beyond the levels attributed to this equipment in the
Commonwealth's modeling demonstration. Pennsylvania's good faith
estimate already claims improved network effectiveness for improvements
brought about by instantaneous data collection equipment and automation
of data entry by inspectors, both of which serve to improve network
effectiveness. The Good Faith Estimate section of Pennsylvania's SIP
does not presently contain the argument presented in Pennsylvania's
comment, and EPA does not believe based on the comment that this
argument would serve to improve the good faith estimate were it present
in the SIP.
Finally, Pennsylvania commented that enhanced training and
certification of repair technicians was part of its good faith
estimate, and that EPA overlooked the contribution of this element of
the program. The June 27, 1996 SIP addendum did not include this
provision as a basis for the Commonwealth's estimate. EPA agrees that
additional training and certification of repair technicians is crucial
to achieving the emissions reductions associated with the emission
testing program, as well as for maintaining public support for the
program. EPA cited as a deficiency in its proposal that Pennsylvania's
proposed regulations lack a requirement for mandatory technician
training and certification (although Pennsylvania's performance
standard demonstration claims full credit for this program). EPA
proposed that this deficiency be remedied by adoption of final
regulations which must include a mandatory technician training program,
to mirror the Commonwealth's modeled performance standard
demonstration. In the face of that SIP deficiency, and by the lack of
inclusion of this element in the formal Good Faith Estimate portion of
the Commonwealth's SIP, EPA did not consider this element when
considering the Commonwealth's good faith estimate.
Nevertheless, the Commonwealth's arguments to include these three
elements in their good faith estimate are moot, as these three elements
were not critical to EPA's acceptance of the state's good faith
estimate. EPA proposed to accept the good faith estimate under the
NHSDA without the benefit of those elements, although these elements do
benefit the SIP, serving to satisfy other statutory and regulatory I/M
requirements.
Comment--EPA's Decision to Conditionally Approve the Commonwealth's SIP
One commenter asserted that Pennsylvania's SIP suffers from
numerous major deficiencies that prevent approval of the SIP by EPA.
The examples cited correspond to those elements EPA cited as major
deficiencies in its proposed rulemaking. Furthermore, the commenter
adds that there are numerous other serious deficiencies, which EPA
deemed minor in its proposal, but which must eventually be corrected.
The commenter asserts that in light of the many deficiencies, this SIP
revision does not warrant conditional approval.
Response to Comment: In its proposal, EPA proposed five major
conditions which must be satisfied prior to issuance of final full
approval of the SIP, under the authority of section 110 of the CAA.
Additionally, EPA cited fourteen minor conditions, which do not affect
interim approval of the Commonwealth's SIP, but which must be corrected
prior to final full approval of the SIP.
[[Page 4007]]
EPA's ability to issue conditional approvals for SIPs having
correctable deficiencies was upheld in the case of NRDC v. EPA, 22 F.3d
1125, 1134-1135 (D.C. Circuit, 1994). In that case the court found that
the language of section 110(k)(4) of the CAA authorizes use of
conditional approval of a substantive SIP revision, which although not
approvable, can be made so by adopting specific EPA-required changes
within the prescribed conditional period. The court concluded that the
conditional approval mechanism was intended by Congress to provide EPA
with an alternative to disapproving substantive, but not entirely
satisfactory, SIPs submitted by the statutory deadlines, but not as a
means of circumventing those deadlines.
As indicated in the proposed rulemaking, EPA has reviewed
Pennsylvania's I/M SIP, and determined that this SIP is substantive and
the deficiencies are not insurmountable within the time frames of the
conditional approval period. Therefore, EPA's choice of conditional
approval is appropriate for this SIP. EPA also believes that the minor
deficiencies cited as de minimus do not detract from EPA's ability to
conditionally approve the Commonwealth's SIP, and need not be satisfied
until the end of the interim approval period granted under the
authority of the NHSDA. EPA believes that, due to the minor nature of
these deficiencies, allowing states the full term of the 18-month
interim approval period to correct these deficiencies will not cause an
adverse environmental impact.
Comment--Requirement for I/M in Mercer County
Numerous commenters expressed concern over implementation of an
inspection and maintenance (I/M) program in Mercer County,
Pennsylvania. The thrust of the comments was that this area is not
classified as a CAA nonattainment area, and the area is not violating
EPA's health-based NAAQS. Most of the commenters asserted that Mercer
is primarily a rural county, with only one small urban center having no
large industry base, i.e., Sharon. Several commenters pointed out that
none of the Pennsylvania counties surrounding Mercer is subject to
emissions testing, nor are the neighboring counties in Ohio.
Several commenters also contend that much of the pollution is
transported from across the Ohio border and/or from out-of-state
vehicles traversing several large interstate highways that bisect
Mercer County. Several commenters blamed large diesel trucks for the
pollution problem, citing black smoke spewed from those vehicles.
Many commenters also cited economic hardship that implementation of
this program would add to a county already suffering from the effects
of a poor economy.
Finally, several commenters cite a request from Governor Ridge to
remove Mercer County from the ``Northeast Ozone Transport Region'',
requesting that EPA approve this request and eliminate the requirement
for an I/M program for this area.
Response to Comment: Requirements for I/M programs are set forth in
section 182 and section 184 of the Clean Air Act (the CAA), as well as
in EPA's ``Regulation for I/M Program Requirements'', hereafter
referred to as the I/M rule, codified in the Code of Federal
Regulations (CFR) at 40 CFR Part 51, Subpart S. Section 182(c)(3) of
the CAA requires states to enact enhanced I/M programs in certain
metropolitan areas based upon the severity of those areas' ozone
problem and their populations.
Section 184(a) of the CAA establishes a Northeast Ozone Transport
Region (the OTR), to address ozone pollution caused by transport of
both ozone precursors and ozone between closely spaced urbanized areas.
The Commonwealth of Pennsylvania lies in the OTR. Section 184(b)(1)(A)
of the CAA requires that states lying in the OTR implement an enhanced
I/M program in any metropolitan areas having a population of over
100,000 persons--regardless of the severity of the ozone pollution
problem in that area. Mercer County comprises an MSA which has a
population over 100,000 persons, and therefore is subject to this I/M
requirement. Since Ohio does not lie in the Northeast OTR, Ohio
counties bordering Mercer are not subject to the same I/M requirements.
Section 51.350(b)(1) of EPA's I/M rule requires that the I/M
program be implemented in the entire OTR portion of a subject MSA.
Since MSAs are defined on a county-wide basis in Pennsylvania, the
entire county is subject to the program. While EPA's I/M rule does
allow for exceptions for extremely rural areas, the rule does not
provide for exclusion of an entire MSA on this basis.
Several of the Pennsylvania counties surrounding Mercer were not
defined as metropolitan statistical areas by the U.S. Office of
Management and Budget (OMB) as of 1990 (i.e., the enactment date of the
CAA and the date this I/M requirement was established). As a result, no
contiguous county to Mercer is required to adopt an enhanced I/M
program.
The Clean Air Act allows states to petition EPA to remove a state
or portions of a state from an OTR. On October 11, 1995, Pennsylvania
Governor Ridge submitted a petition to EPA to remove 37 western
Pennsylvania counties from the ozone transportation region--including
Mercer County. The Commonwealth contends that regional attainment ozone
NAAQS efforts are not significantly dependent upon control measures
from those counties. EPA has not yet acted upon the Governor's request.
Since EPA is compelled to take final action upon the Commonwealth's I/M
program, under a court settlement agreement filed October 1, 1996
pertaining to the case of Delaware Valley Citizens for Clean Air v.
EPA, EPA cannot wait for final action upon the Commonwealth's OTR opt-
out petition, before taking action upon the I/M program.
While many commenters believe that heavy-duty diesel trucks are
primarily responsible for ozone pollution, EPA does not agree with that
position. The pollutant stream emitted by a diesel engine differs
greatly from that of a gasoline-powered engine. While both engine types
emit nitrogen oxide emissions--a precursor to ozone, diesels typically
emit very low levels of hydrocarbons, another ozone precursor. Diesels
emit much greater levels of particulates, which are readily
identifiable as black or gray smoke, but are not ozone precursors.
While an individual heavy diesel truck typically emits a greater mass
of emissions compared to a passenger car, as a whole these trucks
comprise a much smaller portion of the vehicle fleet and as a whole
fleet, travel fewer vehicle overall miles than passenger cars. EPA
supports efforts to reduce emissions from diesels, such as emission
testing. However, this type of testing is not presently required under
any Federal statute. Adoption of such a program is currently the
purview of the states, and is therefore not the subject of today's
action.
For all the reasons set forth above, EPA cannot remove the
requirement for Mercer County to implement an OTR enhanced I/M program,
at this time. Should EPA accept Pennsylvania's petition to remove 32
counties, including Mercer, from the OTR, implementation of an I/M
program would no longer be required under federal law in those
counties.
Comment--EPA's I/M Program Evaluation Requirements
The Commonwealth commented that EPA has taken too narrow an
[[Page 4008]]
interpretation of authority provided by the NHSDA by focusing on its
prohibition against EPA's requiring states to adopt test-only programs
which utilized IM240 test equipment and methods; its abolition of EPA's
presumed ``50% credit discount'' previously assumed for decentralized
programs; and its ban of EPA's ability to disapprove such programs on
the basis of any presumed discount. Specifically, Pennsylvania states
that the NHSDA overrides I/M requirements which EPA established for use
in a centralized approach to the I/M program. In particular, this
includes the use of centralized mass-based emission, transient test
(METT) equipment to conduct the ongoing program evaluation required by
40 CFR 51.353. While the Commonwealth indicated in its comments that it
intends to perform an ongoing I/M evaluation program, per the CAA, the
Commonwealth has requested that it be allowed to use its own I/M
program test criteria and equipment to conduct such an evaluation in
place of the METT equipment required by EPA's regulation.
The Commonwealth's rationale for use of non-METT testing for its
evaluation equipment is set forth in its comment letter. Pennsylvania
believes that EPA's position is inconsistent with Congressional intent,
specifically in light of language from the Conference Report to the
NHSDA which provides that ``testing technology called I/M240 * * * is
not practical in the decentralized system of emissions testing * * *''
Furthermore, since EPA has proposed acceptance of Pennsylvania's
decentralized network design, Pennsylvania believes its alternative
test procedure should be found by EPA to be equivalent to meet the
evaluation requirements of 40 CFR 51.353. Pennsylvania does not believe
Congress intended for a centralized approach to evaluating the success
of the I/M program, since the Commonwealth maintains it would be
costly, inconvenient, and would not provide a clear evaluation of
Pennsylvania's decentralized program and equipment.
Pennsylvania requests that EPA agree, in its final rulemaking, that
the NHSDA authorizes states to use their control equipment to perform a
program evaluation, specifically allowing use of ASM evaluation
equipment in Philadelphia and two-speed idle testing equipment for use
in the Pittsburgh area.
Even if EPA refuses the above request, the Commonwealth asks that
EPA provide in the final rule that METT testing only be mandated in the
five-county Philadelphia area. Pennsylvania believes that since the
Pittsburgh area is not required to have as rigorous a program as
required in the Philadelphia area, it should not be held to the same
high standards for program evaluation. Further, Pennsylvania asserts
that the METT evaluation requirement is to be used as a benchmark to
ensure reductions equivalent to IM240 reductions, and this benchmark is
not necessary in Pittsburgh, where an idle test is to be used for
routine emissions inspection. The Commonwealth generally supports the
use of routine inspection equipment and procedures for use in
performing the ongoing program evaluation.
Response to Comment: EPA believes that the Commonwealth, in its
comments with respect to METT testing requirements, has misinterpreted
the CAA's rationale for requiring an ongoing program evaluation. While
the NHSDA prohibits mandatory IM240 testing on a centralized basis as
the inspection method used for passing and failing vehicles in I/M
programs, it is silent on the issue of program evaluation testing and
EPA believes that it clearly does not prohibit the Agency from
requiring METT sampling on a small, random subset of vehicles in order
to confirm the level of effectiveness of the program as authorized
under section 182(c)(3)(C) of the CAA. While Pennsylvania argues that a
test which is adequate for routine inspections should be good enough
for the purpose of program evaluation, EPA disagrees. The reason is
that the two tests are intended for two wholly different purposes, and
therefore have completely independent criteria for acceptability.
The routine, non-METT I/M inspection used to pass and fail vehicles
does not need to correlate very closely to the EPA Federal Test
Procedure (FTP), which has been used by EPA and vehicle manufacturers
for the last several decades for the purpose of determining actual
vehicle emissions; it need only be precise enough to make broad pass/
fail decisions, for the purpose of identifying grossly polluting
vehicles, with respect to ozone precursor pollutants. The program
evaluation test, on the other hand, is not used to make pass/fail
decisions; instead, it is used to measure actual total mass of
emissions (i.e., in tons), which requires a more precise measurement
tool. Since the purpose of the program evaluation is to determine
specifically the mass quantity of vehicle-related pollutants that are
eliminated as a result of implementation of the I/M program, the broad
pass/fail estimates provided by non-METT equipment are inadequate for
this purpose. For vehicle testing, precision is a function of how
closely the test correlates to the FTP--the best test method currently
available. Since the FTP itself is a mass-emission, transient test,
other METTs, of which there are several available in addition to the
IM240, tend to correlate well with the FTP, with some correlating
better than others. Non-METT tests, such as Pennsylvania's ASM and two-
speed idle tests, tend to have very low correlations to the FTP.
Since program evaluation is a means to determine the overall
emission reduction impact of an I/M program, and not a means of
comparing test equipment or network design, EPA believes the decision
to approve Pennsylvania's decentralized network design (including use
of ASM and idle test types) is independent of EPA's decision to
conditionally approve the program evaluation methodology portion of the
Commonwealth's SIP.
METT evaluation testing need not be performed on a centralized
basis. The I/M rule required such testing in all programs, whether
centralized or decentralized, prior to passage of the NHSDA. In
response to the Commonwealth's comments on costs, inconvenience, and
inaccuracy of centralized evaluation systems, it may help to clarify
that the I/M rule does not require the 0.1% program evaluation sample
to be conducted on a centralized basis or at a centralized location.
Furthermore, since evaluation testing need only be performed on a
minute fraction of the vehicle population (i.e., 0.1% of all subject
vehicles), few actual analyzers are needed to perform the evaluation,
and thus purchase or leasing of METT evaluation equipment is not nearly
as significant a financial burden as is implied by the Commonwealth's
comment. The possible availability of transportable METT equipment
provides states with a range of non-centralized options for undertaking
evaluation testing, so a state can provide a consumer-friendly
evaluation process.
The use of a METT evaluation on a 0.1% random sample will provide
states and EPA with quantitative assessments of how well I/M programs
are actually performing, with respect to overall emission reduction
benefits that result from all program elements (i.e. test type, network
design, enforcement mechanism, etc.) working together. The purpose of
the 0.1% METT is not to segregate the effectiveness of any individual
program element, such as test type. Specifically, it is not EPA's
intention to use the results of the 0.1% METT requirement to force
states to
[[Page 4009]]
switch to IM240 testing for their routine inspection process.
EPA believes Congress required an ongoing I/M program evaluation in
the CAA in order to measure, for the first time the actual
effectiveness of states' programs in achieving air pollution
reductions. METT testing provides mass-based fleet-wide emission
factors that are more reliable, reputable, and objective than any
broad, concentration-based results that any non-METT test (e.g. idle or
ASM testing) could provide. Section 182(c)(3)(C) of the CAA
specifically authorizes EPA to establish the methods for evaluating I/M
programs. EPA believes that nothing in the NHSDA prohibits EPA from
continuing to require METT as the appropriate evaluation method.
EPA does not agree that the program evaluation applies only to high
enhanced I/M areas. The CAA, which establishes the program evaluation
requirement for enhanced I/M programs, does not distinguish between
high or low enhanced I/M programs. Furthermore, the EPA I/M Flexibility
Rule, which established the low enhanced performance standard (which
the Commonwealth has chosen to use in Pittsburgh) did not change the
program evaluation requirements for state programs. EPA disagrees with
Pennsylvania's assertion that METT is only to be used as a benchmark to
ensure that reductions equivalent to IM240 reductions are achieved in a
program. Rather, as explained above, program evaluations whether in
high or low enhanced areas are intended to gauge the overall
effectiveness of how well a state's program is reducing emissions. EPA
does not believe that the purpose of a program evaluation is to verify
how well the state's inspectors are performing the test type as
required by the design of the network--that is the function of
inspector audit--rather, the program evaluation helps to determine the
overall emission reduction impact of the program with all the program
elements working together. For this reason, the requirement for METT
testing still applies all enhanced I/M areas, including the Pittsburgh
area.
Therefore, for the reasons set forth above, EPA does not agree with
Pennsylvania's arguments for use of non-METT based program evaluation.
In turn, the condition related to the Commonwealth's METT-based program
evaluation methodology remains in EPA's final interim approval. Please
refer to the SUPPLEMENTARY INFORMATION section of this document for
more information on the actual condition. Since Pennsylvania has
committed to comply with this requirement, EPA can conditionally
approve this aspect of the I/M SIP.
Comment--EPA's Requirements for I/M Inspection Network Design
Pennsylvania commented that EPA's proposed rulemaking requires the
state to demonstrate that its program meets the network evaluation
criteria found in 40 CFR 51.353(b)(1). This provision includes a 50%
discount for decentralized programs which is inconsistent with the
NHSDA.
Response to Comment: EPA agrees with the Commonwealth's comment.
EPA's October 3, 1996 proposed rulemaking mistakenly conditioned
approval of the Commonwealth's SIP on compliance with program
evaluation requirements of 40 CFR 51.353(b) (1) and (c). However, EPA
believes the requirements of Sec. 353(b)(1) have been superseded by the
NHSDA. Therefore, the condition upon the Commonwealth's SIP is amended
to require compliance with the program evaluation requirements found in
40 CFR 51.353(c).
Comment--Use of a Low-Enhanced I/M Program Without an Approved
Reasonable Further Progress Plan
One commenter asserted that EPA cannot approve the plan because it
does not comply with EPA's requirements in 40 CFR 51.351(g), which
allows states, under certain conditions related to a separate CAA
requirement, to utilize a less stringent ``low'' enhanced performance
standard. This I/M program flexibility may be applied if a state has an
approved plan to demonstrate reasonable further progress (RFP) towards
attainment of the ozone air quality standard, and that plan does not
rely upon additional reductions from enhanced I/M--beyond those
projected from a ``low'' enhanced program. The commenter asserts that
Pennsylvania currently does not have such an approved RFP plan for any
nonattainment area, and therefore does not qualify to design a low
enhanced I/M program.
In a separate but related comment, the Commonwealth also raised the
inconsistency between the I/M program implementation schedule
established by the NHSDA and EPA's requirements in 40 CFR 51.351(g) for
approval of the RFP SIP revisions prior to approval of the low enhanced
I/M programs. Additionally, Pennsylvania does not agree that proposed
approval of the 15% RFP plan submission for Pittsburgh is necessary
prior to final interim approval of the I/M program under the NHSDA.
Since the NHSDA modified the schedule for submission and final approval
of states' I/M programs, Pennsylvania believes that EPA cannot block
interim approval of the I/M SIP submissions on the basis of the
approval status of a 15% RFP submission.
Response to Comment: EPA amended its I/M program requirement
regulation (i.e., the I/M Flexibility Rule) on September 18, 1995 (60
FR 48029) to allow states additional flexibility in designing I/M
programs in cases where the full magnitude of reductions from
implementation of a ``high'' enhanced performance standard I/M program
are not necessary to make reasonable progress towards or to obtain the
national ambient air quality standard (NAAQS) for ozone. The result was
a less stringent performance standard called the ``low enhanced''
performance standard.
To ensure that a state wishing to use the low enhanced standard did
not need the additional emissions reductions afforded by high enhanced
I/M, EPA limited use of the low enhanced standard to areas that could
meet the requirements of the CAA for reasonable further progress, and
had not failed to meet CAA requirements for attaining the NAAQS.
Specifically, 40 CFR 51.351(g) requires, among other things, that
states have an approved SIP pursuant to CAA requirements related to
1996 RFP.
However, since the publication of EPA's I/M Flexibility Rule,
Congress passed the NHSDA, which set forth new time frames and
deadlines for adoption and implementation of I/M programs. Since the
NHSDA provided qualifying states only 120 days to submit proposed I/M
programs, and since the time frames for implementation and evaluation
of NHSDA I/M programs are triggered by EPA interim approval of such I/M
SIP revisions, EPA believes Congress intended for EPA to approve these
programs, on an interim basis, as soon as possible. Since in many cases
EPA has not yet been able to approve states' RFP SIPs for 1996, the
administrative process of taking final approval action upon these SIPs
could serve to delay approval of I/M SIPs submitted under the NHSDA.
Therefore, EPA interprets Congressional intent under the NHSDA to
supersede the requirement of 40 CFR 51.351(g) requiring full approval
of 1996 RFP SIPs that demonstrate that use of low enhanced I/M will not
jeopardize RFP requirements under the CAA prior to interim approval of
I/M SIPs under the NHSDA. Such final approval will be necessary prior
to full approval of I/M SIPs after the 18-month NHSDA evaluation
period. However, to ensure that use of the low enhanced performance
standard is appropriate, EPA believes that I/M plans for any area
[[Page 4010]]
relying upon the low enhanced standard cannot receive final interim
approval until such time as EPA concludes that an RFP plan containing a
low enhanced I/M program is appropriate and proposes approval of any
required 1996 RFP plan for that area. With relation to Pennsylvania's
I/M SIP revision, concurrent with issuance of this final interim
rulemaking action, EPA is proposing, via a separate rulemaking action,
conditional approval of the Pittsburgh 1996 RFP SIP, which demonstrates
the suitability of the low enhanced performance standard to that area.
Comment--EPA's Mechanism for Converting its Conditional Approval Action
to a Disapproval
One commenter asserts that EPA's conditional approval action should
automatically convert to a disapproval, unless EPA sends a finding
letter to the Commonwealth that all conditions have been fully
satisfied in a timely manner (as established by the final conditional
rulemaking). The commenter believes that EPA has a history of delay and
equivocation related to enforcement of the CAA upon the states.
Response to Comment: Under section 110(k)(4) of the CAA, EPA agrees
with the commenter that conditional approvals are automatically treated
as disapprovals, by operation of law, if a state fails to comply with
the commitments to correct SIP deficiencies. However, for purposes of
notice to the public concerning the official status of a SIP as of any
given date, EPA issued a policy memorandum on July 9, 1992 from John
Calcagni, Director, Air Quality Management Division, Office of Air
Quality Planning and Standards, entitled ``Processing of State
Implementation Plan Submittals''. In this memorandum, EPA indicated
that it would send a letter to the state indicating that the condition
had not been met, and that the approval status of the SIP had
automatically converted to a disapproval. It is important to note that
the conversion occurs by operation of law; the letter serves only to
notify the state and the public that the conversion has occurred.
EPA does not agree with the commenter's assertion that all
conditional approvals should convert to disapprovals, unless EPA issues
a letter indicating that all conditions of EPA's rulemaking action have
been met. Under the CAA, a SIP can only convert to a disapproval if the
conditions have not been met, in a timely fashion. Where a state has
satisfied the conditions of a conditional approval, it would not be
consistent with the CAA to have conditional approvals convert to
disapprovals merely because EPA failed to timely issue a confirmatory
letter. It should be noted that EPA intends to provide, in writing,
notification to the Commonwealth as to whether or not a condition has
been satisfied. EPA intends to do so within 30 days after the due date
of a condition.
Comment--Pennsylvania's Ability to Ensure Participation by a Sufficient
Number of Inspection Stations
One commenter was concerned about EPA's ability to ensure that
Pennsylvania's program will have sufficient participation to smoothly
operate the program. The commenter also questioned what contingency
measures Pennsylvania would implement if an insufficient number of
stations choose to participate in the program.
Response to Comment: While EPA recognizes the commenter's concern,
in that the Commonwealth was unable to disclose the number of stations
that it anticipates will participate in the program as of November
1997, EPA believes it remains appropriate to grant a conditional
approval to Pennsylvania's program at this time under the authority of
the NHSDA.
Furthermore, EPA believes the state has taken reasonable measures
to ensure that adequate station participation will be available to
accommodate the number of vehicles in the program. In addition to
establishing support for the program through the formation of two
stakeholders groups in the state to address the need for enhanced I/M
testing and other air quality control measures; the state has also
formed an I/M Working Group, comprised of repair shop owners, educators
and state regulators to address, among other issues, adequate
participation in the program by the repair station community.
While the Commonwealth has not submitted contingency measures in
its submittal under the NHSDA, provisions do exist under this
rulemaking that subject the state's program to further scrutiny at the
end of the interim approval period. EPA, as directed by Congress under
the NHSDA, will review Pennsylvania's program to ensure that the level
of credit claimed in its SIP submittal is accurate. If the state's
program fails this evaluation for any reason, the state will need to
take corrective action before a final full approval of the enhanced I/M
SIP revision will be granted.
Comment--Adequate Funding to State Police for Enforcement Activities
Related to the Program
One commenter was concerned that the State Police, to which
Pennsylvania has delegated primary enforcement responsibilities for the
program (both against testing stations and against motorists) has not
been given adequate additional resources to adequately enforce the
program.
Response to Comment: In its proposed approval, EPA cited a failure
on the Commonwealth's part to demonstrate adequate tools and resources
for the program, as required by 40 CFR 51.354. Specifically, states are
required to provide a detailed budget plan, and a plan describing the
personnel resources dedicated to the enhanced program. EPA considers
this a minor deficiency that must be corrected prior to full approval
of the SIP revision at the end of the 18-month interim approval period
provided under the NHSDA. In part, EPA's proposed rulemaking cited a
failure to detail personnel and equipment dedicated to the enforcement
portion of the program. Since the SIP revision calls for use of State
Police in the primary enforcement role, EPA expects the Commonwealth to
detail the State Police resources to be dedicated to this program prior
to issuance of final full approval.
Comment--The Commonwealth's Funding of the Program
One commenter was concerned that without a dedicated source of
funding the Commonwealth may not make sufficient expenditures to
properly implement the program. This commenter alleges that the
Commonwealth has a long history of not meeting its I/M commitments.
In a related comment, the Commonwealth asserted that it intends to
provide a detailed I/M program budget and personnel plan identifying
the personnel dedicated to quality assurance under the EPA I/M rule.
Specifically, the Commonwealth indicated its intent to issue requests
for proposal (RFPs) to contract with private vendors to provide some of
these services, and to submit the contractor's proposal that is
eventually accepted to perform this function.
Response to Comment: EPA's I/M requirements under 40 CFR 51.354
require states to demonstrate that adequate funding is available to
ensure proper operation of the program. A dedicated fund is also to be
created for use in oversight and operation of the program. However,
EPA's I/M rule allows for alternative funding
[[Page 4011]]
mechanisms (including reliance upon a general fund) for those states
which are constitutionally blocked from creating a dedicated fund, and
which demonstrate that funding can otherwise be maintained.
As indicated in EPA's proposed rulemaking, Pennsylvania has
established that it is constitutionally barred from creating a
dedicated I/M fund, and must instead rely upon annual appropriations
from the General Assembly. The Commonwealth must therefore submit an
annual budget for the first year of program operation detailing its I/M
program budget and personnel resources dedicated to the program.
However, EPA's proposal cited as a minor deficiency the lack of a
detailed budget plan describing funding sources for: I/M oversight
personnel, program administration, program enforcement, and purchase of
equipment, as required by 40 CFR 51.354. Also, a detailed personnel
plan describing human resources dedicated to: the quality assurance
program, data analysis, program administration, enforcement, public
education and assistance and other necessary functions.
The Commonwealth has not yet provided these detailed budget and
human resources plans, but has expressed a willingness to submit this
information in its final I/M SIP revision. If these functions are to be
performed by the Commonwealth, EPA requires detailed plans containing
that information. If these functions are contracted to private vendors,
EPA expects the Commonwealth will provide either a detailed RFP, a
binding proposal or bid from the contractor or contractors selected to
perform these functions, or final legal contracts between the selected
contractor or contractors and the Commonwealth that contain budget
plans and personnel allocations for these responsibilities. Therefore,
EPA is leaving the de minimus deficiency related to Pennsylvania's
demonstration of adequate resources intact in today's action.
Comment--Implementation Dates
EPA proposed commencement of I/M testing in the Philadelphia and
Pittsburgh areas by no later than November 15, 1997; and in all other
subject I/M areas by no later than November 15, 1999. The Commonwealth
commented that it supports EPA's proposed implementation dates for
those areas.
Response to Comment: This comment supports EPA's proposed action,
thus it does not change EPA's final decision or rulemaking action.
Comment--Performance Standard Modeling Issues
In its proposed interim conditional approval, EPA cited differences
between the Commonwealth's I/M regulation and the program design
parameters used in the modeling to demonstrate compliance with the
performance standard, as required under 40 CFR 51.351. Specifically,
the modeling assumed credit for features not found in the
Commonwealth's proposed regulations.
Among other things, Pennsylvania's modeling, as of the time of
proposal, included full credit for a mandatory repair technician
training and certification program in all subject counties. However, at
that time the proposed regulations did not provide for such a program.
Pennsylvania agrees in its comment letter that the state regulations
must be consistent with the modeling demonstration. Pennsylvania noted
that it intends to adopt regulations to provide for, among other
things, a mandatory technician training program, and provided draft
regulatory language for a repair training program in its comments to
EPA.
Pennsylvania states that its revised modeling, submitted November
1, 1996, demonstrates that the performance standard will be met as long
as its regulation, as finally adopted, is consistent with the
assumptions used in the performance standard modeling. Pennsylvania
claims that it will ensure consistency between the performance standard
modeling assumptions and its final regulation through the draft
regulatory revisions provided within its comment letter.
Pennsylvania claims that the result of all of the draft regulatory
amendments provided in its comment letter will ensure consistency
between the final regulations and the revised performance standard
modeling.
Response to Comment: EPA supports the Commonwealth's draft
regulatory language, as it adequately addresses the conflict between
the performance standard modeling assumptions and the Commonwealth's I/
M regulation.
However, as Pennsylvania indicated in its comments, the
Commonwealth intends to obtain input from the Pennsylvania I/M Working
Group on all redrafted regulatory language prior to adopting these
changes through the state's regulatory adoption process. These
revisions are also subject to public participation at the state level,
as well as changes through the rule adoption process, itself.
Therefore, EPA considers the Commonwealth's revised regulatory language
to be draft, until final regulations are adopted and submitted to EPA
as a SIP revision, and therefore cannot remove the minor deficiency
until the Commonwealth formally adopts and submits to EPA its final
regulations.
Comment--Remodeling the Performance Standard Using Updated ASM Test
Credits
Pennsylvania commented that it agrees with the EPA's proposal to
conditionally approve the Commonwealth's I/M SIP upon a requirement
that the Commonwealth remodel the performance standard to reflect the
newest ASM credit estimates. On November 1, 1996, Pennsylvania
supplemented its SIP with revised MOBILE modeling for the performance
standard demonstration.
Pennsylvania also committed to modify its regulations to
incorporate actual program startup dates and testing standards, or
``cutpoints'', to match those contained in its modeling demonstration.
Specifically, Pennsylvania provided comments containing draft
regulatory language to address a condition in EPA's proposed rulemaking
regarding I/M test equipment specifications and test procedures (i.e.,
for the ASM, idle, and 2-speed idle tests), in addition to providing
draft regulatory language to more clearly define the one-mode ASM test
to be used in the Philadelphia area. Pennsylvania also included in a
November 1, 1996 supplement to the SIP draft specifications for test
equipment to be used in the I/M program.
Response to Comment: This commenter supports EPA's proposed action,
and thus the comment does not alter EPA's final rulemaking action.
Pennsylvania indicated in its comments that it will obtain input
from the Pennsylvania I/M Working Group on all draft regulatory
amendments prior to adopting those changes through the state's
regulatory adoption process. Regulatory revisions are also subject to
public participation at the state level, as well as to changes at any
stage of the rule adoption process. Therefore, EPA considers the
Commonwealth's revised regulatory language to be draft, until final
regulations are adopted and submitted to EPA as a SIP revision, and
therefore cannot remove the minor deficiency until the Commonwealth
formally adopts and submits its final regulations to EPA. Since the
performance standard modeling must mirror the I/M program parameters
described in the Commonwealth's
[[Page 4012]]
regulation, EPA believes it would not be prudent to remove the de
minimus deficiency tied to modeling the I/M performance standard, until
Pennsylvania finalizes its regulatory requirements supporting that
modeling demonstration.
Therefore, EPA is maintaining the cited minor deficiency in its
final interim rulemaking action. Upon submission of final regulations
to remedy this deficiency, EPA will review the change and make a final
decision in its full approval action to be taken upon expiration of the
interim approval period afforded this SIP under the NHSDA.
Comment--Functional Evaporative System Testing
The Commonwealth commented that logistical problems exist with the
current functional evaporative system pressure and purge testing
procedures outlined in EPA's 1996 guidance. While Pennsylvania
continues to take credit for both purge and full pressure tests, as
currently allowed under EPA policy, the Commonwealth commented that it
will not require tests that are impractical to implement or which may
cause damage to evaporative system components. Pennsylvania further
alleges that over half of the vehicles subject to evaporative system
testing cannot be tested with EPA's current test method. Pennsylvania
claims that these tests are exceedingly difficult to implement in real
world testing environments because it is difficult to identify where to
hook up the testing equipment on many of the vehicles being tested.
Pennsylvania expects that EPA will work to develop an alternative test
that achieves all the emission reductions originally projected by EPA
for these tests. The Commonwealth adds in its comments that EPA
technical staff have acknowledged problems with the pressure test and
that there is currently no proven purge test procedure.
The Commonwealth further objected to EPA's conditioning of the
interim approval upon adoption of procedures for the purge and pressure
tests, as currently described in EPA guidance.
To address the lack of functional evaporative test procedures and
test equipment specifications, which EPA cited as a condition in its
proposed rulemaking, Pennsylvania provided draft regulatory language in
its comments.
Finally, the Commonwealth adds that to date, no alternative test
procedure has proven to be a viable substitute for EPA's test method.
Response to Comment: On November 5, 1996, EPA issued a policy
memorandum from Margo Oge, Director of EPA's Office of Mobile Sources
(OMS), entitled ``I/M Evaporative Emissions Tests''. This memo outlines
the difficulties related to functional pressure and purge functional
testing, in practice in I/M programs. The memo provides that EPA will
accept states' credit claims for the benefits from implementing purge
testing, although many states are not expected to begin using this test
for 12-18 months. EPA hopes a suitable test will be available by the
time states begin testing.
On December 20, 1996, EPA issued an addendum to the November 5
memo. This memorandum from Leila Cook, Regional and States Program
Group Leader of EPA's OMS, serves to clarify the policy set forth in
the November 5, 1996 memo. Specifically, this memo requires states to
actually perform an available pressure test to receive credits claimed
for such a program in their SIP revision. Full modeled credit (i.e.,
from the MOBILE model) for the performance of pressure testing is
available only if a state performs an Arizona-like pressure test from
the fillpipe and a separate gas cap check. States performing only a gas
cap check will receive only 40% of the available MOBILE-modeled credits
for pressure testing.
EPA has acknowledged problems with the current purge test.
Therefore, states such as Pennsylvania that committed to perform a
purge test may continue to take 100% of the credit for the purge test,
without actually performing such testing, until such time as EPA
develops a viable purge test procedure. EPA expects Pennsylvania will
require some form of evaporative system pressure testing to receive
credit for implementation of this program element, and is interpreting
the Commonwealth's comments as a commitment to perform this testing. If
the Commonwealth chooses to enact only a gas cap check, the performance
standard demonstration must be amended to reflect the lower credit
levels attributed to that type of testing, as described above and in
the November 5, 1996 and December 20, 1996 memos. The final
Pennsylvania I/M regulation must include test procedures and emissions
standards for pressure testing, in addition to a requirement for purge
testing when such testing is readily available and is viable.
Comment--Definition of Light Duty Trucks
In its proposed rulemaking, EPA cited as a minor deficiency that
the Pennsylvania I/M regulation did not adequately define I/M program
vehicle coverage, per the requirements of 40 CFR 51.356. Specifically,
the regulatory definition of light-duty trucks differed from modeling
parameters found in the Commonwealth's performance standard
demonstration by not requiring vehicles up to 9,000 pounds gross
vehicle weight rating (GVWR) to be subject to the program.
Pennsylvania provided draft regulatory language in its comments to
address this problem, which would change the definition of light duty
trucks to include trucks up to 9,000 pounds GVWR.
Response to Comment: EPA supports the Commonwealth's draft
regulatory language. This correction will address the conflict between
the performance standard modeling assumptions and the Commonwealth's
regulatory requirements regarding vehicles subject to this program.
However, Pennsylvania also indicated in its comments that the
Commonwealth intends to obtain input from the Pennsylvania I/M Working
Group on all redrafted regulatory language prior to adopting these
changes through the Commonwealth's regulatory adoption process. These
revisions are also subject to public participation at the state level,
as well as changes through the rule adoption process, itself.
Therefore, EPA considers the Commonwealth's revised regulatory language
to be draft, until final regulations are adopted and submitted to EPA
as a SIP revision, and therefore cannot remove the minor deficiency
until the Commonwealth formally adopts and formally submits its final
regulations to EPA.
Comment--I/M Inspection Test Procedures
EPA cited as a condition of its proposed approval of Pennsylvania's
SIP the lack of procedures for certain I/M tests, including two-speed
idle, one-mode ASM, and functional evaporative system purge and
pressure tests, and for a lack of testing standards or ``cutpoints''
associated with those tests, per 40 CFR 51.357. EPA's proposed interim
approval was conditioned upon the Commonwealth submitting proposed ASM
and two-speed idle test procedures within 30 days, and upon the
Commonwealth's adoption of a final regulation incorporating those test
procedures within one year of EPA's final interim approval rulemaking.
EPA also cited the SIP's lack of phase-in test cutpoints for ASM and
two-speed idle testing.
Pennsylvania commented that it would modify its regulations to
include all test procedures, specifications, and standards to be used
in the Commonwealth's I/M program.
[[Page 4013]]
Additionally, the Commonwealth provided draft regulatory language to
incorporate idle and two-speed idle test procedures and standards. On
November 1, 1996, Pennsylvania submitted a formal amendment to its SIP
including draft specifications for ASM test procedures and ASM
cutpoints.
Response to Comment: By submitting its proposed ASM test procedures
in November of 1996, the Commonwealth has met the first of the
requirements set forth in EPA's October 3, 1996 proposed interim
conditional approval for a commitment needed to allow EPA to provide a
conditional approval. Under the terms of EPA's proposal, if those
requirements were not satisfied, EPA could not proceed with its final
interim rulemaking action.
To satisfy the condition for interim approval, the Commonwealth
must submit its final test equipment specifications and test procedures
for the ASM and two-speed idle tests, as well as the regulations which
require those tests as defined in the performance standard, within
twelve months of today's action. The condition, amended to reflect the
fact that the Commonwealth has provided a commitment to satisfy this
condition by a date certain, is being maintained in today's action.
Comment--Requirement for Real-Time Data Link Between Inspection
Stations and the Commonwealth
Pennsylvania commented that it will include a real-time computer
data link between test stations and the Commonwealth, or its
contractor. The Commonwealth also provided in its comments draft
regulatory language to require this real-time connection.
Response to Comment: EPA supports the Commonwealth's draft
regulatory language requiring a real-time data link between inspection
stations and the state. This amendment would satisfy EPA's related de
minimus deficiency cited in the October 3 proposal.
However, elsewhere in its comments the Commonwealth indicated that
it intends to obtain input from the Pennsylvania I/M Working Group on
all redrafted regulatory language prior to adopting these changes
through the state's regulatory adoption process. These revisions are
also subject to public participation at the state level, as well as
changes through the rule adoption process. Therefore, EPA considers the
Commonwealth's revised regulatory language to be draft, until final
regulations are adopted and submitted to EPA as a SIP revision, and
therefore cannot remove the minor deficiency until the Commonwealth
formally adopts and submits its final regulations to EPA.
Comment--Use of One-Mode ASM Test Procedure
In its proposed rulemaking, EPA stated that the Commonwealth was
considering use of a two-mode ASM test in the Philadelphia area,
instead of the one-mode ASM test described in the Commonwealth's SIP
revision. Pennsylvania commented that it is not proposing to implement
the two-mode ASM procedure at this time, opting instead to perform the
one-mode ASM test.
Response to Comment: EPA supports Pennsylvania's use of the one-
mode ASM test, as long as the Commonwealth can demonstrate that it
meets the performance standard requirements of 40 CFR 51.351. EPA will
make that determination upon submission of finally adopted regulations
which correspond to the Commonwealth's final performance standard
modeling. This determination will be made in the final SIP approval
action for Pennsylvania's I/M program, which EPA will promulgate after
all requirements specified in the interim approval have been satisfied.
Comment--Lack of Quality Control Procedures for ASM Testing
EPA's proposed rulemaking cited as a de minimus deficiency a lack
of quality control procedures for one-mode ASM testing, as required
under 40 CFR 51.359. Pennsylvania commented that it contemporaneously
submitted ASM quality control procedures with its ASM test procedures,
specifications, and standards. The SIP was amended by Pennsylvania to
include proposed ASM standards on November 1, 1996.
Pennsylvania stipulates that lack of quality control procedures is
not a SIP approval issue, but is instead a SIP implementation, or
compliance issue. Pennsylvania therefore argues that it has met the
quality control requirement at 40 CFR 51.359.
Response to Comment: EPA's requirements for I/M program quality
control are set forth in EPA's I/M regulation, at 40 CFR 51.359.
Specifically, the SIP shall include the procedure manual, rule,
ordinance, or law describing and establishing the quality control
procedures and requirements. EPA believes that establishment of quality
control procedures is a SIP approval issue, and is necessary to
maintain an effective program. In practice, EPA believes that
compliance oversight with these established procedures is critical to
the program's success.
The Commonwealth's proposed ASM equipment specifications submitted
in November of 1996 describe and establish quality control measures
related to that emissions measurement equipment. Since these
specifications are subject to change until the Commonwealth submits its
final SIP approval, EPA will make a final determination regarding this
de minimus deficiency when it takes final rulemaking action at the end
of the interim approval period provided for under the NHSDA.
Comment--Issuance of Waivers by the State: Waivers may be granted
to motorists whose vehicles fail to meet I/M testing standards after
spending a reasonable amount of money to obtain repairs to that effect,
after applying any available warranty coverage and excluding repairs
needed for ``tampered'' vehicles. EPA's I/M regulation at 40 CFR
51.360(c)(1) requires that if waivers are allowed under a state's I/M
program, then such waivers may be granted only by the state or by a
single contractor to the state.
The Commonwealth's proposed regulation allows qualified emission
inspection stations to issue waivers. In its proposed rulemaking on the
Commonwealth's I/M program, EPA cited as a de minimus deficiency the
Commonwealth's allowance of I/M test waivers.
Pennsylvania commented that it believes the NHSDA modified the
requirement for waiver issuance, and thus overrides EPA's I/M rule
requirement for centralized waiver issuance. The Commonwealth's basis
for this argument is that the NHSDA authorizes states to develop
decentralized I/M programs, and that centralized waiver issuance is not
compatible with Congress's intent. Pennsylvania argues that stringent
safeguards have been built-in to its I/M program (i.e., technician
certification, real-time data links between test stations and the
state, and strict enforcement requirements) which allow inspection
station personnel to issue waivers. Therefore, while Pennsylvania
commits to correct its regulations to provide for waiver issuance by a
single entity, the Commonwealth expressly requests that EPA allow
decentralized waiver issuance.
Response to Comment: To assure quality control of the issuance of
waivers, EPA required either the state or a single contractor to issue
waivers under 40 CFR 51.360(c). EPA believes this requirement was not
altered by the NHSDA. While the NHSDA does allow
[[Page 4014]]
for states to implement decentralized test networks, EPA does not
believe that Congress intended this to alter the requirements of the I/
M rule for quality assurance of the program. Further, EPA believes that
issuance of waivers by one authority would provide an effective
deterrent against fraud in decentralized or centralized testing
networks, as well as to ensure consumer protection through consistency
in waiver issuance criteria. EPA believes it is important for quality
assurance purposes that waiver control remains in the hands of one
entity. It is important to note that even prior to the advent of
``enhanced'' I/M programs, EPA has always maintained this requirement
for centralized waiver issuance for both centralized and decentralized
I/M programs. This requirement could also bolster public confidence in
the repair industry by providing an objective verification of the
appropriateness of test results and repairs.
Third-party verification of waiver eligibility serves to reinforce
both the inspection test results and the capabilities of repair
technicians within the program through positive reinforcement of the
professionalism of the repair industry and the emissions testing
program. Moreover, maintaining one waiver issuance authority provides
an extra incentive for the vehicle repair industry to maintain
integrity, leading to increased repair revenues and air quality
benefits from the I/M program, itself. Additionally, since a
centralized waiver system is not a new requirement, there is little
reason to expect an increase in frustration and/or delays for the
public.
Prior to passage of the NHSDA, EPA's I/M rule required centralized
waiver issuance for all programs, both centralized and decentralized.
Although the NHSDA increases flexibility to use decentralized programs,
it in no way indicates that requirements applicable to all programs,
such as waiver issuance should be altered. Therefore, EPA rejects the
Commonwealth's request to eliminate the requirement for waiver issuance
by a single entity, and urges the Commonwealth to consider means to
comply with the quality assurance requirement of 40 CFR 51.360(c).
Comment--Demonstration of the Effectiveness of the Commonwealth's
Sticker-Based Enforcement Mechanism
The CAA requires that states ensure compliance through the denial
of vehicle registration, with the exception of states having an
existing enforcement alternative that demonstrates to the EPA
Administrator that the alternative is more effective than registration
denial in ensuring that non-complying vehicles are not operated on
public roads.
Pennsylvania's SIP relies upon a sticker-based means of enforcement
to ensure motorist compliance with the program. In its proposal, EPA
conditioned interim approval of the SIP upon the Commonwealth's
satisfaction of the requirements of 40 CFR 51.361(b) related to
demonstration of compliance enforcement effectiveness.
The Commonwealth commented that its SIP contains a demonstration of
the effectiveness of sticker enforcement. The basis of the
demonstration is that the Commonwealth has statistical data from the
existing program indicating a motorist compliance rate of 97% (i.e.,
97% of all registered subject vehicles actually comply with I/M testing
requirements). However, for the same period, only 90.8% of the vehicles
subject to a separate state requirement to have a valid auto insurance
liability policy prior to obtaining re-registration actually complied
with this requirement. The Commonwealth therefore concludes that the I/
M program enforcement mechanism is more effective than a registration-
based mechanism used to enforce a separate insurance requirement. A
report contained in the SIP, as well as additional comments provided by
the Commonwealth on EPA's proposed rule, provide details of the
Commonwealth's comparative analysis. Finally, Pennsylvania comments
that its proposed I/M program contains enhancements over the existing
program which will ensure that the Commonwealth can maintain a 96%
motorist compliance rate, in accordance with the Commonwealth's
performance standard demonstration and the commitment provided in the
Commonwealth's SIP to maintain that level of compliance. Therefore, the
Commonwealth requests that EPA remove the proposed condition.
Another commenter indicated that EPA should require the
Commonwealth to use registration denial as its means for motorist
compliance enforcement. The Commonwealth's sticker enforcement
effectiveness demonstration is based, in part, upon the Commonwealth's
proposed integration of safety and emissions inspections into one
process (i.e., safety inspections cannot be completed prior to
completion of emissions testing). The commenter contends that with the
expense and other constraints of enhanced I/M testing, many inspection
stations in the existing I/M program may not participate in the
enhanced I/M program, particularly in the Philadelphia area where more
expensive and space-consuming ASM equipment is required. Therefore, it
would be unfair and unreasonable to penalize safety-only inspection
stations by placing them in a position to lose income because they do
not perform emissions testing. Furthermore, this commenter also
contends that it is not the responsibility of testing stations to act
as ``policemen'' and serve as the front line for enforcement of the
program. Therefore, the commenter supports registration denial as the
only palatable means of motorist enforcement.
Response to Comment: While section 182 of the CAA compels states to
adopt registration denial enforcement, it does provide certain states
the option to demonstrate alternatives to the satisfaction of the EPA
Administrator. EPA's I/M regulation at 40 CFR 51.361 defines criteria
for states' use in demonstrating the effectiveness of pre-existing
alternatives to registration denial enforcement.
EPA reviewed the demonstration provided in the Commonwealth's I/M
SIP, including a formal supplement to the SIP on June 27, 1996 to
clarify the sticker enforcement demonstration. EPA concluded in its
proposed rulemaking that the Commonwealth had not fully satisfied the
specific requirements of 40 CFR 51.361(b) (1) and (2). EPA therefore
proposed to condition its interim approval of the Commonwealth's I/M
SIP revision on the condition that the Commonwealth demonstrate to the
Administrator's satisfaction that the Commonwealth's sticker
enforcement program is more effective at deterring noncompliance than
denial of vehicle registration.
EPA believes the Commonwealth has made a compelling demonstration
for an alternative to registration denial under the provisions of 40
CFR 51.361(b)(1)(iii), relating to general requirements for alternative
enforcement mechanisms. However, the sticker enforcement / registration
compliance study submitted in Pennsylvania's SIP and subsequent
supplements provides only cursory information in relation to some of
the specific requirements under 40 CFR 51.361 (b)(1) and (b)(2)
necessary to demonstrate the effectiveness of a sticker-based
enforcement alternative, and does not in and of itself fully satisfy
EPA's requirements. Use of this type of generalized demonstration for
its alternative enforcement mechanism does not remove the additional
requirements specific to sticker-based enforcement alternatives set
forth in 40 CFR 51.361(b)(2). Pennsylvania's SIP
[[Page 4015]]
does not yet comply with all of these requirements to EPA's
satisfaction.
Therefore, EPA cannot remove the condition for approval related to
the Commonwealth's choice of a sticker-based alternative to
registration denial-based motorist compliance enforcement mechanism.
However, Pennsylvania committed in its November 1, 1996 SIP supplement
to submit any additional information needed to demonstrate the
effectiveness of its sticker enforcement program. Since the CAA
authorizes states to continue to use this type enforcement mechanism if
a state can demonstrate the adequacy of that mechanism to EPA's
satisfaction, EPA is compelled to allow the state to continue its use.
Should a state pursue sticker enforcement, it is the state's, not
EPA's, responsibility to consider equity and fairness issues for those
affected by the state's choice for an I/M motorist enforcement
mechanism. Therefore, EPA is today approving the Commonwealth's SIP,
conditioned upon the Commonwealth remedying the deficiencies related to
Pennsylvania's sticker enforcement mechanism, as described above.
Comment--Performance of Motorist Compliance Enforcement Program
Oversight
In its proposed rulemaking, EPA indicated that if the Commonwealth
chooses to contract out the responsibilities for motorist compliance
enforcement program oversight, as allowed by 40 CFR 51.362,
Pennsylvania must submit an RFP that adequately addresses how such a
private vendor will comply.
Pennsylvania commented that it intends to issue an RFP which
requires submission of a proposal to demonstrate how the selected
contractor will satisfy the required oversight requirements. The
Commonwealth also indicated that such an RFP will require bidding
contractors to describe how they intend to comply with the applicable
federal requirements. Pennsylvania's comments also indicated that it
intends to submit a copy of the proposal of the contractor selected to
conduct this oversight, and that this submission will satisfy EPA's
requirements for a description of the enforcement program oversight and
information management activities.
Response to Comment: EPA supports the Commonwealth's approach to
remedying this minor deficiency, with regard to a description of the
motorist compliance enforcement oversight program, as required by 40
CFR 51.362.
Until such time that the Commonwealth amends its SIP to describe
the motorist compliance enforcement oversight program in detail, or to
supplement the SIP with a legally binding contractual document that
describes how a vendor will satisfy this federal requirement, EPA
cannot consider the de minimus deficiency described in the October 3,
1996 proposed rulemaking to be remedied.
Comment--Performance of Quality Assurance Auditing
EPA's proposal cited as a de minimus deficiency the lack of a
requirement by the Commonwealth to annually audit their quality
assurance auditors, as required under 40 CFR 51.363. Pennsylvania
commented that it will modify its regulations to add such a
requirement. In addition, the Commonwealth provided draft regulatory
language in its comments to provide a partial means of remedying this
deficiency.
Pennsylvania commented that it intends to have auditing functions
performed by a private contractor. Again, Pennsylvania plans to issue
an RFP to any interested vendors which requires a private vendor to
comply with applicable federal requirements. Pennsylvania will then
submit to EPA the proposal for the selected vendor, which it believes
will satisfy EPA's requirement for a description of this program.
Response to Comment: EPA supports the Commonwealth's approach to
remedying this minor deficiency, with regard to the federal requirement
for the state to audit its own quality assurance auditors.
Until such time that the Commonwealth amends its SIP to describe in
detail its quality assurance auditing process, or to supplement the SIP
with a legally binding contractual document that describes how a vendor
will comply with this federal requirement, EPA cannot consider the de
minimus deficiency described in the October 3, 1996 proposed rulemaking
to be remedied. Therefore, EPA is retaining in its final interim
approval the de minimus deficiency related to this requirement.
In regard to the proposed regulatory revision to require this
auditing of the Commonwealth's auditors, EPA finds the language
acceptable. However, the Commonwealth intends to obtain input from the
Pennsylvania I/M Working Group on all amendments to its I/M regulation
prior to adopting these changes through the the regulatory adoption
process. These revisions are also subject to public participation at
the state level, as well as changes through the rule adoption process.
Therefore, EPA considers the Commonwealth's revised regulatory language
to be draft, until final regulations are adopted and submitted to EPA
as a SIP revision.
Therefore EPA cannot remove the minor deficiency until the
Commonwealth formally adopts and submits to EPA its final regulations
and the RFP or other legal document describing this I/M program
function to the detail required under federal law.
Comment--Recordkeeping Requirements for Enforcement Actions
EPA's proposed rulemaking cited that the Commonwealth's SIP does
not include provisions for Pennsylvania to maintain and submit to EPA
records of enforcement actions taken by the Commonwealth against
emission inspection stations. The Commonwealth comments assert that
EPA's regulations at 40 CFR 51.364 require only that the state
maintains such records, not that the state is required to submit such
records to EPA. Pennsylvania contends that its regulations, as
submitted in the March SIP submittal, currently require that these
records be maintained by the Commonwealth, and that such records are
available to EPA for inspection at any time.
Response to Comment: EPA agrees with this comment. EPA's proposal
mistakenly cited the Commonwealth's failure to submit records of
inspection station enforcement including warnings, fines, suspensions,
revocations, etc., in addition to maintenance of such records. This is
not a requirement of 40 CFR 51.364, and therefore EPA accepts the
Commonwealth's comment. Recordkeeping may be limited to maintenance of
such enforcement records, and inclusion of such related enforcement
statistics in summary reports to EPA, per requirements of 40 CFR
51.366(b).
EPA is amending its de minimus requirement related to maintenance
and submission of such records to require only maintenance of those
records.
Comment--Data Collection and Data Analysis Reporting
EPA indicated in its proposed rulemaking that Pennsylvania must
provide the RFP for how the data collection and data analysis and
reporting requirements at 40 CFR 51.365 and 366. The Commonwealth
commented that there is no federal requirement for how data is to be
collected, only that the SIP must describe the type of data to be
collected. The Commonwealth argues that since EPA raised no objections
in its proposed rulemaking to the type of data to be
[[Page 4016]]
collected, Pennsylvania meets the SIP requirements of EPA's
regulations.
Pennsylvania commented that it intends to issue an RFP which
requires the vendor's proposal to demonstrate how the vendor will
comply with federal data collection and data analysis and reporting
requirements. Pennsylvania contends that analysis and submittal of
reports is an implementation issue, and not a SIP approval requirement,
and that submission of this information in the SIP is neither necessary
nor a basis for approval.
Response to Comment: EPA's proposal cites a failure by the
Commonwealth to address in its SIP how the state, or its contractor,
will comply with the data collection requirements of 40 CFR 51.365 and
51.366, as well as how it will comply with the reporting requirements
of Sec. 51.366.
Until the Commonwealth either amends its SIP to describe the data
elements that will be collected under 40 CFR 51.365, or to submit an
RFP or other legally binding document to describe how a contractor to
the Commonwealth will fulfill this function, EPA does not consider this
requirement to be satisfied. Contrary to the Commonwealth's assertion,
EPA noted in its proposal that the Commonwealth's SIP submittal does
not adequately address how a private vendor will comply with the
specific requirements of 40 CFR 51.365. Therefore, EPA refutes the
Commonwealth's allegation that EPA raised no objections to the type of
data to be collected by the Commonwealth.
At this time, the Commonwealth has not submitted either an RFP, or
a legally binding document, which demonstrates that the contractor
selected by the Commonwealth to perform data analysis and reporting to
EPA will satisfy the requirements for those responsibilities described
within 40 CFR 51.366. While the performance of data analysis and
submission of such data summary reports to EPA are both implementation
issues, the SIP must describe the type of data to be collected,
including a detailed description of the specific elements to be
included in the state's reports required to be compiled and submitted
under 40 CFR 51.366. While data analysis and reporting are
implementation functions, the specific description of what is to be
reported must be included in the SIP, and is thus a SIP approvability
issue.
Until such time that the Commonwealth amends its SIP to describe in
detail the data collection, analysis, and reporting functions, or to
supplement the SIP with an RFP or other legal contractual document that
describes how a vendor will satisfy this federal requirement, EPA
cannot consider the de minimus deficiency, as described in the October
3, 1996 proposed rulemaking, to be remedied.
Comment--Requirement for Inspector Training
EPA's proposal cites as de minimus the failure on the part of the
Commonwealth in its SIP to require inspectors to complete refresher
training or to pass a skills re-test prior to being recertified. The
SIP also cites a lack of commitment on the Commonwealth's part to
monitor and evaluate the delivery of the inspector training program.
Pennsylvania provided draft regulatory language to remedy these
deficiencies in its comments to EPA's proposal.
Response to Comment: EPA supports the Commonwealth's draft
regulatory language. Once the regulatory language is finalized, this
correction would remedy the minor deficiency set forth in EPA's October
3, 1996 proposed rulemaking.
However, Pennsylvania also indicated in its comments that the
Commonwealth intends to obtain input from the Pennsylvania I/M Working
Group on all redrafted regulatory language prior to adopting these
changes through the state's regulatory adoption process. These
revisions are also subject to public participation at the state level,
as well as to changes through the rule adoption process, itself.
Therefore, EPA considers the Commonwealth's revised regulatory language
to be draft, until final regulations are adopted and submitted to EPA
as a SIP revision, and therefore cannot remove the minor deficiency
until the Commonwealth formally adopts and formally submits its final
regulations to EPA.
Comment--Public Information and Consumer Protection Plan
In its October 3, 1996 rulemaking, EPA found the SIP's lack of a
description of a public information plan and a consumer protection plan
to be de minimus deficiency. Since the SIP indicates that these
responsibilities are to be privatized through contract with a vendor,
EPA proposed that the RFP describing how that vendor would comply with
those requirements of 40 CFR 51.368 should be submitted to EPA as part
of the SIP revision.
Pennsylvania commented that it intends to issue an RFP which will
require vendors to adopt a plan to include the following public
information: the air quality problem, requirements of federal and state
law, role of motor vehicles in the air quality problem, the need for
and benefits of an I/M program, how to maintain a vehicle in a low-
emission condition, how to find a qualified repair technician, and the
requirements of the I/M program.
The Commonwealth intends to provide alternative repair statistical
information to motorists, as required by 40 CFR 51.368(a). The separate
requirement to conduct performance monitoring of repair stations is
found at 40 CFR 51.369(b)(1). Rather than providing detailed statistics
on a repair facility's ability to repair specific vehicles, the
Commonwealth intends to convey to the public similar information on the
relative ability of a repair facility to perform repairs on specific
emission systems components, in relation to average costs for those
repairs across an entire county.
In a related comment, Pennsylvania indicated that it will amend its
regulation to require inspection stations to provide software generated
interpretive diagnostic information to vehicle owners failing a test,
as a partial means of complying with the performance monitoring
requirements for improving repair effectiveness found at 40 CFR 51.369.
Response to Comment: The Commonwealth has not yet provided an
adequately detailed description of its public awareness plan in its
SIP, as required by EPA's regulation at 40 CFR 51.368(a). While
inclusion of the specific information described above (and in the
Commonwealth's comments) would in an RFP or other legally binding
contractual document would serve, in part, to satisfy the federal
requirement, the Commonwealth has not yet provided either.
Further, Pennsylvania has not yet amended the SIP, or submitted an
RFP to describe, in detail, its approach to satisfying the performance
monitoring requirements of 40 CFR 51.369(b)(1). Pennsylvania must
develop an approvable performance monitoring plan in order to satisfy
the public information plan requirements of 40 CFR 51.368 which depend
upon performance monitoring information.
Pennsylvania does assert in its comments that it believes this
performance monitoring approach will satisfy the requirements of 40 CFR
51.369(b)(1). This does not remedy the minor deficiency cited in EPA's
proposed rulemaking related to the requirements of 40 CFR 51.369(b)(1)
for a performance monitoring plan.
EPA will not accept an alternative to the performance monitoring
function required under 40 CFR 51.369(b)(1),
[[Page 4017]]
unless that alternative focuses not only upon the cost of repairs, but
also upon the facility-specific effectiveness of those repairs in
relation to the purpose of the I/M program (i.e., reducing emissions
levels for the vehicle for the pollutant for which it failed an I/M
test).
The Commonwealth must amend its SIP to describe in detail the
performance monitoring function, and its application to consumer
information and consumer protection; per the requirements of 40 CFR
51.368(a) and 40 CFR 51.369(b)(1). Until then, EPA must maintain the
related de minimus deficiency, as described in the October 3, 1996
proposed rulemaking, in its final interim approval action.
Comment--Description of On-Road Testing Requirements
EPA's proposed rulemaking cited as a minor deficiency the SIP's
lack of information regarding the Commonwealth's proposed on-road
testing program. Specifically, EPA cited a lack of information on
resource allocations, methods of analyzing and reporting the results of
the testing, and information on staffing requirements for both the
Commonwealth and any vendor to perform on-road testing.
Pennsylvania commented that its RFP will address the issue of
compliance by a private vendor and will comply with federal on-road
testing requirements. That RFP is to require vendors bidding on the
contract to submit a proposal demonstrating compliance with federal on-
road testing requirements. Pennsylvania commented that it would then
submit to EPA the proposal for the selected vendor, which it believes
will satisfy EPA's requirement for a detailed description of this
program.
Pertaining to the requirement for demonstrating adequate resources
to perform on-road testing functions, Pennsylvania commented that it
will provide detailed staffing requirements for Commonwealth staff
committed to this function.
Response to Comment: EPA supports the Commonwealth's approach to
remedying this minor deficiency, with regard to the on-road testing
program description and the resources to operate that program.
Until such time that the Commonwealth amends its SIP to describe
the on-road testing program in detail, or to supplement the SIP with a
legal contractual document that describes how a vendor will satisfy
this federal requirement, EPA cannot consider the de minimus
deficiency, as described in the October 3, 1996 proposed rulemaking, to
be remedied. Additionally, the deficiency cannot be remedied until
Pennsylvania amends the SIP to adequately describe the resources
allocated to on-road testing.
IV. Final Rulemaking Action
EPA is conditionally approving the enhanced I/M program as a
revision to the Pennsylvania SIP, based upon certain conditions. Should
the Commonwealth fail to fulfill the conditions by the deadlines
contained in each condition, the latest of which is no more than one
year after the date of EPA's final interim approval action, this
conditional, interim approval will convert to a disapproval pursuant to
CAA section 110(k)(4). In that event, EPA would issue a letter to
notify the Commonwealth that the conditions had not been met.
V. Conditional Interim Approval
Under the terms of EPA's October 3, 1996 proposed interim
conditional approval rulemaking, the Commonwealth was required to make
commitments (within 30 days) to remedy five major deficiencies with the
I/M program SIP (as specified in the NPR), within twelve months of
final interim approval. On November 1, 1996, Pennsylvania submitted a
letter from James M. Seif, Secretary of the Pennsylvania Department of
Environmental Protection, to EPA committing to satisfy the major
deficiencies cited in the NPR, by dates certain specified in the
letter. Since EPA is in receipt of the Commonwealth's commitments, EPA
is today taking final conditional approval action upon the Pennsylvania
I/M SIP, under section 110 of the CAA. As discussed in detail later in
this notice, this approval is being granted on an interim basis, for an
18-month period under authority of the NHDSA.
The conditions for approvability of the SIP are as follows:
(1) By no later than September 15, 1997, a notice must be published
in the Pennsylvania Bulletin by the Secretary of the Pennsylvania
Department of Transportation which certifies that the enhanced I/M
program is required in order to comply with federal law and also
certifies the geographic areas which are subject to the enhanced I/M
program (the geographic coverage must be identical to that listed in
Appendix A-1 of the March 22, 1996 SIP submittal), and certifies the
commencement date of the enhanced I/M program. The I/M program for the
five-county Philadelphia area and for the four-county Pittsburgh area
must commence by no later than November 15, 1997, and the I/M program
for the remaining 16 counties must commence no later than November 15,
1999.
(2) The Commonwealth must submit to EPA as a SIP amendment, within
twelve months of EPA's final interim rulemaking action, the final
Pennsylvania I/M regulation which requires a METT-based evaluation be
performed on 0.1% of the subject fleet each year as per 40 CFR
51.353(c)(3) and which meets all other program evaluation elements
specified in 40 CFR 51.353(c). EPA is amending this condition from that
of its proposed rulemaking to remove the portion of the condition which
would require the Commonwealth to comply with the requirements of 40
CFR 51.353(b)(1).
(3) By no later than November 15, 1997, the Commonwealth must
submit a demonstration to EPA as an amendment to the SIP that meets the
requirements of 40 CFR 51.361 (b)(1) and (b)(2) and demonstrates that
Pennsylvania's existing sticker enforcement system is more effective
than registration denial enforcement.
(4) Within twelve months of EPA's final interim rulemaking action,
Pennsylvania must adopt and submit a final Pennsylvania I/M regulation
which requires and which specifies the following: exhaust test
procedures, standards, and equipment specifications; and evaporative
system functional test methods, standards and procedures; a visual
inspection procedure for determining the presence of or tampering with
of vehicle emission control devices; and a repair technician training
and certification (TTC) program. The test methods and procedures
established under the Commonwealth's I/M regulation must be acceptable
to EPA, as well as to the Commonwealth. The test methods and standards
provided for by the Commonwealth's final regulation must reflect the
modeling assumptions found in the Commonwealth's final performance
standard modeling demonstration (which must satisfy the requirements of
40 CFR 51.351).
Within the same time frame, detailed test equipment specifications
and standards (which are acceptable to EPA, as well as to the
Commonwealth) for all of the I/M evaporative and exhaust tests provided
for by the Commonwealth's regulation (as described above) must be
finalized and submitted as a SIP revision to EPA.
(5) The Commonwealth must perform and submit the final modeling
demonstration that its program will meet the relevant enhanced
performance standard, within twelve months of today's final interim
rulemaking.
In addition to the above conditions, the Commonwealth must correct
several
[[Page 4018]]
minor, or de minimus, deficiencies related to CAA requirements for
enhanced I/M. Although satisfaction of these deficiencies does not
affect the conditional interim approval status of the Commonwealth's
rulemaking, these deficiencies must be corrected in the final I/M SIP
revision, to be submitted at the end of the 18-month interim period:
(1) The final I/M SIP submittal must detail the number of personnel
and equipment dedicated to the quality assurance program, data
collection, data analysis, program administration, enforcement, public
education and assistance, on-road testing and other necessary functions
as per 40 CFR 51.354;
(2) The definition of light duty truck in the definitions section
of the final Pennsylvania I/M regulation must provide for coverage up
to 9,000 pounds GVWR;
(3) The final Pennsylvania I/M regulation must require
implementation of the final full stringency emission standards at the
beginning of the second test cycle so that the state can obtain the
full emission reduction program credit prior to the first program
evaluation date;
(4) The final Pennsylvania I/M regulation must require a real-time
data link between the state or contractor and each emission inspection
station as per 40 CFR 51.358(b)(2);
(5) The final I/M SIP submittal must provide quality control
requirements for one-mode ASM (or two-mode ASM if the Commonwealth opts
for it);
(6) The Pennsylvania I/M regulation must only allow the
Commonwealth or a single contractor to issue waivers as per 40 CFR
51.360(c)(1);
(7) The final I/M SIP submittal must include the RFP, or other
legally binding document, which adequately addresses how the private
vendor selected to perform motorist compliance enforcement
responsibilities for the Commonwealth's program will comply with the
requirements as per 40 CFR 51.362;
(8) The final I/M SIP submittal must include the RFP that
adequately addresses how the private vendor will comply with 40 CFR
51.363, a procedures manual which adequately addresses the quality
assurance program and a requirement that annual auditing of the quality
assurance auditors will occur as per 40 CFR 51.363(d)(2);
(9) The final I/M SIP submittal must include provisions to maintain
records of all warnings, civil fines, suspensions, revocations,
violations and penalties against inspectors and stations, per the
requirements of 40 CFR 51.364;
(10) The final I/M SIP submittal must include a RFP, or other
legally binding document, which adequately addresses how the private
vendor selected by the Commonwealth to perform data collection and data
analysis and reporting will comply with all the requirements of 40 CFR
51.365 and 51.366;
(11) The final Pennsylvania I/M regulation must require that
emissions inspectors complete a refresher training course or pass a
comprehensive skill examination prior to being recertified and the
final SIP revision must include a commitment that the Commonwealth will
monitor and evaluate the inspector training program delivery, per the
requirements of 40 CFR 51.367;
(12) The final I/M SIP submittal must include a RFP, or other
legally binding document, which adequately addresses how the
Commonwealth's selected contractor will comply with the public
information requirements of 40 CFR 51.368;
(13) The Pennsylvania I/M regulation must include provisions that
meet the requirements of 40 CFR 51.368(a) and 51.369(b) for a repair
facility performance monitoring program plan and for providing the
motorist with diagnostic information based on the particular portions
of the test that were failed; and
(14) The final I/M SIP submittal must contain sufficient
information to adequately address the on-road test program resource
allocations, methods of analyzing and reporting the results of the on-
road testing, and information on staffing requirements for both the
Commonwealth and the private vendor for the on-road testing program.
VI. Further Requirements for Permanent I/M SIP Approval
This approval is being granted on an interim basis for a period of
18 months, under the authority of section 348 of the National Highway
Systems Designation Act of 1995. At the end of this period, the
approval will lapse. At that time, EPA must take final rulemaking
action upon the Commonwealth's SIP, under the authority of section 110
of the Clean Air Act. Final approval of the Commonwealth's plan will be
granted based upon the following criteria:
(1) The Commonwealth has complied with all the conditions of its
commitment to EPA;
(2) EPA's review of the Commonwealth's program evaluation confirms
that the appropriate amount of program credit was claimed by the
Commonwealth and achieved with the interim program;
(3) Final program regulations are submitted to EPA; and
(4) The Commonwealth's I/M program meets all of the requirements of
EPA's I/M rule, including those de minimis deficiencies identified in
the October 3, 1996 proposal (61 FR 51638) as minor for purposes of
interim approval.
VII. Administrative Requirements
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.
A. Executive Order 12866
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 Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
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. 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.
Conditional approvals of SIP submittals under section 110 and
subchapter I, part D of the CAA do not create any new requirements but
simply approve requirements that the State is already imposing.
Therefore, because the Federal SIP approval does not impose any new
requirements, I certify that it does not have a significant impact on
any small entities affected. Moreover, due to the nature of the
Federal-State relationship under the CAA, preparation of a flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
EPA,
[[Page 4019]]
427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
If the conditional approval is converted to a disapproval under
section 110(k), based on the State's failure to meet the commitment, it
will not affect any existing state requirements applicable to small
entities. Federal disapproval of the state submittal does not affect
its state-enforceability. Moreover, EPA's disapproval of the submittal
does not impose a new Federal requirement. 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 nor does it substitute a new federal requirement.
C. 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
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 proposed/promulgated
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.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added 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 not a ``major rule'' as defined by 5
U.S.C. 804(2).
E. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by March 31, 1997.
Filing a petition for reconsideration by the Administrator of this
final rule to conditionally approve the Pennsylvania I/M SIP, on an
interim basis, 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) of the Administrative Procedures Act).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements.
Dated: January 13, 1997.
W. Michael McCabe,
Regional Administrator, Region III.
Chapter I, title 40, of the Code of Federal Regulations is amended
as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart NN--Pennsylvania
2. Section 52.2026 is added to read as follows:
Sec. 52.2026 Conditional Approval.
The Commonwealth of Pennsylvania's March 27, 1996 submittal for an
enhanced motor vehicle inspection and maintenance (I/M) program, as
amended on June 27, 1996 and July 29, 1996, and November 1, 1996, is
conditionally approved based on certain contingencies, for an interim
period to last eighteen months.
(a) The conditions for approvability are as follows:
(1) By no later than September 15, 1997, a notice must be published
in the Pennsylvania Bulletin by the Secretary of the Pennsylvania
Department of Transportation which certifies that the enhanced I/M
program is required in order to comply with federal law and also
certifies the geographic areas which are subject to the enhanced I/M
program (the geographic coverage must be identical to that listed in
Appendix A-1 of the March 22, 1996 SIP submittal), and certifies the
commencement date of the enhanced I/M program. The I/M program for the
five-county Philadelphia area and for the four-county Pittsburgh area
must commence by no later than November 15, 1997, and the I/M program
for the remaining 16 counties must commence no later than November 15,
1999.
(2) The Commonwealth must submit to EPA as a SIP amendment, within
twelve months of EPA's final interim rulemaking action, the final
Pennsylvania I/M regulation which requires a mass-based emission,
transient testing-based evaluation be performed on 0.1% of the subject
fleet each year as per 40 CFR 51.353(c)(3) and which meets the program
evaluation elements as specified in 40 CFR 51.353(c).
(3) By no later than November 15, 1997, the Commonwealth must
submit a demonstration to EPA as an amendment to the SIP that meets the
requirements of 40 CFR 51.361(b)(1) and (b)(2) and demonstrates that
Pennsylvania's existing sticker enforcement system is more effective
than registration denial enforcement.
(4) Within twelve months of EPA's final interim rulemaking action,
Pennsylvania must adopt and submit a final Pennsylvania I/M regulation
which requires and which specifies the following: exhaust test
procedures, standards, and equipment specifications; and evaporative
system functional test methods, standards and procedures; a visual
inspection procedure for determining the presence of or tampering with
of vehicle emission control devices; and a repair technician training
and certification (TTC) program. The test methods and procedures
established under the Commonwealth's I/M regulation must be acceptable
to EPA, as well as to the Commonwealth. The test methods and standards
provided for by the Commonwealth's final regulation must reflect the
modeling assumptions found in the Commonwealth's final performance
standard modeling demonstration (which must satisfy the requirements of
40 CFR 51.351). Within the same time frame, detailed test equipment
specifications and standards (which are acceptable to EPA, as well as
to the Commonwealth) for all of the I/M evaporative and exhaust tests
provided for by the Commonwealth's regulation (as described above) must
be finalized and submitted as a SIP revision to EPA.
[[Page 4020]]
(5) The Commonwealth must perform and submit the final modeling
demonstration that its program will meet the relevant enhanced
performance standard, within twelve months of EPA's final interim
rulemaking.
(b) In addition to the above conditions for approval, the
Commonwealth must correct several minor, or de minimus deficiencies
related to CAA requirements for enhanced I/M. Although satisfaction of
these deficiencies does not affect the conditional approval status of
the Commonwealth's rulemaking granted under the authority of section
110 of the Clean Air Act, these deficiencies must be corrected in the
final I/M SIP revision prior to the end of the 18-month interim period
granted under the National Highway Safety Designation Act of 1995:
(1) The final I/M SIP submittal must detail the number of personnel
and equipment dedicated to the quality assurance program, data
collection, data analysis, program administration, enforcement, public
education and assistance, on-road testing and other necessary functions
as per 40 CFR 51.354;
(2) The definition of light duty truck in the definitions section
of the final Pennsylvania I/M regulation must provide for coverage up
to 9,000 pounds GVWR;
(3) The final Pennsylvania I/M regulation must require
implementation of the final full stringency emission standards at the
beginning of the second test cycle so that the state can obtain the
full emission reduction program credit prior to the first program
evaluation date;
(4) The final Pennsylvania I/M regulation must require a real-time
data link between the state or contractor and each emission inspection
station as per 40 CFR 51.358(b)(2);
(5) The final I/M SIP submittal must provide quality control
requirements for one-mode ASM (or two-mode ASM if the Commonwealth opts
for it);
(6) The Pennsylvania I/M regulation must only allow the
Commonwealth or a single contractor to issue waivers as per 40 CFR
51.360(c)(1);
(7) The final I/M SIP submittal must include the RFP, or other
legally binding document, which adequately addresses how the private
vendor selected to perform motorist compliance enforcement
responsibilities for the Commonwealth's program will comply with the
requirements as per 40 CFR 51.362;
(8) The final I/M SIP submittal must include the RFP that
adequately addresses how the private vendor will comply with 40 CFR
51.363, a procedures manual which adequately addresses the quality
assurance program and a requirement that annual auditing of the quality
assurance auditors will occur as per 40 CFR 51.363(d)(2);
(9) The final I/M SIP submittal must include provisions to maintain
records of all warnings, civil fines, suspensions, revocations,
violations and penalties against inspectors and stations, per the
requirements of 40 CFR 51.364;
(10) The final I/M SIP submittal must include a RFP, or other
legally binding document, which adequately addresses how the private
vendor selected by the Commonwealth to perform data collection and data
analysis and reporting will comply with all the requirements of 40 CFR
51.365 and 51.366;
(11) The final Pennsylvania I/M regulation must require that
emissions inspectors complete a refresher training course or pass a
comprehensive skill examination prior to being recertified and the
final SIP revisions must include a commitment that the Commonwealth
will monitor and evaluate the inspector training program delivery, per
the requirements of 40 CFR 51.367;
(12) The final I/M SIP submittal must include a RFP, or other
legally binding document, which adequately addresses how the
Commonwealth's selected contractor will comply with the public
information requirements of 40 CFR 51.368;
(13) The Pennsylvania I/M regulation must include provisions that
meet the requirements of 40 CFR 51.368(a)and 51.369(b) for a repair
facility performance monitoring program plan and for providing the
motorist with diagnostic information based on the particular portions
of the test that were failed; and
(14) The final I/M SIP submittal must contain sufficient
information to adequately address the on-road test program resource
allocations, methods of analyzing and reporting the results of the on-
road testing and information on staffing requirements for both the
Commonwealth and the private vendor for the on-road testing program.
[FR Doc. 97-1846 Filed 1-27-97; 8:45 am]
BILLING CODE 6560-50-P
