[Federal Register Volume 64, Number 229 (Tuesday, November 30, 1999)]
[Proposed Rules]
[Pages 66829-66832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30781]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MA72-7206C; A-1-FRL-6481-1]
Approval and Promulgation of Air Quality Implementation Plans;
Massachusetts; Enhanced Motor Vehicle Inspection and Maintenance
Program and Rate of Progress Emission Reduction Plans
AGENCY: Environmental Protection Agency (EPA).
ACTION: Supplementary proposed rule.
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SUMMARY: The EPA is providing additional information and reopening the
comment period for two notices of proposed rulemaking to approve State
Implementation Plan (SIP) revisions submitted by the Commonwealth of
Massachusetts. These documents were published in the Federal Register
on September 27, 1999. The first is a rulemaking action proposing
approval of the Massachusetts motor vehicle inspection and maintenance
(I/M) program (64 FR 51937), and the second is a rulemaking action
proposing approval of the Massachusetts rate-of-progress plans for
reducing the emissions of ozone precursors in the Springfield ozone
nonattainment area (64 FR 51943). This document reopens the comment
period on both of these rules and provides additional information on
the I/M test to be used in Massachusetts and the timing of 15% and 9%
rate-of-progress plan reductions. This action is being taken under the
Clean Air Act.
DATES: Written comments must be received on or before December 30,
1999. Public comments on this document are requested and will be
considered before taking final action on this SIP revision.
ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director,
Office of Ecosystem Protection (mail code CAA), U.S. Environmental
Protection Agency, Region I, One Congress Street, Suite 1100, Boston,
MA 02114-2023. Copies of Massachusetts' submittal and EPA's technical
support document are available for public inspection during normal
business hours, by appointment at the Office of Ecosystem Protection,
U.S. Environmental Protection Agency, Region I, One Congress Street,
11th floor, Boston, MA; and the Division of Air Quality Control,
Department of Environmental Protection, One Winter Street, 8th Floor,
Boston, MA 02108.
FOR FURTHER INFORMATION CONTACT: Peter Hagerty, (617) 918-1049.
SUPPLEMENTARY INFORMATION: On March 27, 1997, the Commonwealth of
Massachusetts submitted an inspection and maintenance plan under the
provisions on the National Highway Systems Designation Act. On July 14,
1997, EPA published in the Federal Register (62 FR 37506) an Interim
Final Rule conditionally approving the Commonwealth's I/M SIP. The
notice conditioned approval on start-up of the program by November 15,
1997, which was based on a commitment made by the Commonwealth as part
of the SIP submittal. That Federal Register notice also listed other
elements of the I/M program for which the Commonwealth was required to
submit additional information. By means of a November 14, 1997, letter,
EPA notified Massachusetts that EPA was converting the conditional
approval of the enhanced I/M SIP revision to a disapproval on November
15, 1997 due to the fact that the program was not starting on November
15, 1997. The letter triggered the 18-month time clock for the
mandatory application of sanctions under section 179(a) of the CAA.
Therefore, the Act's offset sanction applied beginning May 15, 1999
because Massachusetts still had no enhanced I/M program started or
approved as part of its SIP.
I. Enhanced I/M SIP
In order to remedy the failure to start its enhanced I/M program in
November 1997, Massachusetts submitted a revision to its SIP on May 14,
1999 for an enhanced I/M program to begin on October 1, 1999. The
Commonwealth in fact commenced operation of the program on October 1,
1999. Although the Commonwealth commenced operation of the I/M program
on October 1, 1999, there were routine start-up difficulties which
required that DEP temper full enforcement of the program for two and
one half months. During October, November and early December 1999, the
Commonwealth is allowing drivers to obtain temporary stickers approving
cars to operate for a year if a station in the program did not have
fully operational test equipment ready when a driver came in for a
test. In a November 15, 1999 letter to EPA, the Commonwealth has
indicated that such temporary stickers will not be available starting
December 15, 1999, and any car that must get tested will be required to
find a station with operable testing equipment. This step ensures that
the I/M program will meet EPA's definition of start-up and that the
Commonwealth is fully enforcing an approvable I/M program as of
December 15, 1999.
In the September 27, 1999 proposed approval of the I/M program (64
FR 51937), there were other elements of the I/M SIP which needed to be
addressed prior to final action by EPA. These elements will be
addressed by the contractor the Commonwealth has retained to implement
the program and are listed as work elements of the contractor's scope
of services. Since the focus of the contractor and the Commonwealth has
been program start-up, these elements have not been addressed by the
contractor to date. In response to EPA's September 27, 1999 proposed
approval which describes the program elements Massachusetts must
supplement, the Commonwealth submitted in a letter dated November 3,
1999 a schedule for submitting these elements from January to March
2000. As stated before, a November 15, 1999 letter informed EPA that
the Commonwealth has taken steps that ensure the I/M program will be
fully enforced starting December 15, 1999. Additional information
submitted in support of the Commonwealth's I/M program is included in
the contract with Keating Technologies signed January 28, 1999,
Department of Environmental Protection (DEP) Regulations, chapter 310
CMR 60.02, and Registry of Motor Vehicles Regulations, chapter 540 CMR
4.00-4.09, and administrative items, including a description of the
program being implemented and DEP's response to comments document dated
May 14, 1999.
Starting on October 1, 1999, the Commonwealth began implementing a
31 second transient test utilizing the BAR 31 trace and NYTEST
equipment. In the September 27, 1999 proposed
[[Page 66830]]
rulemaking, EPA inaccurately stated that the Commonwealth will use an
IM240 test with NYTEST equipment and inaccurately implied that the test
the Commonwealth was conducting should be allowed IM240 emission
reduction credit. There is no data available at this time to assign the
exact emission reduction credit for the combination of test type and
equipment that the Commonwealth is implementing. Nevertheless, even if
one makes extremely conservative assumptions about the efficacy of the
Massachusetts test, EPA's mobile modeling shows that the I/M program
demonstrates compliance with EPA's performance standard for a low
enhanced program. EPA's analysis of these conservative assumptions is
available in a technical support document in the docket for this
action.
II. Massachusetts 15% and 9% Plans for the Springfield
Nonattainment Area
On April 1, 1999, June 25, 1999, and September 9, 1999, the
Commonwealth of Massachusetts submitted revisions to its 15% and 9%
rate-of-progress plans for the Springfield serious ozone nonattainment
area. These revisions contain a new start-up date for the
Commonwealth's automobile I/M program (i.e., October 1, 1999), and
revised emission reduction estimates for this program. In the September
27, 1999 Federal Register, EPA proposed approval of the rate-of-
progress (ROP) emission reduction plans as revisions to the
Commonwealth's SIP (64 FR 51943). As stated in the September 27, 1999
proposed rulemaking, the Commonwealth's ROP plans contain a
demonstration that the amount of emission reductions required in its
15% and 9% plans pursuant to sections 182 (b)(1) and (c)(2) of the
Federal Clean Air Act can be achieved despite lessening the emission
reductions attributable to the I/M program because of its delayed
start-up date. The Commonwealth achieved the required reductions in
ozone precursors by November 15, 1999, primarily by changing the way
that emission increases due to growth were determined, based on more
accurate date of actual growth rates rather than earlier inflated
projections. This demonstration was the basis of EPA's September 27,
1999 proposed approval.
As discussed above, however, emission tests under the enhanced I/M
program were phased in over a two and one half month period in October,
November and December, 1999. Also, EPA is using more conservative
assumptions of the amount of credit derived from the combination of I/M
test type and equipment that the Commonwealth is implementing.
Therefore, it is no longer certain that the Commonwealth will achieve
the emission reductions required of 15% and 9% plans by the November
15, 1999 evaluation date originally assumed. What is more certain is
that the required reductions will be achieved sometime in early 2000 as
more and more of the vehicles registered in Massachusetts are subject
to more stringent emission testing under the Commonwealth's enhanced I/
M program which started on October 1, 1999. Based on the volume of
vehicles subject to emission testing each month, EPA believes the
estimated reductions from I/M needed for the
15% and 9% plans will definitely be achieved and surpassed by the end
of April 2000, prior to the next ozone season. EPA believes that these
reductions are being achieved as expeditiously as practicable and that
no other reasonable emissions control strategy would allow the
Commonwealth or EPA to achieve these reductions sooner. In the future,
Massachusetts will conduct necessary comparison testing to determine
the appropriate emission reduction for SIP credit using the combination
of the BAR 31 transient trace with NYTEST equipment. This will be
important for purposes of approving the ozone attainment demonstration
for the one-hour ozone standard submitted by the Commonwealth on July
27, 1998. In that submittal, the Commonwealth is relying on more
substantial reductions from the enhanced I/M program it is implementing
to show attainment with the one-hour ozone standard. When EPA acts on
the attainment demonstration, we will evaluate whether Massachusetts
has adequately demonstrated that the emission reduction credit it is
claiming for its
I/M program in that attainment demonstration is warranted for the
combination of test type and equipment that the Commonwealth is
implementing.
For a more detailed discussion of EPA's evaluation of when the
emission reductions required of 15% and 9% plans will be achieved, the
reader should refer to the Technical Support Document (TSD) entitled,
``Revised Technical Support Document for the Massachusetts 15% and 9%
plans'' dated November 10, 1999. Copies of this TSD are available at
the previously mentioned addresses.
III. EPA's Current Rulemaking Actions
On September 27, 1999, EPA proposed approval of the Massachusetts
I/M SIP revision to meet the requirements of the federal I/M rule. In
addition, on the same day EPA proposed approval of the Massachusetts
rate-of-progress emission reduction plans which includes the 15% plan.
These actions are tied together because in order for Massachusetts to
meet the low enhanced performance standard for I/M, the 15% plan must
be approvable. Elsewhere in today's Federal Register, EPA is publishing
an Interim Final Determination that Massachusetts has taken the actions
necessary to fully enforce an approvable I/M SIP as of December 15,
1999. This action will stay the imposition of sanctions starting
December 15, 1999, until the SIP is either approved or partially
disapproved. In the proposed rule for the Massachusetts I/M program,
EPA proposed in the alternative to issue a limited approval/limited
disapproval of the program if Massachusetts fails to start the program
in a timely manner or fails to submit any of the program elements that
the Contractor will provide under its scope of work. The limited
disapproval would effectively withdraw the proposed approval.
Withdrawal of the proposed approval would result in growth sanctions
and highway sanctions going into effect immediately.
IV. Proposed Action
EPA is reproposing approval of both the Massachusetts inspection
and maintenance program statewide and the rate of progress plans for
the Springfield nonattainment area which were originally proposed for
approval on September 27, 1999 (64 FR 51937, 64 FR 51943). EPA is
soliciting public comments on the issues discussed in this proposal or
on other relevant matters. These comments will be considered before EPA
takes final action. Interested parties may participate in the Federal
rulemaking procedure by submitting written comments to the EPA Regional
office listed in the ADDRESSES section of this action.
The Agency has reviewed this request for revision of the Federally-
approved State implementation plan for conformance with the provisions
of the 1990 amendments enacted on November 15, 1990.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any State implementation plan. Each request for revision to
the State implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
[[Page 66831]]
relation to relevant statutory and regulatory requirements.
V. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order (E.O.) 12866, entitled
``Regulatory Planning and Review.''
B. Executive Order 13132
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
This final rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
Thus, the requirements of section 6 of the Executive Order do not apply
to this rule.
C. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is
determined to be ``economically significant'' as defined under E.O.
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children, and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency.
This rule is not subject to E.O. 13045 because it does not involve
decisions intended to mitigate environmental health or safety risks.
D. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly affects or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. This action does not involve
or impose any requirements that affect Indian Tribes. Accordingly, the
requirements of section 3(b) of E.O. 13084 do not apply to this rule.
E. Regulatory Flexibility
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
This proposed rule will not have a significant impact on a
substantial number of small entities because SIP approvals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP approval does not
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under
the Clean Air Act, preparation of flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976);
42 U.S.C. 7410(a)(2).
F. Unfunded Mandates
Under Sections 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action proposed does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
requirements.
Accordingly, no additional costs to State, local, or tribal
governments, or to the private sector, result from this action.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate
[[Page 66832]]
matter, Reporting and recordkeeping requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 15, 1999.
John P. DeVillars,
Regional Administrator, Region I.
[FR Doc. 99-30781 Filed 11-29-99; 8:45 am]
BILLING CODE 6560-50-P
