[Federal Register Volume 59, Number 212 (Thursday, November 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27312]
[[Page Unknown]]
[Federal Register: November 3, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[ME13-1-6645; A-1-FRL-5076-6]
Approval and Promulgation of Air Quality Implementation Plans;
Maine; Enhanced Inspection and Maintenance in Androscoggin, Cumberland,
Kennebec, Knox, Lincoln, Sagadahoc, and York Counties
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: In this action, EPA is conditionally approving a revision to
the Maine Department of Environmental Protection (DEP) State
Implementation Plan (SIP) for Inspection and Maintenance (I/M). This
SIP revision was originally submitted to EPA for approval on November
1, 1993. This submittal was supplemented by a letter from the
Commissioner of DEP dated May 26, 1994 describing additional changes
Maine is making to the I/M program, and a commitment to provide
additional material by July 22, 1994 and to address issues relating to
the low mileage waiver by specified dates. On July 21, 1994, the State
of Maine submitted a revised SIP submittal. The SIP revision includes
Chapter 128 of an amended State rule entitled ``Motor Vehicle Emission
Inspection Program,'' and additional supporting material including
authorizing legislation, administrative items, and a description of the
program being implemented.
EPA is conditionally approving the SIP revision on I/M, under
section 110(k)(4) of the CAA, based on commitments made by Maine in its
May 26, 1994 letter and reiterated in the July 21, 1994 submittal.
Maine's commitments pertain to the ``low mileage'' waiver described in
III.F below as well as the owner-performed repair issue described in
III.J below. Section 110(k)(4) provides that, if a state fails to
comply with its commitments by a date certain, but no later than one
year after EPA approval, EPA's conditional approval will convert to a
disapproval. The content of the May 26, 1994 letter, and the July 21,
1994 revised SIP submission are described in detail in this notice.
EFFECTIVE DATE: This final rule is effective on December 5, 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, Region I, 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; and the Bureau of Air Quality Control, Department of
Environmental Protection, 71 Hospital Street, Augusta, ME 04333.
FOR FURTHER INFORMATION CONTACT: Robert C. Judge, (617) 565-3233.
SUPPLEMENTARY INFORMATION: On July 8, 1994 (59 FR 35072), EPA published
a notice of proposed rulemaking (NPR) for the State of Maine. The NPR
proposed conditional approval or, in the alternative, disapproval of
Maine's enhanced inspection and maintenance program in Androscoggin,
Cumberland, Kennebec, Knox, Lincoln, Sagadahoc, and York Counties. This
SIP revision was originally submitted to EPA for approval on November
1, 1993.
This submittal was supplemented by a letter from the Commissioner
of DEP dated May 26, 1994 describing additional changes Maine is making
to the I/M program, and a commitment to provide additional material by
July 22, 1994 and to address issues relating to the low mileage waiver
by specified dates. On July 21, 1994, the State of Maine submitted a
revised SIP submittal.
Specific requirements of EPA's I/M regulations and the rationale
for EPA's proposed action were explained in the NPR and will not be
restated here. This rulemaking explains how the State fulfilled the
requirements articulated in the May 26, 1994 letter from DEP as they
were described in the NPR. While no public comments were received on
this NPR, substantial public comments were received on a related NPR
published on June 23, 1994 (59 FR 32390). In that package, EPA proposed
approval of a voluntary I/M program in Kennebec, Knox, Lincoln and
Sagadahoc counties, without evaluating whether or not it met any
requirements of the federal I/M rule. One hundred seventy-four comment
letters were received on that package. Comments centered on a potential
emissions trade, which would have allowed nitrogen oxide emission
reductions from the I/M program, not reqired by federal law, to be
traded to promote industrial growth. Though it was reported by the
local media as such, the NPR did not propose approval of an emissions
trade. In addition, while many supported I/M, some of the commenters
questioned the need for I/M in Maine. Each of the letters which had a
return address was responded to in writing individually from Region 1's
Air Director, with the exception of comments received from the Natural
Resources Council of Maine and the American Lung Association of Maine.
A summary of all these comments, and EPA's response is included in
section IV of this document. Again, no comments were received on the
July 8, 1994 NPR to which this final action specifically pertains.
The I/M SIP includes Chapter 128 of an amended State rule entitled
``Motor Vehicle Emission Inspection Program,'' and additional
supporting material including authorizing legislation, administrative
items, and a description of the program being implemented. Maine
submitted this SIP revision request to the EPA to satisfy the
requirements of sections 182(b)(4) and 184(b)(1)(A) of the Clean Air
Act, and the federal I/M rule codified at 40 CFR part 51, subpart S.
This SIP revision will require vehicle owners to comply with the Maine
I/M program in the seven moderate ozone nonattainment counties in
Maine. This revision applies to the Maine counties of Androscoggin,
Cumberland, Kennebec, Knox, Lincoln, Sagadahoc, and York. At the time
the NPR was prepared, the State was proposing revisions to its I/M
regulations and was undergoing rulemaking action to address outstanding
deficiencies in the rules submitted as part of the November 1, 1993 SIP
revision. The July 21, 1994 submittal includes those revised adopted
rules and a detailed narrative description of the program. EPA is
taking final action to conditionally approve the program because the
state has met the requirements of the I/M rule except for the items
which provide the basis for the conditional approval.
The NPR stated that the only outstanding issue which could not be
resolved in time for the July 21, 1994 submission (and which therefore
formed the basis of the conditional approval) was the ``low mileage''
waiver (LMW). Conditional approval for the LMW issue is necessary
because the number of vehicles to be granted low mileage exemptions is
uncertain and EPA is concerned that the use of LMWs may result in the
State's failing to meet the minimum enhanced I/M performance standard
in actual practice. Coincident with EPA's processing of the NPR,
however, Maine adopted a change to the regulation that is inconsistent
with the federal I/M rule. Specifically, Maine allowed for owner-
performed repairs for select emission control devices for 1980 and
newer vehicles to count toward the minimum waiver expenditure provided
by section 51.360 of the federal I/M rule. Section 51.360 does not
allow the cost of parts for these newer vehicles to count toward the
waiver limit. However, the state committed in its May 26, 1994 letter
and reiterated in the July 21, 1994 submittal that it would issue
waivers only when the requirements of EPA's waiver requirements are
met. EPA construes this as a commitment to adopt the necessary
corrective measures which in turn provides an additional basis for the
conditional approval proposed in the July 8, 1994 NPR. EPA believes
this deviation in the area of owner-performed repairs, referred to
herein as the ``OPR issue,'' provides an additional basis for the
conditional approval proposed in the July 8, 1994 NPR. Such conditional
approval is appropriate because of the State's commitment to meet all
of EPA's waiver requirements in its May 26, 1994 letter and in the July
21, 1994 submittal.
By proposing conditional approval on this action, EPA is agreeing
to defer final, full approval on the revised SIP until the State has
conducted a study of the impact of the LMW on the I/M program's
emission reductions. The May 26, 1994 letter and the July 21, 1994
submittal commit to completing this evaluation no later than January
31, 1995. It should be noted that the State's authorizing legislation
currently sets a deadline of January 15, 1996 for completion of this
evaluation, and the State's commitment to complete the report by
January 31, 1995 represents a significantly expedited schedule. In the
event that the above evaluation shows that the State's use of LMWs
causes it to fall short of the enhanced I/M performance standard in
actual practice, the State has further committed to securing the
necessary legal and regulatory changes to eliminate LMWs in time to
submit a corrected I/M SIP no later than September 1, 1995. To fulfill
its commitment to meet all requirements of 40 CFR 51.360 Maine must
also make the necessary regulatory changes to address the OPR issue no
later than September 1, 1995. Should the State fail to meet the above
commitments, the conditional approval will convert to a disapproval.
I. Clean Air Act Requirements
Background
Maine is part of the Ozone Transport Region (OTR). Section
184(b)(1)(A) of the Clean Air Act (CAA) requires areas of the OTR
defined in EPA's final I/M rule (57 FR 52950, November 5, 1992) to
adopt and implement an inspection and maintenance program meeting EPA's
enhanced I/M performance standard. In addition, the I/M rule requires
that all moderate ozone nonattainment areas containing urbanized areas
must implement a program meeting the basic I/M performance standard.
Maine is affected by these provisions in some areas of the State.
Specifically, under EPA's I/M rule, enhanced I/M programs are required
in the Portland area, and the Maine portion of the Portsmouth, New
Hampshire area. Basic I/M would be required in the Lewiston-Auburn
area. This program is being submitted to fulfill Maine's obligations to
implement basic and enhanced I/M. Enhanced I/M is a more stringent
program and includes all of the required components of basic I/M.
EPA has reviewed the November 1, 1993, May 26, 1994 and July 21,
1994 State submittals against the requirements of the Act and EPA's
final I/M rule. A summary of EPA's analysis is provided below.
II. I/M Regulation General SIP Submittal Requirements
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 that includes all necessary legal authority and the items
specified in 40 CFR 51.350 through 51.373.
III. State Submittal
On November 1, 1993, May 26, 1994, and July 21, 1994, the State of
Maine submitted various elements which, taken together, constitute an
I/M SIP revision for seven ozone nonattainment counties classified as
moderate or above. A public hearing for the November 1, 1993 submittal
was held on October 26, 1992. As stated in the May 26, 1994 letter from
the DEP, a public hearing also was held on May 25, 1994. The amended
rules submitted on July 21, 1994, were effective on June 28, 1994. EPA
submitted comments during both of those hearings. In addition, EPA has
worked closely with the DEP to ensure that the I/M program meets EPA
requirements identified in the I/M rule.
The I/M SIP submittal provides for the implementation of enhanced
I/M in the Maine counties of Androscoggin, Cumberland, Kennebec, Knox,
Lincoln, Sagadahoc, and York beginning on July 1, 1994. Maine will be
implementing a biennial, test-only I/M program. With the changes the
State made in its July 21, 1994 submittal, the program will meet the
requirements of EPA's performance standard and other requirements
contained in the federal I/M rule, in the above-listed counties.
Testing will be overseen by the DEP and implemented by an I/M
contractor. Other aspects of the Maine I/M program include: transient
testing of 1968 and later light duty vehicles and trucks and heavy duty
trucks (although only the testing of 1981 and newer vehicles is
considered in evaluating whether the enhanced performance standard is
met), evaporative emission testing for specified model year vehicles, a
test fee to ensure adequate resources to implement the program,
enforcement by registration suspension, a repair effectiveness program,
requirements for testing convenience, quality assurance, data
collection, minimum expenditures prior to time extensions and hardship
waivers, reporting, test equipment and test procedure specifications,
public information and consumer protection, inspector training and
certification, penalties based on inspector incompetence, an on-road
testing program, and emission recall enforcement. A section-by-section
analysis of the federal I/M rule, Maine's demonstration of how the I/M
program meets the federal SIP requirements, as well as the changes to
the Maine I/M program as submitted on July 21, 1994, is provided below.
A. Applicability
The SIP describes in detail the areas subject to the enhanced I/M
SIP revision and, consistent with 40 CFR 51.372, includes the legal
authority necessary to establish program boundaries.
The Maine I/M regulations and authorizing legislation specify that
the enhanced I/M program be implemented in the counties described
above. The Maine I/M program is being implemented in areas beyond those
required by the Clean Air Act and EPA's rule. Maine is implementing the
enhanced I/M program throughout its moderate ozone nonattainment areas,
in part, to meet requirements of Section 182(b)(1)(A) of the CAA that
requires reasonable further progress (RFP). EPA intended to take
separate rulemaking action on the portion of the Maine submittal
expanding the geographical scope of the I/M program to counties not
otherwise required to adopt I/M. Those counties include Kennebec, Knox,
Lincoln, and Sagadahoc. Although these areas are not required to
implement enhanced or basic I/M, the State of Maine had requested
expedited approval for those areas in order to make the resultant
emission reductions federally enforceable. Therefore, EPA moved forward
to approve I/M in these areas as strengthening the SIP in Knox,
Kennebec, Lincoln, and Sagadahoc Counties. EPA proposed separate action
on that optional I/M program in the event that EPA took final action
disapproving this SIP. However, by this action, Maine's I/M program is
conditionally approved and the revised SIP requirements will apply to
all I/M areas including the optional areas. Once Maine has fulfilled
its commitments regarding the ``low mileage'' waiver and the owner-
performed repair issues, EPA will withdraw the separate rulemaking
action approving the optional I/M program since that action would be
superseded by such final (unconditional) approval in the context of
this rulemaking.
B. Enhanced I/M Performance Standard
Today's proposal discusses the I/M program designed, in part, to
meet the enhanced I/M performance standard for ozone precursors causing
air quality problems in Maine. Maine's program was designed to meet the
performance standard for volatile organic compounds (VOC) and nitrogen
oxides (NOX). EPA's performance standard establishes an emission
reduction target that must be met by a program in order for the SIP to
be approvable. The program, as documented in the SIP, must meet the
performance standard in actual operation, with provisions for
appropriate adjustments if the standard is not met.
The State submitted a modeling demonstration using the EPA computer
model, MOBILE5a, showing that the enhanced performance standard will be
met in the area. The impact of the allowed program exemptions (for
example, street rods and stock race cars) has been incorporated into
the estimate of the program's effectiveness. In addition, in its May
26, 1994 and July 21, 1994 submittals, the DEP provided a commitment to
maintain the level of compliance and waivers assumed in the modeling.
The DEP also provided additional detail on this modeling effort,
including justification for the modeling inputs assumed in the revised
submittal. The effect of the ``low mileage'' waiver (LMW) was not
evaluated in this modeling effort. One reason this action is a
conditional approval is to allow the State to demonstrate that the
effect of the LMW is negligible, or to fulfill its commitment to make
necessary legislative and regulatory changes if such LMW affects the
ability of the State to meet the performance standard.
C. Network Type and Program Evaluation
Under the Act and EPA's I/M rule the SIP must include a description
of the network to be employed, the required legal authority, and, in
the case of areas making claims for case-by-case equivalency, the
required demonstration. Also, for enhanced I/M areas, the SIP needs to
include a description of the evaluation schedule and protocol, the
sampling methodology, the data collection and analysis system, the
resources and personnel for evaluation and related details of the
evaluation program, as well as the legal authority establishing the
evaluation program.
Maine has chosen to implement a test-only I/M network program
design utilizing contractors to implement the inspection portion of the
program. The State has chosen not to make a demonstration for case-by-
case equivalency for a different network design, and has provided
evidence that precludes conflicts of interest by the contractor, as
described in the ``test-only'' requirements in the I/M rule. In its
July 21, 1994 letter, the Maine DEP states, in its SIP revision
narrative, that it will institute a continuous ongoing evaluation
program consistent with the federal I/M rule. The results of the
evaluation program will be reported to EPA on a biennial basis (40 CFR
51.353). In addition, Maine commits to developing and submitting the
annual reports described by 40 CFR 51.366. Legal authority, already
contained in Maine state law, authorizes the DEP to implement this
contractor operated, test-only program and conduct the program
evaluation, as necessary, to implement I/M consistent with federal
requirements.
D. Adequate Tools and Resources
Under the Act and EPA's I/M rule, the SIP must include a
description of the resources that will be used for program operation
and must discuss how the performance standard will be met, including:
(1) A detailed budget plan describing the source of funds for
personnel, program administration, program enforcement, purchase of
necessary equipment (such as vehicles for undercover audits), and for
other requirements discussed throughout the I/M rule, for the period
prior to the next biennial self-evaluation required by the federal I/M
rule, and (2) a description of personnel resources, the number of
personnel dedicated to overt and covert auditing, data analysis,
program administration, enforcement, and other necessary functions, and
the training attendant to each function.
The current Maine legislation was effective July 12, 1993. The
legislation authorizes the DEP to collect a fee from the I/M
contractors to cover the costs of administrating, overseeing, and
enforcing the I/M program, and provides for allocation of certain
highway funds for implementation. As Maine committed in the May 28,
1994 letter, the July 21, 1994 submittal includes additional detail on
the funding and description of resources to be used for implementation
of the enhanced I/M program. This narrative describes the budget,
staffing support, and equipment needed to implement the program. The
revised regulations provide between a $2.00 and $4.00 fee per
inspection to be used to administer the program.
E. Test Frequency and Convenience
Under EPA's I/M rule, the SIP must include a detailed test
schedule, including the test year selection scheme if testing is other
than annual. The SIP must also include the legal authority necessary to
implement and enforce the test frequency requirement and explain how
the test frequency will be integrated with the enforcement process. In
addition, in enhanced I/M programs, the SIP needs to demonstrate that
the network of stations providing testing services is sufficient to
ensure consumer convenience by providing short waiting times to get a
test, and short driving distances to get to the test center.
The Maine SIP revision requires biennial inspections for all
subject motor vehicles that are at least two years old. The inspections
will be conducted on odd or even years corresponding to the model year
of the vehicle and timed with the registration process. This is
described in more detail in the July 21, 1994 submittal. The authority
for enforcing the testing frequency is contained in the revised Maine
I/M rule. Short waiting times and short driving distances relating to
network design are addressed in the contract between the State and its
contractor, and in the Maine rules. The contract requires an average
waiting time of 15 minutes or less per test (except for 7 days per
month) and inspection facility locations which ensure that 85% of the
vehicle population is within a fifteen mile drive of each facility.
F. Vehicle Coverage
Under EPA's I/M rule, the SIP must include a detailed description
of the number and types of vehicles to be covered by the program, and a
plan for identifying subject vehicles, including vehicles that are
routinely operated in the area but may not be registered in the area.
Also, the SIP must include a description of any special exemptions
which will be granted by the program, and an estimate of the percentage
and number of vehicles granted such exemptions. Such exemptions need to
be accounted for in the emission reduction analysis. In addition, the
SIP needs to include the legal authority necessary to implement and
enforce the vehicle coverage requirement.
Maine's I/M program covers all 1968 and newer model year gasoline
powered light-duty vehicles and light-duty and heavy-duty trucks,
registered, or required to be registered, within the nonattainment
areas (only the testing of 1981 and newer vehicles is considered in
evaluating whether the enhanced performance standard is met). Vehicles
will be identified through the State Department of Transportation
vehicle registration database. Special classes, which are exempt from
the emission testing program, include vehicles weighing more than
10,000 pounds (GVWR), street rods, stock race cars, and motorcycles.
Based on information provided by the State, Maine has shown that such
exemptions will not prevent the program from achieving the performance
standard. Additional detail supporting this conclusion was submitted by
the State on July 21, 1994. Legal authority for the vehicle coverage
requirement is contained in the Maine I/M rule and the July, 1993
authorizing legislation. The revised rules submitted by Maine on July
21, 1994 include a low-mileage waiver (LMW) which exempts vehicles
driven less than 5000 miles per year. The authorizing legislation
requires the LMW and also requires that the DEP prepare a report on its
effect on Maine's ability to meet the performance standard. The May 26,
1994 letter and the July 21, 1994 submittal from the DEP commit to
provide the legislature with this information by January 31, 1995, and
to secure revised legislation if the data shows that Maine cannot
achieve the performance standard required by EPA's I/M rule. If
necessary, the DEP also commits to revising its regulation by June 1,
1995, to hold a public hearing on necessary regulatory changes, and to
submit to EPA a revised SIP submittal removing the LMW by September 1,
1995. At present, there is inadequate information for EPA to determine
how this waiver will affect the performance standard. For this reason,
EPA is conditionally approving the submission based on the above-
referenced commitments by DEP. Failure to meet any of these dates will
result in EPA disapproval of this action, unless the EPA Regional
Administrator approves a later date in writing no later than the date
of the applicable milestone. Under no circumstances will the September
1, 1995 date for final submittal be revised.
G. Test Procedures and Standards
Under EPA's I/M rule, the SIP must include a description of each
test procedure used. The SIP also must include the rule, ordinance or
law describing and establishing the test procedures.
The Maine I/M SIP revision obligates the State to perform transient
exhaust emission testing using the IM240 driving cycle. In addition,
the State of Maine has stated that it will follow procedures in
accordance with EPA's guidance document entitled, ``High-Tech I/M Test
Procedures, Emission Standards, Quality Control Requirements, and
Equipment Specifications.'' The State will be requiring IM240 tests on
1968 and later model year vehicles in the area. This model year
coverage complies with EPA's I/M regulation. In addition, the State of
Maine will require evaporative emission testing of fuel system
integrity and functionality for 1981 and newer vehicles. The test
procedures are set forth with specificity in the I/M Request For
Proposal (RFP) which the Maine I/M contractor is required to abide by.
In approving this action, EPA expects Maine to amend these procedures
to ensure that the latest EPA procedures will be used in the program,
if the EPA guidance is revised in the future.
H. Test Equipment
Under EPA's I/M rule, the SIP must include written technical
specifications for all test equipment used in the program and address
each of the requirements set forth at 40 CFR 51.358. The specifications
must describe the emission analysis process, the necessary test
equipment, the required features, and written acceptance testing
criteria and procedures.
In its July 21, 1994 submission, Maine provided written equipment
specifications as contained in EPA's IM240 Guidance and the appendices
of EPA's I/M rule. The Maine SIP submissions and their appendices
address the requirements in 40 CFR 51.358 and include descriptions of
performance features and functional characteristics of the computerized
test systems. The necessary test equipment, required features, and
acceptance testing criteria are mandated by the RFP and contract.
I. Quality Control
Under EPA's I/M rule, the SIP must include a description of quality
control and recordkeeping procedures. The SIP also must include the
procedures manual, rule, and ordinance or law describing and
establishing quality control procedures and requirements.
The Maine I/M SIP narrative, the RFP, and the contract included as
part of the Maine July 21, 1994 submittal contain descriptions and
requirements establishing the quality control procedures described in
accordance with the federal I/M rule and are consistent with EPA
guidance. These requirements will help ensure that equipment
calibrations are properly performed and recorded and that the necessary
compliance document security is maintained. The Maine SIP complies with
all specifications for quality control set forth in Sec. 51.359 and
appendix A of the federal I/M rule, and EPA's technical guidance.
J. Waivers and Compliance Via Diagnostic Inspection
Under EPA's I/M rule the SIP must include a maximum waiver rate
expressed as a percentage of initially failed vehicles. This waiver
rate is used for estimating emission reduction benefits in the modeling
analysis. Corrective action must be taken if the waiver rate exceeds
that estimated in the SIP, or the state must revise the SIP and claim
emission reductions accordingly. The SIP also must describe the waiver
criteria and procedures, including cost limits, quality assurance
methods and measures, and administration. Lastly, the SIP must include
the necessary legal authority, ordinance(s), or rules to issue waivers,
set and adjust cost limits as required, and carry out any other
functions necessary to administer the waiver system, including
enforcement of the waiver provisions.
Cost limits for the minimum expenditure waivers must be in
accordance with the CAA and federal I/M rule. Expenditures for repairs
of at least $450, adjusted annually for the consumer price index (CPI),
must be spent in order to qualify for a waiver in the enhanced I/M
program. Maine has demonstrated that it can meet the enhanced I/M
performance standard testing only 1981 and newer vehicles. In addition,
Maine is requiring I/M on vehicles as old as 1968 model year. These
vehicles will not be included as part of the ``enhanced I/M'' program,
despite being subject to the same type of exhaust emission testing
because the state does not require such vehicles to meet the $450
waiver minimum. Nevertheless, the testing of these additional vehicles
will achieve additional emission reductions which will be used, in
part, as a means of achieving additional emission reductions required
for Reasonable Further Progress, and anticipated by Maine to be
necessary for attainment. Accordingly, these older vehicles will be
subject to a lower waiver expenditure of $125, adjusted for CPI, prior
to receiving a waiver.
The Maine program includes a waiver rate of 3% of initially failed
vehicles, Model Year 1981 and newer. This waiver rate is used in the
modeling demonstration. The DEP has committed in the July 21, 1994
submittal, that if the waiver rate is higher than estimated as
determined by its program reports, the State will take corrective
action to address the deficiency. Furthermore, the SIP describes the
three types of waivers the State will allow including: a minimum
expenditure, a time extension, and a one-time hardship waiver
provisions. These issues are dealt with in a manner consistent with the
federal I/M rule. The proper criteria, procedures, quality assurance
and administration regarding the issuance of waivers, consistent with
EPA's I/M rule, will be ensured by the DEP and its contractors and are
detailed in the SIP narrative, submitted on July 21, 1994.
One portion of the revised Maine rule represents a deviation from
the requirements of EPA's final rule (57 FR 52950). This provision
allows for owner-performed repairs for select emission control devices
(specifically, the catalytic converter, exhaust pipes and hardware,
fuel filler cap, PCV valve, thermostatic air cleaner, and air pump) for
1980 and newer vehicles to count toward the minimum waiver expenditure
set forth in section 51.360 of the federal I/M rule. However, as
mentioned above, section 51.360 also requires that the State commit to
maintaining a maximum level of waivers in this program. The State has
committed to a 3 percent waiver limit, and to taking necessary steps to
ensure that this rate is not exceeded. It is the level of waivers that
greatly affects the level of emission reductions achieved from the
program. Maine's deviation in the area of owner-performed repairs is
very narrow since the list of emission control devices for which costs
can count toward the waiver is expressly limited. Based on these
considerations and the State's commitment to ensuring an allowable
maximum waiver rate, EPA believes that a specified and clearly limited
deviation from the federal I/M rule in the area of owner-performed
repairs will not significantly affect the level of reductions achieved
from the I/M program.
The State committed in its May 26, 1994 letter, reiterated in the
July 21, 1994 submittal, that Maine would issue waivers only when the
requirements of EPA's waiver requirements were met. In its May 26, 1994
letter, the State committed to amend the SIP to not allow owner repair
costs to count toward the $450 waiver amount for 1980 and later model
year vehicles. The July 21, 1994 submittal stated that Maine would
issue waivers ``only when the requirements of 40 CFR 51.360 are met.''
EPA construes this as a commitment to adopt the necessary corrective
measures, which in turn provides an additional basis for the
conditional approval proposed in the July 8, 1994 NPR. EPA has
commented previously on the waiver provisions, including the OPR issue
and the NPR proposed a conditional approval so that public notice on
these issues was sufficient. For these reasons, EPA is conditionally
approving this SIP revision. Accordingly, this notice requires the DEP
to revise its regulation by June 1, 1995, to hold a public hearing on
necessary regulatory changes, and to submit to EPA a revised SIP
submittal removing the OPR waiver allowance for 1980 and newer cars by
September 1, 1995. Of course, the State's failure to meet any of these
dates will result in EPA disapproval of this action, unless the EPA
Regional Administrator approves a later date in writing no later than
the date of the applicable milestone. The September 1, 1995 date for
final submittal will not be revised under any circumstances.
K. Motorist Compliance Enforcement
Under EPA's I/M rule, the SIP must provide information concerning
motorist enforcement, including: (1) A description of the existing
compliance mechanism if it will continue to be used for this program,
and the demonstration that it is as effective or more effective than
registration-denial enforcement; (2) an identification of the agencies
responsible for performing each of the applicable activities in this
section; (3) a description of, and accounting for, all classes of
exempt vehicles; and (4) a description of the plan for testing fleet
vehicles, rental car fleets, leased vehicles, and any other special
classes of subject vehicles, such as those operated (but not
necessarily registered) in the program area. Also, the SIP must include
a determination of the current compliance rate based on a study of the
system including an estimate of compliance losses due to loopholes,
counterfeiting, and unregistered vehicles. Estimates of the effect of
closing such loopholes and otherwise improving the enforcement
mechanism must be supported with detailed analyses. In addition, the
SIP needs to include the legal authority to implement and enforce the
program. Lastly, the SIP must include a commitment to an enforcement
level and minimum compliance level used for modeling purposes and to be
maintained, at a minimum, in practice.
The State of Maine has chosen to use a program of registration
suspension whereby subsequent registration is denied to anyone who
fails to meet emission testing requirements. The motorist compliance
enforcement program will be implemented primarily by the Maine Bureau
of Motor Vehicles (BMV). The enforcement strategy is described in
Maine's July 21, 1994 submittal. The enforcement strategy is designed
to ensure a 90 percent compliance rate for all vehicles within 4 months
of the compliance deadline. As described in the July 21, 1994
submittal, this will be accomplished by a computer matching program
that will identify registered vehicles tested prior to registration, as
well as those receiving their emission inspection within a 60 day
period after registering. Those not receiving the emissions test will
be notified of such failure, and put on notice that their registration
will be suspended if they do not comply. Those that still fail to
comply will either receive a summons to appear in court, or be subject
to confiscation of their license plate by BMV personnel who would
physically remove the plate from the vehicle. In addition, the Maine
legislation authorizing I/M provides that vehicles operating with a
suspended registration must be fined at least $450 for 1981 model year
or newer vehicles, or $125, for older than 1981 model year vehicles.
The only classes of vehicles exempt from the I/M program are
described above under vehicle coverage. Fleet vehicles, rental car
fleets, and leased vehicles will be required to meet the same program
requirements as all other vehicles that receive annual registration.
The compliance rate for the program was estimated at 96%. The legal
authority to implement and enforce the program is included in the Maine
law and in DEP and BMV rules as supplied on July 21, 1994.
L. Motorist Compliance Enforcement Program Oversight
Under EPA's I/M rule, the SIP must include a description of
enforcement program oversight and information management activities.
The Maine I/M SIP revision provides for regular auditing of its
enforcement program and adherence to effective management practices,
including adjustments to improve the program when necessary. These
program oversight and information management activities were described
in the July 21, 1994 SIP narrative, and include: establishing
procedures for personnel engaged in I/M document handling and
processing, supporting a communications network for the State's
oversight and management requirements, and establishing an I/M database
to compare to the registration database for purposes of determining
program effectiveness. In addition, the SIP describes the procedures to
be followed in identifying noncomplying vehicles, timeframes for
confiscation of suspended vehicle registration certificates and plates,
timeframes for issuing summonses to appear in court, and the associated
fines for failure to comply.
M. Quality Assurance
Under EPA's I/M rule, the SIP must include a description of the
quality assurance program, and written procedure manuals covering both
overt and covert performance audits, record audits, and equipment
audits.
The July 21, 1994 submittal from Maine includes a description of
the quality assurance program. According to that submittal, the program
will include operation and progress reports and overt and covert audits
of all emission inspectors and emission inspection facilities to be
conducted by the DEP. Written procedures and techniques for overt and
covert performance, record, and equipment audits will be prepared and
provided to auditors and updated as needed. The July 21, 1994
submission also includes a commitment to conduct a minimum of two (2)
covert audits per lane per year.
N. Enforcement Against Contractors, Stations and Inspectors
Under EPA's I/M rule, the SIP must include a penalty schedule and
legal authority for establishing and imposing penalties, civil fines,
station and inspector license suspension, and revocations. In the case
of state constitutional impediments precluding immediate authority to
suspend licenses, the state Attorney General shall furnish an official
opinion within the SIP explaining the constitutional impediment as well
as relevant case law. The SIP also must describe the administrative and
judicial procedures and responsibilities relevant to the enforcement
process, including the agencies, courts, and jurisdictions involved,
personnel to prosecute and adjudicate cases, and other aspects of the
enforcement of the program requirements, the resources to be allocated
to the enforcement function, and the source of those funds. In states
that are without immediate suspension authority, the SIP must
demonstrate that sufficient resources, personnel, and systems are in
place to meet the three-day case management requirement for violations
that directly affect emission reductions.
The Maine I/M SIP revision includes specific penalties in its
enforcement against contractors, stations and inspectors in accordance
with the federal I/M rule. Based on its SIP submittal dated July 21,
1994, the State's enforcement procedures can be pursued through
contractual or regulatory action. The DEP has the authority to
immediately suspend a station inspector for violations that directly
affect emission reduction benefits. Authority for establishing and
imposing penalties, civil fines, license suspension, and revocations
are contained in the contract. The DEP is planning to assign employees
to covert and overt auditing and commit additional resources required
for enforcement oversight. These audits and oversight functions will be
funded by the inspection fee.
O. Data Analysis and Reporting
Under EPA's I/M rule, the SIP must describe the types of data to be
collected.
The Maine I/M SIP provides for collecting test data to link
specific test results to specific vehicles, I/M program registrants,
test sites, and inspectors. The SIP lists the specific types of test
data and quality control data which will be collected. As outlined
above and described in the May 26, 1994 and July 21, 1994 submittals,
the data will be used to generate reports concerning test data, quality
assurance, quality control, enforcement, as well as necessary changes
and identified weaknesses in the program. The state has also committed
to collecting all data necessary for the quality assurance and
enforcement reports, as required by 51.366 of the federal I/M rule.
P. Inspector Training and Licensing or Certification
Under EPA's I/M rule, the SIP must include a description of the
training program, the written and hands-on tests, and the licensing or
certification process.
The May 26, 1994 and July 21, 1994 submittals from the DEP provide
detail on the inspector training program. The Maine I/M SIP provides
for implementation of training, licensing, and refresher programs for
emission inspectors. The SIP describes the program and curriculum
including written and hands-on testing at least once every two years.
All inspectors will be required to be licensed to inspect vehicles in
the Maine I/M program.
Q. Improving Repair Effectiveness
Under EPA's I/M rule, the SIP must include a description of the
technical assistance program to be implemented, a description of the
procedures and criteria to be used in meeting the performance
monitoring requirements of this section for enhanced I/M programs, and
a description of the repair technician training resources available in
the community.
In the July 21, 1994 submittal, Maine provided additional detail
and a description of the technical assistance, performance monitoring
and repair technician training programs to be implemented. The SIP
revision provides for regularly informing repair facilities about
changes to the inspection program, training course schedules, common
problems, and potential solutions for particular engine families,
diagnostic tips, repairs, and other assistance issues. As described in
the July 21, 1994 submittal, the DEP has also ensured that a repair
technician hotline be available for repair technicians, and issued a
contract to accomplish this. Performance monitoring statistics of
repair facilities will be provided to motorists whose vehicles fail the
I/M tests in enhanced I/M areas. The State has committed to ensure that
adequate repair technician training exists by establishing training
courses at technical schools in the area, and has secured necessary
funding under the Intermodal Surface Transportation Efficiency Act.
Further, the SIP includes a detailed public information and consumer
protection plan consistent with the requirements of EPA's I/M Rule at
Sec. 51.368.
R. Compliance With Recall Notices
Under EPA's I/M rule, the SIP must describe, for enhanced I/M
programs, the procedures used to incorporate the vehicle recall lists
provided into the inspection or registration database, the quality
control methods used to ensure that recall repairs are properly
documented and tracked, and the method (inspection failure or
registration denial) used to enforce the recall requirements.
The revised Maine I/M SIP ensures that vehicles subject to the
enhanced I/M program that are included in either a voluntary emission
recall or a remedial plan determination pursuant to the CAA have had
the appropriate repairs made prior to the inspection. The contractor
will identify vehicles that have not completed recall repairs through
an electronic database, updated on a quarterly basis. Motorists with
unresolved recall notices will be required to show proof of compliance
or will be denied the opportunity for inspection. The revised rules of
June 28, 1994 address this issue, and were submitted on July 21, 1994.
S. On-road Testing
Under the Act and EPA's I/M rule, the SIP must include a detailed
description of the on-road testing program required in enhanced I/M
areas, including the types of testing, test limits and criteria, the
number of vehicles (the percentage of the fleet) to be tested, the
number of employees to be dedicated to the on-road testing effort, the
methods for collecting, analyzing, utilizing, and reporting the results
of on-road testing and, the portion of the program budget to be
dedicated to on-road testing. Also, the SIP must include the legal
authority necessary to implement the on-road testing program, including
the authority to enforce off-cycle inspection and repair requirements.
In addition, emission reduction credit for on-road testing programs can
only be granted for a program designed to obtain significant emission
reductions over and above those predicted to be achieved by other
aspects of the I/M program. The SIP needs to include technical support
for the claimed additional emission reductions.
The I/M SIP submitted on July 21, 1994 includes a detailed
description of its on-road testing program. The testing program will
include 0.5% of the subject vehicles. Vehicles with emission readings
measured by remote sensing devices exceeding limits defined in the
revised rules will be required to obtain an out-of-cycle inspection at
a vehicle emission inspection facility. This program will be staffed by
the DEP. Data collection and reporting will be done using the general
record-keeping and reporting provisions of the I/M program. The legal
authority for this program is contained in the Maine I/M rule and the
authorizing legislation. The State did not include additional modeling
credit for this portion of the program as part of the modeling used to
demonstrate that EPA's performance standard was met.
T. Concluding Statement
A more detailed analysis of the State's submittal and how it meets
the federal requirements is contained in the EPA's technical support
document prepared for this action. The TSD is available from the EPA
New England Regional office listed above. The criteria used to review
the submitted SIP revision are based on the requirements set forth in
Section 182 of the CAA and in the federal I/M regulations. Based on
these requirements, EPA developed a detailed I/M approvability
checklist to be used nationally to determine if I/M programs meet the
requirements of the CAA and the federal I/M rule. The checklist states
the federal requirements, referenced by section of the rule, whether or
not the Maine program meets such requirements, and where in the Maine
SIP submittal the requirements are met. This checklist, the CAA, and
the federal I/M regulation formed the basis for EPA's technical review.
EPA has reviewed the Maine I/M SIP revision submitted to the EPA using
the criteria stated above. The Maine regulations and accompanying
materials contained in the SIP submittals from the State represent an
acceptable plan to comply with the I/M requirements and meet all the
criteria required for EPA to conditionally approve the SIP.
Due to recent, well-publicized criticism of initial I/M testing in
Maine, an agreement appears to have been reached between
representatives of the Governor's Office, the Maine Legislature, the
DEP, and Systems Control, Maine's I/M contractor. The agreement calls
for a suspension of mandatory vehicle testing until March, 1995 so that
improvements can be made to ensure a fair and equitable program. Since
EPA's I/M rule permits the phase-in of emissions testing in areas
implementing new test-only programs (See 40 CFR 51.373(c)(2)), the
agreement in no way precludes EPA from conditionally approving the
Maine I/M SIP as set forth in this notice.
IV. Response to Comments
While no public comments were received on this NPR, substantial
public comments were received on a related NPR published on June 23,
1994 (59 FR 32390). That package proposed approval of an I/M program in
Kennebec, Knox, Lincoln and Sagadahoc, with no judgement as to whether
or not it met any requirements of the federal I/M rule. One hundred
seventy-four comment letters were received on that package. Comments
centered on a proposed trade which would have allowed nitrogen oxide
emission reductions not required by federal law from the I/M program to
be traded to promote industrial growth. Though it was reported by local
media as such, EPA's notice did not propose to approve such a trade. In
addition, while many commenters supported I/M, some questioned the need
for I/M in Maine. The Maine Lung Association commented in support of
expanding the program to the four optional counties. Each of the
letters which had a return address were responded to in writing
individually from Region l's Air Director, with the exception of the
Natural Resources Council of Maine and the American Lung Association of
Maine. A summary of these comments, and EPA's response is included in
this package. No comments were received on the July 8, 1994 NPR to
which this final action specifically pertains.
The Natural Resources Council of Maine and the American Lung
Association of Maine commented the EPA should wait to approve the use
of NOX credits for trading purposes until an attainment
demonstration has been submitted by the state and approved by EPA. This
would allow both parties to determine if any credits generated by
expanding the program area were surplus and available for trading to
meeting offset requirements. Surplus credits are credits beyond those
mandated by CAA requirements and necessary for attainment or Reasonable
Further Progress. EPA agrees with this comment and will continue to
work with the state of Maine to ensure that any credits generated by
the I/M program used to meet offset requirements are surplus credits.
Final Action
EPA is conditionally approving the Maine I/M program submitted by
the State, on November 1, 1993, May 26, 1994, and July 21, 1994.
Pursuant to section 110(k)(4) of the CAA, EPA is conditionally
approving Maine's submission based on the commitments of the DEP.
Specifically, by January 31, 1995 the DEP will submit a report
outlining the effect of the ``low mileage'' waiver to the legislature;
by June 1, 1995, if necessary, will hold a public hearing on revised
regulation changes; and by September 1, 1995, if necessary, will submit
a revised SIP revision removing the ``low mileage'' waiver from the
regulations. The state must also address the above described issues
related to owner performed repairs according to the same schedule.
Section 110(k)(4) provides that, if a state fails to comply with its
commitment, such conditional approval will convert to a disapproval.
Failure to meet any of these dates will result in EPA disapproval
of this action, unless the EPA Regional Administrator approves a later
date, in writing, by no later than the date of the applicable
milestone. Under no circumstances will the September 1, 1995 date for
final submittal be revised.
Under 5 U.S.C. 605(b), I certify that this SIP revision will not
have a significant economic impact on a substantial number of small
entities. (See 46 FR 8709.)
This action has been classified as a Table 1 action by the Regional
Administrator under the procedures published in the Federal Register 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. A future document will inform the general public of
these tables.
Conditional approvals of SIP submittal under sections 110 and 301
subchapter I, part D of the CAA do not create any new requirements, but
simply approve requirements that the state is already imposing or has
committed to impose in the future. Therefore, because the federal SIP
approval does not impose any new requirements, 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 for a SIP approval would constitute federal
inquiry into the economic reasonableness of the state actions. The CAA
forbids EPA to base its actions concerning SIPs on such grounds. Union
Electric Co. v. U.S. EPA, 427 U.S. 246, 96 S. Ct. 2518 (1976); 42
U.S.C. 7410(a)(2).
If EPA issues a final disapproval or if this 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, such disapproval would not have a significant
impact on a substantial number of small entities because it would not
remove existing state requirements nor would it substitute a new
federal requirement.
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.
The Administrator's decision to approve or disapprove the SIP
revision is based on whether it meets the requirements of sections
110(a)(2) (A)-(K) and 110(a)(3) of the Clean Air Act, as amended, and
EPA regulations in 40 CFR part 51.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.
Note: Incorporation by reference of the State Implementation
Plan for the State of Maine was approved by the Director of the
Federal Register on July 1, 1982.
Dated: September 15, 1994.
Carol M. Browner,
Administrator.
Part 52, 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 U--Maine
2. Section 52.1019 is added to subpart U to read as follows:
Sec. 52.1019 Identification of plan--conditional approval.
(a) The following plan revisions were submitted on the dates
specified.
(1) On November 1, 1993 the Maine Department of Environmental
Protection submitted a revision to the State Implementation Plan (SIP)
for an enhanced Inspection and Maintenance (I/M) program in
Androscoggin, Cumberland, Kennebec, Knox, Lincoln, Sagadahoc, and York
counties. This submittal was supplemented by a letter dated May 26,
1994 describing additional changes Maine is making to the I/M program,
and a commitment to provide additional material by July 22, 1994. On
July 21, 1994, Maine submitted a revised submission. In these
submissions, the State submitted adequate legal and regulatory
authority to establish and implement an I/M program which meets the
requirements of the Clean Air Act by September 1, 1995.
(i) Incorporation by reference.
(A) Letters from the Maine Department of Environmental Protection
dated November 1, 1993, May 26, 1994 and July 21, 1994 submitting a
revision to the Maine State Implementation Plan.
(B) The ``Motor Vehicle Emission Inspection Program'' regulation at
Chapter 128 of the Department of Environmental Protection regulations
effective June 28, 1994.
(C) Title 38, Chapter 28, Motor Vehicle Inspection Program, and
Title 29, Section 102-C, Motor Vehicle Inspection Requirement for
Vehicle Registration, which are state law citations authorizing the
above regulation, both effective June 30, 1992 and revised effective
October 13, 1993.
(ii) Additional materials. Nonregulatory, administrative portions
of the November 1, 1993, May 26, 1994, and July 21, 1994 submissions to
the Maine State Implementation Plan.
(b) [Reserved].
[FR Doc. 94-27312 Filed 11-2-94; 8:45 am]
BILLING CODE 6560-50-P
