[Federal Register Volume 63, Number 242 (Thursday, December 17, 1998)]
[Proposed Rules]
[Pages 69594-69598]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33475]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[ME059-7008; A-1-FRL-6203-1]
Approval and Promulgation of Air Quality Implementation Plans;
Maine; Vehicle Inspection and Maintenance Program; Restructuring OTR
Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve a revision to the Maine State
Implementation Plan (SIP), which was submitted to EPA for approval on
November 19, 1998 by the Department of Environmental Protection (DEP).
This submittal requested further flexibility from requirements
applicable to the Ozone Transport Region (OTR) in light of the current
air quality status of the area. The SIP revision includes sections of
the ``Maine Safety Inspection Manual,'' and additional supporting
material including detailed authorizing legislation (L.D. 2223, ``An
Act to Reduce Air Pollution from Motor Vehicles and to Meet
Requirements of the Federal Clean Air Act''), administrative items, and
a description of the program being implemented. This action is being
taken under Section 110 of the Clean Air Act.
DATES: Written comments must be received on or before January 19, 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 the State 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 Bureau of Air Quality Control,
Department of Environmental Protection, State House--Station No. 17,
Augusta, ME 04333.
FOR FURTHER INFORMATION CONTACT: Robert C. Judge, (617) 918-1045.
SUPPLEMENTARY INFORMATION: On November 19, 1998, Maine submitted a
revision to its State Implementation Plan (SIP) for vehicle inspection
and maintenance (I/M). This submittal requested further flexibility
from requirements applicable to the OTR in light of the current air
quality status of the area. The SIP revision includes Sections of the
``Maine Safety Inspection Manual,'' and additional supporting material
including detailed authorizing legislation (L.D. 2223, ``An Act to
Reduce Air Pollution from Motor Vehicles and to Meet Requirements of
the Federal Clean Air Act''), administrative items, and a description
of the program being implemented. This action is being taken under
section 110 of the Clean Air Act.
I. Clean Air Act Requirements
Section 184(b)(1)(A) of the Act requires certain areas in the Ozone
Transport Region (OTR) to adopt and implement an inspection and
maintenance program meeting EPA's enhanced I/M performance standard.
EPA's I/M rule was established on November 5, 1992 (57 FR 52950). EPA
made significant revisions to the I/M rule on September 18, 1995 (60 FR
48035) and on July 25, 1996 (61 FR 39036). Maine is affected by
requirements of the Act related to I/M in certain areas of the State.
Specifically, under EPA's I/M rule, enhanced I/M programs would be
required in the Portland, Maine ozone nonattainment area. This program
was initially submitted to fulfill Maine's obligations to implement I/M
pursuant to these requirements. The State is only required to submit an
I/M program because of its location in the OTR.
By this action, EPA proposes to approve Maine's submittal. EPA has
reviewed the State submittal against the requirements of the Act and
EPA's final I/M rule. The present version of the SIP submission does
not meet all of the requirements of EPA's final rule for enhanced I/M
in the OTR. The program does, however, contribute to air quality
improvement. Therefore, EPA proposes to approve the program for several
reasons. First, Maine has achieved all of its Clean Air Act control
plan requirements for overall emission reductions without I/M. That is,
the State has submitted an acceptable 15
[[Page 69595]]
percent VOC reduction plan, and based on 1996-1998 data in AIRS, has
achieved attainment of the 1-hour ozone standard without the
implementation of a vehicle I/M program. In addition, Maine and all
areas nearby, including New Hampshire, Eastern Massachusetts, and Rhode
Island appear to have attained the 1-hour ozone standard based on 1996-
1998 data, as discussed elsewhere in the Federal Register.
Additionally, Maine does not contribute to nonattainment of the 1-hour
ozone standard in any areas in the OTR (or elsewhere) where that
standard continues to be violated based on evidence submitted by the
State separately as part of their overwhelming ozone transport
demonstration. Therefore, EPA has concluded that the State should not
need to meet all the requirements for enhanced I/M in the OTR. Section
176A of the Clean Air Act states that the ``Administrator . . . may
remove any State . . . from the [OTR] whenever the Administrator has
reason to believe that control of emissions in that State . . .
pursuant to [the Act requirements for the OTR] will not significantly
contribute to attainment of the standard in the region.'' Implicit in
EPA's authority to remove a State from the OTR entirely is the
authority to eliminate or ``restructure'' specific control requirements
for States that remain in the OTR, provided the State demonstrates that
the control of emissions from such requirement will not significantly
contribute to attainment of the 1-hour ozone standard anywhere in the
OTR.
We propose that the State has met the test of section 176A and it
has requested further flexibility in meeting the Clean Air Act
requirements for I/M in the OTR. EPA believes that Maine's continued
participation in the OTR is beneficial, and that EPA's approval of this
I/M program will improve air quality. Therefore, in light of the above,
EPA is proposing to approve this I/M program as strengthening the SIP
despite the fact that it does not meet all requirements for enhanced I/
M in the OTR. Further, EPA did finalize the NOX SIP call for
22 States and the District of Columbia by notice dated October 27, 1998
(63 FR 57356). Maine was not included among those States, but EPA
intends to conduct modeling to determine whether a SIP revision under
section 110(a)(2)(D)(i)(I) should be required from Maine in the future.
Currently, EPA does not have evidence that emissions from sources in
Maine significantly contribute to 1-hour nonattainment downwind, but if
EPA determines that sources in Maine contribute significantly to
downwind nonattainment, today's action will be revisited.
EPA concludes that an enhanced I/M program is not required in Maine
because control of emissions from an I/M program would not contribute
significantly to attainment of the 1-hour ozone standard in any area of
the OTR. A summary of EPA's analysis of the State's I/M program 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, 184, and
187 of the Act. EPA made significant revisions to the I/M rule on
September 18, 1995 (60 FR 48035) and on July 25, 1996 (61 FR 39036).
The I/M regulation was codified at 40 CFR part 51, subpart S, and
requires States subject to the I/M requirement to submit 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 19, 1998, the State of Maine submitted an I/M SIP
revision for Cumberland County, which includes the Portland area. A
public hearing for the November 19, 1998 submittal was held on October
13, 1998.
The I/M SIP submittal provides for the implementation of I/M in
Maine's Cumberland County beginning on January 1, 1999. Maine will be
implementing an annual, test and repair I/M program which the State has
designed to meet the requirements of EPA's performance standard and
many other requirements contained in the federal I/M rule. Testing will
be overseen by the Department of Public Safety (DPS) and implemented by
individual garages in the existing safety inspection network. Aspects
of the Maine I/M program include: anti-tampering testing for catalytic
converters on 1983 and newer light duty vehicles and trucks, gas cap
pressure testing on 1974 and newer vehicles, and OBD2 checks (beginning
in January 2000), enforcement by the existing windshield safety
inspection stickers, requirements for testing convenience, quality
assurance, data collection, no cost waivers, reporting, test equipment
and test procedure specifications, public information and consumer
protection, inspector training and certification, penalties against
inspectors which perform faulty inspections, and emission recall
enforcement. An analysis of the Maine program, and Maine's
demonstration of how the I/M program meets many of the federal I/M SIP
requirements, is provided below.
A. Applicability
The Maine I/M regulations and authorizing legislation specify that
the I/M program be implemented only in Cumberland County, the minimum
required area under EPA rules, covering the Portland, Maine area.
B. Enhanced I/M Performance Standard
The I/M program was 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), under 40 CFR 51.351(h) of the I/M rule.
The State submitted a modeling demonstration using the EPA computer
model, MOBILE5b, showing that the enhanced performance standard will be
met. The State's demonstration shows that it expects to achieve the
reductions required by that section of the rule, and explains that they
intend to utilize additional benefits from reformulated gasoline to
ensure that the total emission reductions attributed to I/M meets
federal I/M requirements. On October 30, 1998, at the Governor of
Maine's request, EPA allowed the State to opt-out of the reformulated
gasoline program, contingent upon certain conditions being met. We
expect the State to meet those conditions, which include demonstrating
that they have adopted measures which achieve equivalent reductions. At
this point in time, however, the State cannot demonstrate that it meets
this requirement of the I/M rule.
C. Network Type and Program Evaluation
Maine has chosen to implement a test and repair I/M network program
design. The State has assumed conservative assumptions for credit
claims relative to its network design in its demonstration that it
meets the performance standard. EPA believes that a further
demonstration is not necessary. Furthermore, EPA's OTR low enhanced
rule does not require that the State perform additional program
evaluations beyond the data reporting requirements of the I/M rule in
the future.
D. Adequate Tools and Resources
The State's SIP outlines the level of resources dedicated to the I/
M program, and includes descriptions of the funding expended and the
personnel utilized within DEP and DPS to implement the program. The SIP
also describes the role
[[Page 69596]]
of DPS State Police enforcement personnel to be utilized in enforcing
the program. DEP will also play a role in implementing and analyzing
the program. Finally, the ``per test fee'' collected for each
inspection has been raised, with the additional funds going to the
State Highway fund, which the Transportation Committee of the
legislature can authorize to be spent on I/M program implementation.
The State has described both current and future plans to ensure
that adequate funding is provided to implement the program. While the
State has described in significant detail the plans it has to ensure an
effective program, the State has not dedicated funding to this effort.
E. Test Frequency and Convenience
The Maine SIP revision requires annual inspections for all subject
motor vehicles in Cumberland County. The inspections will be conducted
in concert with the existing schedule for the annual safety inspection
program. Short waiting times and short driving distances are not an
issue since this will be part of the State's existing safety inspection
network, with longstanding stations scattered throughout Cumberland
County prepared to test all subject vehicles.
F. Vehicle Coverage
Maine's I/M program covers all model year gasoline powered light-
duty vehicles and light-duty trucks, registered, or required to be
registered, within Cumberland County, with very limited exceptions.
Based on discussions with the State, EPA evaluated the effect of the
fact that antique vehicles and other similar vehicles are exempt from
testing and determined that such exemptions would not be the cause of
the program not achieving the performance standard. Model year 1974 and
newer vehicles are required to undergo the gas cap pressure test, and
1983 and newer vehicles are required to undergo the catalytic converter
check. Legal authority for the vehicle coverage requirement is
contained in the Maine Safety Inspection rules and the April 1998
authorizing legislation. EPA proposes to approve the submission as a
strengthening of the SIP based on the DEP's submittal, although it has
not met all EPA rule requirements.
G. Test Procedures and Standards
The Maine I/M SIP revision obligates the State to perform anti-
tampering checks of the nature described in the plan submission. The
State will be requiring these checks for 1983 and newer model year
vehicles in the area for the presence of the catalytic converter, and
checks for 1974 and newer vehicles for the presence, proper fit and
function of a gas cap. In addition, the State of Maine will be
requiring OBD2 system checks in accordance with EPA rules, beginning in
2001, with checks of the systems, but no repairs, starting in 2000.
H. Test Equipment
In its November 19, 1998 submittal, Maine's I/M SIP revision
describes procedures to follow to test vehicles. These procedures are
articulated in more detail in the Maine Safety Inspection Manual, and
the State's I/M authorizing legislation.
The SIP does not include a ``real time'' data link, but instead
every vehicle which leaves a station without a passing sticker is
reported to the Department of Public Safety with a ``safety refusal
card.'' The State feels that the fact that these vehicles are reported
to the Department of Public Safety will ensure that vehicle owners
comply, and do not shop around for a ``passing test.'' EPA believes
that the relatively unobtrusive program that the State is implementing
will help ensure that vehicle owners do not ``shop'' for passing
stickers any more than is done under the present safety inspection
program. For reasons described elsewhere in this notice, EPA is
proposing approval of this as a SIP strengthening measure, but it does
not meet EPA I/M requirements. The State does not require a ``real
time'' data link to prevent this sticker shopping, nor to collect the
requisite data required under the I/M rule.
I. Quality Control
The Maine I/M SIP narrative outlines quality control procedures.
However, since no significant test equipment is utilized, it is
minimal. Efforts to ensure that documents related to the inspection
remain secure are already in place and enforced by the DPS as part of
the existing safety inspection program.
J. Waivers and Compliance via Diagnostic Inspection
Since Maine is implementing largely an anti-tampering program, it
will not be issuing any waivers whatsoever, and this is approvable.
Maine will require the replacement of gas caps which fail the
pressure test.
K. Motorist Compliance Enforcement
The State of Maine has chosen to use a program of windshield
sticker based enforcement, based on its current safety inspection
program. Any vehicle driven without a valid sticker will ultimately be
caught by law enforcement officials. The motorist compliance
enforcement program will be implemented primarily by the Maine
Department of Public Safety (DPS). The enforcement strategy is
described in Maine's November 19, 1998 submittal. The enforcement
strategy is designed to ensure a high rate of compliance rate for all
vehicles within a short time of the compliance deadline. As described
in the November 19, 1998 submittal, this will be accomplished by
surveillance by law enforcement officials to identify uninspected and
unregistered vehicles. Vehicle owners of those vehicles operated
without a valid safety inspection sticker are fined, just as those that
are driven unregistered. Maine feels that the fact that windshield
safety inspection stickers are more easily identified helps ensure a
higher rate of compliance than with the less visible registration
stickers required to be on license plates. Maine does have a penalty
system whose purpose is to deter noncompliance, but the penalties
imposed may not be a sufficient incentive to deter noncompliance if a
vehicle owner expects that significant repairs will be required upon
inspection.
This program is not viewed as intrusive to the general public, and
it is not likely that citizens of Maine's Cumberland County will take
additional steps to avoid this I/M program. EPA is comfortable that, in
light of the type of vehicle ``testing'' being proposed, Maine's
program will be enforced in a manner commensurate with the type of
program implemented, and emission reductions expected. However, this
section of the State's program does not meet Clean Air Act requirements
to have the program based on vehicle registration. Further, while the
State did make a demonstration that this mechanism was both a ``pre-
existing'' enforcement mechanism and that it would be more effective
than registration denial would be, EPA has not concurred with those
assertions. Further, the State has not committed to ensuring the
continued effectiveness of its sticker based enforcement mechanism. In
general, EPA believes that a registration based program would be more
effective than sticker based enforcement since a vehicle can be
registered without being inspected, but cannot be inspected without
being registered. Further discussion on the State's enforcement
demonstration is included in the TSD prepared for this notice.
Nevertheless, for reasons outlined elsewhere in this notice, EPA
believes that this program should be
[[Page 69597]]
approved because it will strengthen the SIP, despite the fact that it
does not meet the requirements for enhanced I/M under the Clean Air
Act. The legal authority to implement and enforce the program is
included in the Maine State law and in DPS rules.
L. Motorist Compliance Enforcement Program Oversight
The Maine I/M SIP revision provides that EPA may perform regular
auditing of its enforcement program. The State does not describe its
own methods for ensuring that the program is enforced and overseen
sufficiently. The State's efforts for the motorist compliance
enforcement program do not meet federal I/M rule requirements.
M. Quality Assurance
The November 19, 1998 submittal from Maine states that the quality
assurance program will be developed. Since that program has not been
developed, what was submitted does not meet EPA requirements.
N. Enforcement Against Contractors, Stations and Inspectors
The Maine I/M SIP revision describes specific sanctions available
in its enforcement against stations and inspectors which fail to give
proper inspections. An inspector or station can have its authority to
inspect suspended if improper inspections are performed. Other
penalties include fines, warnings, and revocations. This section of the
State's program is appropriate for the type of program the State is
implementing for the purpose of strengthening the SIP.
O. Data Collection, Analysis, and Reporting
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, which include
all the relevant data points of 40 CFR 51.365. We expect that the data
collected would therefore include, at a minimum: station identification
number, technician name, customer name, vehicle ID and license plate
number, vehicle make, model, model year and mileage, pass/fail
determination, reason for failure, inspection sticker number, and
repairs performed.
P. Inspector Training and Licensing or Certification
The November 19, 1998 submittal describes the training and the
testing that is required of each inspector, prior to being certified to
perform these tests.
Q. Improving Repair Effectiveness
In the November 19, 1998 submittal, the State committed to
providing technical assistance and training opportunities for the
repair industry. The DEP does intend to work with the repair industry
to provide additional OBD2 training in the future.
R. Compliance With Recall Notices
The Maine I/M SIP will ensure that vehicles subject to its 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. Lists of vehicles
that have received recall notices will be provided to the inspection
stations, by coordination between the DEP and DPS.
S. On-Road Testing
Maine has stated that it has the legislative authority to move
forward with an on-road testing program. It intends to design a program
which meets EPA requirements in the future, and the program will be
conducted either by remote sensing or by ``on-road'' inspections.
T. Concluding Statement
A more detailed analysis of the State's submittal 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
Maine regulations and accompanying materials contained in the SIP
represent an acceptable I/M plan for the purpose of strengthening the
Maine SIP.
IV. Proposed Action
EPA is proposing to approve the SIP revision submitted by Maine on
November 19, 1998 as a revision to the SIP. The SIP revision proposes
approval of the State's I/M program. While the I/M program does not
meet all of the requirements of the enhanced I/M rule, EPA has
determined, based on the State's showing that additional reductions
from a fully enhanced I/M program will not significantly contribute to
attainment of the 1-hour ozone standard anywhere in the OTR, that the
requirements for an enhanced I/M program are not required in Maine.
Therefore, EPA is approving the Maine I/M program as strengthening the
SIP.
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.
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 12875
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a state, local, or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget, a description of the extent of EPA's prior
consultation with representatives of affected state, local, and tribal
governments, the nature of their concerns, copies of written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, E.O. 12875 requires EPA to
develop an effective process permitting elected officials and other
representatives of state, local, and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
Today's rule does not create a mandate on state, local or tribal
governments that does not already exist as a matter of State law. EPA
is simply approving a state regulation under the Clean Air Act.
Accordingly, the requirements of section 1(a) of E.O. 12875 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
[[Page 69598]]
and reasonably feasible alternatives considered by the Agency.
This rule is not subject to E.O. 13045 because it is not
``economically significant'' as defined under E.O. 12866, and does not
involve an action that addresses environmental 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 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 Act
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 proposed approval action 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, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 9, 1998.
Robert Perciasepe,
Assistant Administrator, OAR.
[FR Doc. 98-33475 Filed 12-16-98; 8:45 am]
BILLING CODE 6560-50-P
