[Federal Register Volume 59, Number 196 (Wednesday, October 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25206]
[[Page Unknown]]
[Federal Register: October 12, 1994]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NH14-1-6672; A-1-FRL-5085-5]
Approval and Promulgation of Air Quality Implementation Plans;
New Hampshire; Enhanced Inspection and Maintenance in Hillsborough,
Merrimack, Rockingham, and Strafford Counties
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is conditionally approving a State Implementation Plan
(SIP) revision submitted by the State of New Hampshire. This revision
requires and establishes an enhanced motor vehicle inspection and
maintenance program in the counties of Hillsborough, Merrimack,
Rockingham, and Strafford. The intended effect of this action is to
conditionally approve the New Hampshire enhanced inspection and
maintenance program. This action is being taken in accordance with the
Clean Air Act.
EFFECTIVE DATE: This final rule will become effective on November 14,
1994..
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection, by appointment, during normal business
hours at the Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, New England Region, One Congress
Street, 10th Floor, Boston, MA; Air and Radiation Docket and
Information Center, U.S. Environmental Protection Agency, 401 M Street,
SW., (LE-131), Washington, DC 20460; and Air Resources Division,
Department of Environmental Services, 64 North Main Street, Caller Box
2033, Concord, NH 03302-2033.
FOR FURTHER INFORMATION CONTACT: Peter X. Hagerty, (617) 565-3224.
SUPPLEMENTARY INFORMATION:
I. Clean Air Act Requirements
The Clean Air Act, as amended in 1990 (CAA or Act), requires
certain States to revise and improve existing I/M programs or implement
new ones. All ozone nonattainment areas classified as moderate or worse
must implement a basic or enhanced I/M program depending upon its
nonattainment classification, regardless of previous requirements. In
addition, Congress directed the EPA in section 182(a)(2)(B) to publish
updated guidance for State I/M programs, taking into consideration
findings of the Administrator's audits and investigations of these
programs. The States must incorporate EPA's guidance into SIPs for all
areas required by the Act to have an I/M program. Metropolitan
statistical areas with populations of 100,000 or more that are within
the Northeast Ozone Transport Region also are required to meet EPA
guidance for enhanced I/M programs.
II. Background
The EPA has designated three areas as nonattainment for ozone in
the State of New Hampshire. The New Hampshire portion of the Boston-
Lawrence-Salem Consolidated Metropolitan Statistical Area is classified
serious for ozone, the Portsmouth-Dover-Rochester Metropolitan
Statistical Area (MSA), also classified serious for ozone, and the
Manchester MSA, classified marginal for ozone. The designations for
ozone were published in the Federal Register (FR) on November 6, 1991
(56 FR 56694) and November 30, 1992 (57 FR 56762) and have been
codified in the Code of Federal Regulations (CFR) at 40 CFR 81.300
through 81.437. Based on these nonattainment designations, an enhanced
I/M program is required in Hillsborough, Rockingham, and Strafford
Counties. In addition, these MSAs have populations of over 100,000 and
are included in the Ozone Transport Region.
Although parts of Merrimack County are in the Manchester MSA, the
county could be exempted since, in New England, MSAs are defined by
town, not by county; more than fifty percent of the MSA population
would still be in the I/M program; and the population density is less
than 200 persons per square mile. Under EPA's I/M rule 40 CFR
51.350(b)(1) such portions of Merrimack County are not required to
implement I/M. However, all of Merrimack County is included to provide
an opportunity to generate enforceable emission reductions that may be
used to help provide opportunity for economic growth.
By this action, EPA is conditionally approving the New Hampshire I/
M SIP revision. EPA has reviewed the State submittals against the
statutory requirements under the Act and for consistency with EPA
regulations. In letters dated May 19, 1994 and June 28, 1994, New
Hampshire indicated its intent to address a number of outstanding
issues discussed in this document as well as in the July 18, 1994
notice of proposed rulemaking (NPR), and to submit necessary revisions
to EPA by August 18, 1994. New Hampshire submitted such revisions on
August 18. They are consistent with the NPR as discussed below and
fully meet the requirements of the I/M rule, except for the portions
being conditionally approved in this document.
Three parts of the program, on-road testing, compliance via
diagnostic inspection, and enforcement against inspectors require more
time to resolve and provide the basis for today's conditional approval.
As requested by New Hampshire, the state will have until July 29, 1995
to submit revisions to address these three areas. If such revisions are
submitted by that date, fulfill the conditions set forth in this
document, and fully meet the requirements of the I/M rule, the state
will have met the specified conditions and the I/M SIP will be fully
approved. If not, this conditional approval will automatically convert
to a disapproval. A summary of EPA's analysis is provided below. In
addition, more detailed support for conditionally approving the State
submittal is contained in the technical support document which is
available from the New England Regional Office, listed above.
On November 5, 1992 (57 FR 52950), EPA published a final regulation
establishing the I/M requirements, pursuant to sections 182 and 187 of
the Act. The I/M regulation was codified at 40 CFR part 51, subpart S,
and requires States to submit, by November 15, 1993, an I/M SIP
revision including all necessary legal authority and the items
specified in 40 CFR 51.350(a)(1) through 51.373.
III. State Submittal
On February 28, 1994, April 19, 1994, and April 21, 1994, the State
of New Hampshire submitted an I/M SIP for its three nonattainment
areas. Public hearings for the submittals were held on January 5 and 6,
1994 for the February 28, 1994 SIP submittal, and on March 8, 1994 for
the April 19, 1994 SIP submittal. The April 21, 1994 submittal
contained only administrative materials to supplement the April 19
submission. EPA submitted written comments to the state on March 18,
1994. In letters dated May 19, 1994 and June 28, 1994, the state agreed
to submit by August 19, 1994, additional information to address the
areas discussed below.
The submittals provide for the implementation of an enhanced I/M
program in four counties in New Hampshire beginning in 1995. New
Hampshire will be implementing a biennial, test-only I/M program
meeting the requirements of the I/M performance standard and other
requirements contained in EPA's I/M rule. Testing will be overseen by
the New Hampshire Department of Safety (NHDOS) and the New Hampshire
Department of Environmental Services (NHDES), with actual testing done
by a contractor. Other aspects of the New Hampshire I/M program
include: testing of 1968 and later light duty vehicles and trucks and
heavy duty trucks, evaporative emission testing for 1975 and later
model year vehicles, a test fee to ensure the State has adequate
resources to implement the program, enforcement by registration
suspension, a repair effectiveness program, contractual requirements
for testing convenience, quality assurance, data collection, minimum
expenditure, time extension and hardship waivers, reporting, test
equipment and test procedure specifications, public information and
consumer protection, inspector training and certification, and
penalties against inspector incompetence. In addition, the enhanced I/M
program will include: IM240 testing for 1981 and newer vehicles, an on-
road testing program, and emission recall enforcement.
On July 18, 1994, EPA published a notice of proposed rulemaking
(NPR) for the State of New Hampshire (59 FR 36408). The NPR proposed
conditional approval of the New Hampshire enhanced inspection and
maintenance program. In response to the NPR an additional submittal was
made by New Hampshire on August 18, 1994.
The NPR identified eight areas which needed to be addressed by New
Hampshire. The August 18, 1994 submission by New Hampshire adequately
addressed these areas. Each one is discussed below and the state's
response summarized.
1. Enhanced I/M Performance Standard--Some of the assumptions used
by New Hampshire in the MOBILE5a modeling demonstration needed to be
revised. The assumptions for gasoline Reid Vapor Pressure (RVP) and
vehicle refueling emissions used in the model program were not the same
as those used in the New Hampshire proposed program. The state was also
asked to review the assumptions for compliance and waiver rates and
revise them if appropriate. The compliance and waiver rates are
discussed elsewhere in this document. The state revised the assumptions
appropriately in the August 18, 1994 submittal, which included a new
MOBILE5a modeling demonstration showing that the performance standard
will be met with the proposed New Hampshire program.
2. Network Type and Program Evaluation--The state did not have
provisions to bar contractor employees from referring motorists to
particular repair facilities. The state has provided contract language
drafted by the New Hampshire Office of the Attorney General, the
substance of which will be included in the final contract, to bar
contractor employees from referring motorists to particular repair
facilities and to provide for appropriate penalties.
3. Vehicle Coverage--The state did not provide adequate information
on vehicles subject to the program. In its August 18 submittal, New
Hampshire included a table showing the number of subject vehicles by
model year and provided information on exempt vehicles.
4. Quality Control--The state did not address the required quality
control manual in sufficient detail. The state indicated in previous
submittals that the quality control manual will be developed by the
contractor. The manual will follow specifications for quality control
per EPA's Technical Guidance, and New Hampshire regulations. In the
August 18 submittal, New Hampshire included a table of contents for the
manual. Based on these documents, the resulting quality control manual
will meet EPA requirements.
5. Waiver Rate--The state offered to provide additional guidance on
procedures for waiver review, and to reconsider the 1% waiver rate in
the original submittal. The state explained in the August 18 submittal
that the present waiver rate is less than one half of one percent, and
that in order to qualify for a waiver, verification of repairs must be
done by a highly trained state referee, and repairs must be performed
by a certified mechanic who will have attended up to 120 hours of
training. Although New Hampshire does not expect the waiver rate to
increase, they increased the rate in the SIP to 2%.
6. Motorist Compliance Enforcement--The state needed to submit
information justifying a 99% compliance rate, describing the computer
matching system, handling of exempt vehicles, fleet vehicles, and
tracking of out of state exemptions and time extensions. In the August
18 submittal, the state described a 12 point enforcement program which
will assure a 99% compliance rate. The state also described the
software and hardware upgrades which will be made to the computer
matching system. As part of the Enforcement Compliance Procedures also
submitted on August 18, change of status actions, which could make a
previously subject vehicle exempt, must be verified by a Highway
Enforcement Officer. Fleet vehicles must be tested at the contractor
facilities and meet the same requirements as other vehicles. A more
detailed fleet plan will be developed as part of the contract. New
Hampshire explained that out of state exemptions and time extensions
would be tracked with the computer system, and vehicle owners would be
issued registration suspensions when the time of the extension ran out
if the vehicle was not in compliance.
7. Quality Assurance--The state agreed to address certain points in
the August 18 submittal. The August 18 submittal stated that audit
reports will be entered onto the host computer of the contractor, and a
hard copy of the audit report will be kept in the stations file in the
I/M office. The report filed with the audit results will contain enough
evidence to request an administrative hearing if necessary. Anyone
suspected of violating regulations would be targeted for additional
auditing. The DOS intends to assign officers that do not have regular
contact with a particular facility to conduct covert audits. Auditors
will receive 128 hours of training at a vocational technical college
covering rules of the program, emission failures and emission repairs.
Auditors will also be involved in acceptance testing of the program and
will receive quality assurance, quality control, and equipment training
from the contractor.
8. Improving Repair Effectiveness--The state agreed to submit a
plan to transmit information to the repair industry. The August 18
submittal stated that New Hampshire will require the contractor to
issue a quarterly newsletter to repair facilities containing national
information and tips, local program changes, training courses, common
problems, diagnostic tips, and other assistance issues.
Conditional Approval
The August 18, 1994 submittal reaffirmed New Hampshire's commitment
to submit by July 29, 1995 revisions addressing compliance via
diagnostic inspection, the inspector penalty schedule, and standards
for remote sensing technology. All three require regulation revisions.
1. Compliance via diagnostic inspections were allowed for all model
years in the original submission, but in a letter dated May 19, 1994,
the state indicated that it will establish procedures and a policy
which will allow compliance by this mechanism only on 1981 and newer
vehicles subject to IM240 tests at final cutpoints or lower.
2. The New Hampshire Enhanced I/M Rule, Section 16, does not
require imposition of substantial penalties as defined by EPA's I/M
rule (six month suspension) or equivalent retainage on the first
offense by inspectors for violations that directly affect emission
reduction benefits. In its letter to EPA dated June 28, 1994 New
Hampshire stated that Section 16 will be revised to be consistent with
the penalties required by the EPA rule.
3. The state has not established standards for the on-road testing
program. In a letter dated May 19, 1994, the state commits to develop
and submit standards to EPA.
The state has committed, in it's May 19 and June 28, 1994 letters
to submitting revisions addressing the three issues discussed above by
July 29, 1995. Section 110(k)(4) of the CAA provides that, if a state
fails to comply with its commitment, such conditional approval will
convert to a disapproval.
Other specific requirements of EPA's I/M rule and the rationale for
EPA's proposed action are explained in the NPR and will not be restated
here. No public comments were received on the NPR.
Response to Comments
On July 18, 1994 (59 FR 36408), EPA published a notice of proposed
rulemaking (NPR) for the State of New Hampshire. The NPR proposed
conditional approval, or in the alternative, disapproval of the New
Hampshire I/M SIP submitted by the State. No public comments were
received on the NPR.
Final Action
EPA is conditionally approving the New Hampshire Enhanced Vehicle
Inspection and Maintenance Program as a revision to the New Hampshire
SIP.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to a SIP shall be
considered in light of specific technical, economic, and environmental
factors and in relation to relevant statutory and regulatory
requirements.
As noted elsewhere in this document, the EPA received no comment on
the proposed action. Accordingly, the Regional Administrator has
reclassified this action from Table 1 to Table 3 under the processing
procedures published in the FR on January 19, 1989 (54 FR 2214), and
revisions to these procedures issued on October 4, 1993, in an EPA
memorandum entitled ``Changes to State Implementation Plan (SIP)
Tables.''
Regulatory Process
This action has been classified as a Table 3 action by the Regional
Administrator under the procedures published in the FR on January 19,
1989 (54 FR 2214-2225), as revised by an October 4, 1993 memorandum
from Michael H. Shapiro, Acting Assistant Administrator for Air and
Radiation. The Office of Management and Budget has exempted this action
from Executive Order 12866 review.
Under 5 U.S.C. 605(b), the Administrator certifies that SIP
approvals under sections 107, 110 and 172 of the Clean Air Act will not
have a significant economic impact on a substantial number of small
entities. SIP approvals (or redesignations) do not create any new
requirements but simply approve requirements that are already state
law. SIP approvals (or redesignations), therefore, do not add any
additional requirements for small entities. Moreover, due to the nature
of the Federal-State relationship under the Clean Air Act, preparation
of a flexibility analysis for a SIP approval would constitute Federal
inquiry into the economic reasonableness of the State actions. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. EPA., 427 U.S. 246, 96 S. Ct. 2518
(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 in the event EPA disapproves the state submittal, this disapproval
action would not have a significant impact on a substantial number of
small entities because it would not remove existing state requirements
nor does it substitute a new Federal requirement.
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 December 12, 1994. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.It has been determined that this rule is not a
``significant regulatory action'' under the terms of Executive Order
12866 and is therefore not subject to OMB review.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements.
Note: Incorporation by reference of the State Implementation
Plan for the State of New Hampshire was approved by the Director of
the Federal Register on July 1, 1982.
Dated: September 15, 1994.
John P. DeVillars,
Regional Administrator.
Part 52 of 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 EE--New Hampshire
2. Section 52.1519 is amended by adding paragraph (a)(2) to read as
follows:
Sec. 52.1519 Identification of plan--Conditional approval.
* * * * *
(a) * * *
(2) Revisions to the State Implementation Plan submitted by the New
Hampshire Air Resources Division on February 28, 1994, April 19, 1994,
April 21, 1994, August 18, 1994, and letters dated May 19, 1994 and
June 28, 1994, submitted by the New Hampshire Air Resources Division.
(i) Incorporation by reference.
(A) Letters from the New Hampshire Air Resources Division dated
February 28, 1994, April 19, 1994, April 21, 1994, and August 18, 1994.
(B) Chapter 353 of the laws of 1993, An Act establishing an
enhanced emissions inspection and maintenance program and requiring a
diesel emissions study, effective July 3, 1993.
(C) Enhanced Emissions Inspection and Maintenance Rules, New
Hampshire Department of Safety, adopted February 17, 1994, effective
January 1, 1995.
(ii) Additional materials.
(A) Nonregulatory portions of the letter with attachments from the
New Hampshire Air Resources Division dated February 28, 1994
(B) Nonregulatory portions of the letter with attachments from the
New Hampshire Air Resources Division dated April 19, 1994.
(C) Letter with attachments from the New Hampshire Air Resources
Division dated April 21, 1994.
(D) Letter from the New Hampshire Air Resources Division dated May
19, 1994.
(E) Letter with attachment from the New Hampshire Air Resources
Division dated June 28, 1994.
(F) Letter with attachments from the New Hampshire Air Resources
Division dated August 18, 1994.
[FR Doc. 94-25206 Filed 10-11-94; 8:45 am]
BILLING CODE 6560-50-F
