[Federal Register Volume 62, Number 93 (Wednesday, May 14, 1997)]
[Rules and Regulations]
[Pages 26401-26405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12628]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Region II Docket No. NJ23-1-164, FRL-5823-9]
Approval and Promulgation of Implementation Plans; New Jersey;
Motor Vehicle Inspection and Maintenance Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final rule.
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SUMMARY: EPA is granting conditional interim approval of a State
Implementation Plan (SIP) revision submitted by New Jersey. This
revision establishes and requires the implementation of an enhanced
inspection and maintenance (I/M) program in the State. There are two
intended effects of this action. One effect is to give conditional
approval to the State's proposed enhanced I/M program under section 110
of the Clean Air Act. The other intended effect is to grant interim
approval incorporating provisions authorized by section 348 of the
National Highway System
[[Page 26402]]
Designation Act, where applicable, to last a period of 18 months.
Application of section 348 may result in some program adjustments
during the 18-month period to ensure efficacy of the I/M program is
achieved.
EFFECTIVE DATE: This rule will be effective June 13, 1997.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the
following locations: Environmental Protection Agency, Region II Office,
Air Programs Branch, 290 Broadway, 25th Floor, New York, New York
10007-1866 and New Jersey Department of Environmental Protection, East
State Street, Trenton, New Jersey 08625.
FOR FURTHER INFORMATION CONTACT: Rudolph K. Kapichak, Mobile Source
Team Leader, Air Programs Branch, Environmental Protection Agency, 290
Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-4249.
SUPPLEMENTARY INFORMATION:
I. Background
On October 31, 1996 (61 FR 56172), EPA published a notice of
proposed conditional interim approval of New Jersey's enhanced I/M
program. New Jersey submitted changes to the existing program on March
27, 1996 to satisfy the applicable requirements of both the Clean Air
Act (CAA) and the National Highway System Designation Act (NHSDA).
As described in the October 31, 1996 document, the NHSDA directs
EPA to grant interim approval for a period of 18 months to approvable
I/M submittals. The NHSDA also directs EPA and the states to review the
program results at the end of the 18-month interim period and to make a
determination as to the effectiveness of the program. Following this
demonstration, EPA will adjust any credit claims made by the state in
its good faith estimate to reflect the emissions reductions actually
measured by the state during the program evaluation period. The NHSDA
is clear that the interim approval shall last for only 18 months and
that the program evaluation is due to EPA at the end of that period.
Therefore, EPA believes that Congress intended for these programs to
start up as soon as possible, which EPA believes should be on or before
November 15, 1997, so at least six months of operational program data
can be collected to evaluate the programs. EPA believes that in setting
such a strict timetable for program evaluations under the NHSDA,
Congress recognized and attempted to mitigate any further delay with
the start-up of these programs. If New Jersey fails to start its
program by November 15, 1997, the interim approval granted under the
provisions of the NHSDA, which EPA believes allows the State to take
full credit in its 15 percent plan for all the emission reduction
credits in its proposal, will convert to a disapproval after a finding
letter is sent to the State by EPA. Therefore, New Jersey would be
required to include additional provisions in its SIP to provide the
necessary emission credit reductions. Because the start date is not
being imposed pursuant to a commitment to correct a deficient SIP under
section 110(k)(4), the failure to start the program by this date will
not convert the SIP approval to a disapproval automatically. EPA is
imposing the start date under its general SIP approval authority of
section 110(k)(3), which does not require automatic conversion;
therefore, the approval will be converted to a disapproval only upon
EPA's notification of the State by letter.
EPA recognizes New Jersey's intent to start up the program on or
prior to November 15, 1997 but no later than February 1, 1998.
The program evaluation to be used by the state during the 18-month
interim period must be acceptable to EPA. The Environmental Council of
States (ECOS) group has developed such a program evaluation process
which includes both qualitative and quantitative measures and has been
deemed acceptable to EPA. The core requirement for the quantitative
measure is that a mass emission transient test (METT) be performed on
0.1% of the subject fleet, as required by the I/M Rule at 40 CFR 51.353
and 51.366. EPA believes that METT evaluation testing is not precluded
by the NHSDA, and therefore, is still required to be performed by
states implementing I/M programs under the NHSDA and the CAA.
As per the NHSDA requirements, this interim approval of the program
will expire on December 14, 1998. A full approval of New Jersey's final
I/M SIP revision, which will include the State's program evaluation and
final adopted State regulations, is still necessary under sections 110,
182, 184 and 187 of the CAA. After EPA's review of the State's
submitted program evaluation and final regulations, any necessary
additional rulemaking on New Jersey's SIP revision will occur. If the
State's program evaluation demonstrates a shortfall, the State must
find additional emission reductions.
Specific requirements of the New Jersey enhanced I/M SIP and the
rationale for EPA's proposed action are explained in the October 31,
1996 notice and will not be restated here.
II. Public Comments/Response to Comments
This section discusses the content of the comments submitted to the
docket during the Federal comment period for the notice of proposed
rulemaking, published in the October 31, 1996 Federal Register, and
provides EPA's responses to those comments. Comments were received from
only the State of New Jersey. Copies of the original comment letter,
along with EPA's summary and response to comments, are available at
EPA's Region II office at the address listed in the ADDRESSES section
of this notice.
Comment--Functional Evaporative System Testing
New Jersey commented that underlying uncertainties remain with the
functional evaporative system pressure and purge testing procedures as
indicated in a draft report by the New Jersey Institute of Technology
and in EPA's November 5, 1996 guidance. The State also commented that
these uncertainties are carried through the MOBILE model used to
determine compliance with the I/M performance standard requirement.
Response to Comment
On November 5, 1996, EPA issued a policy memorandum from Margo Oge,
Director of EPA's Office of Mobile Sources (OMS), entitled ``I/M
Evaporative Emissions Tests''. This memo outlines the difficulties
related to pressure and purge functional testing, in practice in I/M
programs. The memo provides that EPA will accept states' credit claims
for the benefits from implementing purge testing, although many states
are not expected to begin using this test for 12-18 months.
On December 20, 1996, EPA issued an addendum to the November 5,
1996 memo. This memorandum from Leila Cook, Regional and States Program
Group Leader of EPA's OMS, serves to clarify the policy set forth in
the November 5, 1996 memo. Specifically, this memo requires states to
actually perform an available pressure test to receive credits claimed
for such a program in their SIP revision. Full modeled credit (i.e.,
from the MOBILE model) for the performance of pressure testing is
available only if a state performs an Arizona-like pressure test from
the fill pipe and a separate gas cap check. States performing only a
gas cap check will receive only 40% of the available MOBILE-modeled
credits for pressure testing.
[[Page 26403]]
EPA has acknowledged problems with the current purge test.
Therefore, states such as New Jersey that have indicated that they will
perform a purge test when one is available may continue to take 100% of
the credit for the purge test, without actually performing such
testing, until such time as EPA develops a viable purge test procedure.
New Jersey has also indicated that they will be performing a gas cap
check and an Arizona-like pressure test as part of the enhanced I/M
program.
Comment--Implementation Date
New Jersey anticipates that implementation of the enhanced I/M
program will begin on or before November 15, 1997. However, full
program start-up will probably not occur until early 1998. New Jersey
believes that this schedule will allow them enough time to collect at
least six months of operational data consistent with EPA guidance under
the NHSDA.
New Jersey cites section 348(c) of the NHSDA which states that
interim approval expires 18 months from the date of final interim
approval or on the date of final approval, whichever is earlier and
that final approval will be granted after the state demonstrates that
the I/M program credits are appropriate. New Jersey also cites the EPA
December 12, 1995 guidance which states that to obtain at least six
months of program operation to evaluate performance, programs must
start as soon as possible but no later than 12 months after final
interim approval.
Response to Comment
As stated earlier in this notice, the NHSDA is clear that the
interim approval shall last for only 18 months and that the program
evaluation is due to EPA at the end of that period. This interim
approval will expire on December 14, 1998. While EPA is in agreement
with the State that start-up in early 1998 would allow New Jersey to
collect sufficient data for program evaluation prior to the expiration
of this conditional interim approval, EPA continues to believe that
under the NHSDA the program should start up as soon as possible, which
EPA believes is on or before November 15, 1997. If the State fails to
start its program by this date, this interim approval will convert to
disapproval after a finding letter is sent to the State, as addressed
above.
III. Conditional Interim Approval
a. Major Deficiencies
Under the terms of EPA's October 31, 1996 proposed conditional
interim approval notice, the State was required to make commitments
within 30 days to correct two major deficiencies with the I/M program
SIP by dates certain. On November 27, 1996, New Jersey submitted a
letter to EPA from Robert C. Shinn, Jr., Commissioner of the New Jersey
Department of Environmental Protection, committing to satisfy the major
deficiencies cited in the October 31, 1996 notice by dates certain
specified in the letter. On April 22, 1997, Commissioner Shinn
submitted a letter amending the date by which the required performance
standard modeling would be submitted. A discussion of New Jersey's
deficiencies follows below.
Enhanced I/M Performance Standard Modeling
States must submit modeling demonstrating that the proposed I/M
program achieves the required emission reductions by the relevant dates
to determine whether the state I/M program meets the enhanced I/M
performance standard. New Jersey did not include modeling results or
assumptions in its submittal, but in its April 22, 1997 letter has
committed to submit them no later than February 1, 1998.
Test Procedures, Standards and Equipment
Written test procedures and pass/fail standards and equipment
specifications shall be established and followed for each model year
and vehicle type included in the I/M program. New Jersey's I/M program
will be using a one-mode ASM emissions test for most of its fleet. New
Jersey has been working with other states and the equipment
manufacturers, in coordination with EPA, to develop their own
procedures, specifications and standards for one and-two-mode ASM
testing. EPA must receive the State's test procedures, standards and
equipment specifications well before testing begins since finalization
of these program elements is critical to the program beginning
operation as planned. New Jersey committed to submit the final test
procedures, standards and equipment specifications by January 31, 1997.
EPA has received the State's final test equipment, specifications and
standards. Therefore, this condition has been met.
EPA is taking final conditional approval action upon the New Jersey
I/M SIP, under section 110 of the CAA on the condition that the State
performs and submits modeling results to EPA no later than February 1,
1998. As discussed in detail later in this notice, this approval
program is also being granted an interim approval for an 18-month
period, under the authority of the NHSDA.
b. De Minimus Deficiencies
In addition to the above, the State must correct eight minor, or de
minimus, deficiencies related to the CAA requirements for enhanced I/M.
Although satisfaction of these deficiencies does not affect the
conditional interim approval status of the State's program, these
deficiencies must be corrected in the final I/M SIP revision to be
submitted at the end of the 18-month interim period:
(1) New Jersey must submit proof that adequate funding will be
available throughout the life of the program as per 40 CFR 51.354.
(2) New Jersey must submit final requirements for inspection of
fleet vehicles as per 40 CFR 51.356.
(3) New Jersey's quality control measures must be in accordance
with the requirements set forth in 40 CFR 51.359.
(4) New Jersey must provide a detailed description of its motorist
compliance enforcement program as per 40 CFR 51.361.
(5) New Jersey must provide a description of the procedures that
will ensure program quality; such as audits, and training requirements
as set forth in 40 CFR 51.363.
(6) New Jersey must provide final program requirements for data
collection as set forth in 40 CFR 51.365.
(7) New Jersey must provide final procedures for analyzing and
reporting program data as per 40 CFR 51.366.
(8) New Jersey must complete the public information program,
including the repair station report card as set forth in 40 CFR 51.368.
IV. Explanation of the Interim Approval Process
At the end of the 18-month period, the interim approval for this
program, which satisfies the requirements of CAA section 182(c)(3),
will automatically expire pursuant to the NHSDA. It is expected that
the State will at that time be able to make a demonstration of the
program's effectiveness using an appropriate evaluation criteria. EPA
expects the State will have at least six months of program data that
can be used for the demonstration. If the State fails to provide a
demonstration of the program's effectiveness to EPA at the end of the
18-month interim approval period, the interim approval will expire, and
EPA may disapprove the emission credits claimed for the State's I/M SIP
revision. If the State's program evaluation demonstrates a lesser
amount
[[Page 26404]]
of emission reductions actually realized than were claimed in the
State's previous submittal, EPA will adjust the State's credits
accordingly, and use this information to act on the State's final I/M
program.
V. Final Rulemaking Action
EPA is conditionally approving New Jersey's enhanced I/M program
based upon the conditions described in Section III(a) of this notice.
Unlike the start date condition, which was addressed above, should the
State fail to fulfill the performance standard modeling condition by
February 1, 1998, this conditional interim approval will convert to a
disapproval pursuant to CAA section 110(k)(4). In that event, EPA would
issue a letter to notify the State that the condition has not been met,
and the approval has converted to a disapproval. EPA clarifies that it
is taking both a limited conditional approval of the New Jersey
enhanced I/M program under section 110 which strengthens the SIP, as
well as a conditional interim approval under section 348 of the NHDSA
for purposes of compliance with the CAA section 182(c)(3). The limited
approval of the enhanced I/M program will not expire at the time the
interim approval of the 15 percent and 9 percent plans and the interim
approval of the enhanced I/M program under the NHSDA expire. Thus,
although an approved I/M program satisfying all of the requirements of
section 182(c)(3) may no longer be in place, the I/M program will
remain an enforceable SIP requirement. As explained above, the credits
provided by the I/M program on an interim basis for those plans may be
adjusted based on EPA's evaluation of the I/M program's performance.
VI. Further Requirements for Permanent I/M SIP Approval
This approval is being granted on an interim basis for a period of
18 months, in order for an evaluation of emission reduction credits,
under the authority of section 348 of the NHSDA. At the end of this
period, the interim approval of the emission credits will expire and
the credits will be adjusted accordingly based on the evaluation. At
that time, EPA must take action regarding the efficacy of the State's
SIP under the authority of sections 110 and 182 of the CAA. EPA will
evaluate New Jersey's I/M program based upon the following criteria:
(1) The State has complied with all the conditions of its
commitment to EPA,
(2) EPA's review of the State's program evaluation confirms that
the appropriate amount of program credit was claimed by the State and
achieved with the program during the interim period,
(3) Final program regulations are submitted to EPA, and
(4) The State's I/M program meets all of the requirements of EPA's
I/M rule, including those de minimus deficiencies identified in Section
III(b) above as minor for purposes of interim approval.
The State will be required to meet all conditions of this approval.
In addition, the emission credits obtained will be evaluated for their
adequacy for attainment, maintenance and other requirements of the CAA.
VII. Administrative Requirements
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
A. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
Conditional approvals of SIP submittals under section 110 and
subchapter I, part D of the CAA do not create any new requirements but
simply approve requirements that the State is already imposing.
Therefore, because the Federal SIP approval does not impose any new
requirements, I certify that it does not have a significant impact on
any small entities affected. Moreover, due to the nature of the
Federal-State relationship under the CAA, preparation of a flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
If the conditional approval is converted to a disapproval under
section 110(k), based on the State's failure to meet the commitment, it
will not affect any existing state requirements applicable to small
entities. Federal disapproval of the state submittal does not affect
its state-enforceability. Moreover, EPA's disapproval of the submittal
does not impose a new Federal requirement. Therefore, EPA certifies
that this disapproval action does not have a significant impact on a
substantial number of small entities because it does not remove
existing requirements nor does it substitute a new federal requirement.
C. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to State, local, or tribal governments in the aggregate;
or to private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated annual costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
pre-existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA
[[Page 26405]]
submitted a report containing this rule and other required information
to the U.S. Senate, the U.S. House of Representatives and the
Comptroller General of the General Accounting Office prior to
publication of the rule in today's Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
E. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 14, 1997. Filing a
petition for reconsideration by the Administrator of this final rule to
conditionally approve the New Jersey I/M SIP, on an interim basis, does
not affect the finality of this rule for the purposes of judicial
review, nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2) of the
Administrative Procedures Act).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.
Dated: April 28, 1997.
William J. Muszynski,
Deputy Regional Administrator, Region II.
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 FF--New Jersey
2. Section 52.1580 is added to read as follows:
Sec. 52.1580 Conditional approval.
(a) The State of New Jersey's March 27, 1996 submittal for an
enhanced motor vehicle inspection and maintenance (I/M) program, as
amended on November 27, 1996 and April 22, 1997, is conditionally
approved based on certain contingencies, for an interim period to last
18 months. If New Jersey fails to start its program by November 15,
1997, the interim approval granted under the provisions of the NHSDA,
which EPA believes allows the State to take full credit in its 15
percent plan for all of the emission reduction credits in its proposal,
will convert to a disapproval after a finding letter is sent to the
State by EPA. If the State fails to submit to EPA the final modeling
demonstrating that its program will meet the relevant enhanced I/M
performance standard by February 1, 1998, the conditional approval will
automatically convert to a disapproval as explained under Section
110(k) of the Clean Air Act.
(b) In addition to the above condition, the State must correct
eight minor, or de minimus, deficiencies related to the CAA
requirements for enhanced I/M. The minor deficiencies are listed in
EPA's conditional interim final rulemaking on New Jersey's motor
vehicle inspection and maintenance program published on May 14, 1997.
Although satisfaction of these deficiencies does not affect the
conditional interim approval status of the State's rulemaking, these
deficiencies must be corrected in the final I/M SIP revision to be
submitted at the end of the 18-month interim period.
(c) EPA is also approving this SIP revision under Section 110(k),
for its strengthening effect on the plan.
[FR Doc. 97-12628 Filed 5-13-97; 8:45 am]
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