[Federal Register Volume 59, Number 136 (Monday, July 18, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17375]
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[Federal Register: July 18, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NH14-1-6483; A-1-FRL-5014-6]
Approval and Promulgation of Air Quality Implementation Plans;
New Hampshire; Enhanced Inspection and Maintenance in Hillsborough,
Merrimack, Rockingham, and Strafford Counties
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: In this action, EPA proposes to conditionally approve or, in
the alternative, disapprove the New Hampshire Enhanced Inspection and
Maintenance (I/M) State Implementation Plan (SIP) which was submitted
to EPA for approval on March 1, 1994, April 20, 1994, and April 28,
1994. These submittals were supplemented by letters dated May 19, 1994
and June 28, 1994 providing additional information and specific
assurances regarding changes New Hampshire is making to the program and
stating the State's intent to submit further information to EPA by
August 19, 1994. The content of the State's letters is described in
detail in this notice. If such information is submitted for inclusion
in the SIP on or before that date, EPA proposes to conditionally
approve the New Hampshire I/M SIP. If such information is not submitted
by August 19, 1994, EPA proposes to disapprove the SIP. Since the
August 19, 1994 submittal will not be included in the docket for this
notice in time to provide adequate public review and comment during the
normal comment period, the comment period will remain open only for
comments concerning the August 19, 1994 submittal until August 29,
1994. Conditional approval is based on the state's commitment to
satisfy specified conditions by July 29, 1995. If such conditions are
not met by July 29, 1995, the conditional approval automatically will
convert to a disapproval.
New Hampshire submitted this I/M SIP revision to EPA to satisfy the
requirements of sections 182(b)(4), 182(c)(3) and 184(b)(1)(A) of the
Clean Air Act, and EPA's I/M rule at 40 CFR Part 51, Subpart S. These
SIP revisions will require vehicle owners to comply with the New
Hampshire I/M program in four New Hampshire counties that are part of
the Northeast Ozone Transport Region namely, Hillsborough, Merrimack,
Rockingham and Strafford. This action is being taken under Section 110
of the Clean Air Act.
DATES: Comments must be received on or before August 17, 1994. Only
public comments on the submittal due on August 19, 1994 by the state of
New Hampshire may be received after August 17, 1994 but not later than
August 29, 1994. Public comments on these documents are requested and
will be considered before taking final action on this SIP revision.
ADDRESSES: Comments may be mailed to Linda M. Murphy, Director, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, New England Region, JFK Federal Bldg. (AAA), Boston,
MA 02203. Copies of the State submittal and EPA's technical support
document are available for public inspection during normal business
hours, by appointment at the Air, Pesticides and Toxics Management
Division, U.S. Environmental Protection Agency, New England Region, One
Congress Street, 10th floor, Boston, MA and the New Hampshire
Department of Environmental Services, Air Resources Division, 64 North
Main Street, Concord, NH 03302-2033.
FOR FURTHER INFORMATION CONTACT: Peter X. Hagerty, (617) 565-3224.
SUPPLEMENTARY INFORMATION:
I. Clean Air Act Requirements
The Clean Air Act, as amended in 1990 (CAA or Act), requires
certain States to revise and improve existing I/M programs or implement
new ones. All ozone nonattainment areas classified as moderate or worse
must implement a basic or enhanced I/M program depending upon its
nonattainment classification, regardless of previous requirements. In
addition, Congress directed the EPA in section 182(a)(2)(B) to publish
updated guidance for State I/M programs, taking into consideration
findings of the Administrator's audits and investigations of these
programs. The States must then incorporate this guidance into the SIP
for all areas required by the Act to have an I/M program. Metropolitan
statistical areas with populations of 100,000 or more that are within
the Northeast Ozone Transport Region are required to meet EPA guidance
for enhanced I/M programs.
II. Background
The EPA has designated three areas as nonattainment for ozone in
the State of New Hampshire. The New Hampshire portion of the Boston-
Lawrence-Salem Consolidated Metropolitan Statistical Area is classified
serious for ozone, the Portsmouth-Dover-Rochester Metropolitan
Statistical Area (MSA) also is classified serious for ozone, and the
Manchester MSA is classified marginal for ozone. The designations for
ozone were published in the Federal Register (FR) on November 6, 1991
(56 FR 56694) and November 30, 1992 (57 FR 56762) and have been
codified in the Code of Federal Regulations (CFR) at 40 CFR sections
81.300-81.437. Based on these nonattainment designations, an enhanced
I/M program is required in Hillsborough, Rockingham, Strafford. In
addition, these MSAs have populations of over 100,000 or more and are
included in the Ozone Transport Region. Although parts of Merrimack
County are in the Manchester MSA, the county could be exempted since,
in New England, MSAs are defined by town, not by county and more than
fifty percent of the MSA population would be in the I/M program and the
population density is less than 200 persons per square mile. Under
EPA's I/M rule 40 CFR 51.350(b)(1) such portions of Merrimack county
are not required to implement I/M. However, all of Merrimack County is
included to generate emission reductions which may be used as offsets
or trading credits.
By this action, EPA is proposing to conditionally approve and in
the alternative, disapprove the New Hampshire I/M SIP revision. EPA has
reviewed the State submittals against the statutory requirements under
the Act and for consistency with EPA regulations. In letters dated May
19, 1994 and June 28, 1994, New Hampshire indicated its intent to
address a number of outstanding issues discussed further in this notice
and to submit necessary revisions to EPA by August 19, 1994. If such
revisions are submitted in a timely manner, are consistent with this
notice and fully meet the requirements of the I/M rule, EPA will
conditionally approve the SIP. Three parts of the program, on-road
testing, compliance via diagnostic inspection, and enforcement against
inspectors require more time to resolve and provide the basis for
today's proposed conditional approval. As requested by New Hampshire,
the state will have until July 29, 1995 to submit these revisions to
address these three areas. If such revisions are submitted by that
date, fulfill the conditions set forth in this notice, and fully meet
the requirements of the I/M rule, the state will have met the specified
conditions and the I/M SIP will be fully approved. A summary of EPA's
analysis is provided below. In addition, more detailed support for
conditionally approving the State submittal is contained in the
technical support document (TSD), dated June 28, 1994, which is
available from the New England Regional Office, listed above.
On November 5, 1992 (57 FR 52950), EPA published a final regulation
establishing the I/M requirements, pursuant to sections 182 and 187 of
the Act. The I/M regulation was codified at 40 CFR Part 51, Subpart S,
and requires States to submit, by November 15, 1993, an I/M SIP
revision including all necessary legal authority and the items
specified in 40 CFR 51.350 (a)(1) through 51.373.
III. State Submittal
On March 1, 1994, April 20, 1994, and April 28, 1994, the State of
New Hampshire submitted an I/M SIP for its three nonattainment areas.
Public hearings for the submittals were held on January 5 and 6, 1994,
for the March 1, 1994 SIP submittal, and on March 8, 1994 for the April
20, 1994 SIP submittal. The April 28, 1994 submittal contained only
administrative materials to supplement the April 20 submission. EPA
submitted written comments to the state on March 18, 1994. EPA's
primary comments concerned the State's modeling analysis demonstrating
achievement of the performance standard, and the motorist compliance
enforcement program. In letters dated May 19, 1994 and June 28, 1994,
the state agreed to submit by August 19, 1994 additional information to
address these and other areas identified in this notice and discussed
further below.
The submittals provide for the implementation of an enhanced I/M
program in four counties in New Hampshire beginning on January 1, 1995.
New Hampshire will be implementing a biennial, test-only I/M program
meeting the requirements of the I/M performance standard and other
requirements contained in EPA's I/M rule. Testing will be overseen by
the New Hampshire Department of Safety (NHDOS) and the New Hampshire
Department of Environmental Services (NHDES), with actual testing done
by a contractor. Other aspects of the New Hampshire I/M program
include: testing of 1968 and later light duty vehicles and trucks, and
heavy duty trucks, evaporative emission testing for 1975 and later
model year vehicles, a test fee to ensure the State has adequate
resources to implement the program, enforcement by registration
suspension, a repair effectiveness program, contractual requirements
for testing convenience, quality assurance, data collection, minimum
expenditure, time extension and hardship waivers, reporting, test
equipment and test procedure specifications, public information and
consumer protection, inspector training and certification, and
penalties against inspector incompetence. In addition, the enhanced I/M
program will include: IM240 testing for 1981 and newer vehicles, an on-
road testing program, and emission recall enforcement. A section-by-
section analysis of how the New Hampshire I/M program meets the SIP
requirements of the federal I/M rule is provided below.
A. Applicability
Under EPA's I/M rule, the SIP must describe the applicable areas in
detail and, consistent with 40 CFR Section 51.372, must include legal
authority necessary to establish program boundaries and implement the
program.
The New Hampshire I/M legislation in Chapter 353 of the Laws of
1993 specifies that vehicles registered in Hillsborough, Merrimack,
Rockingham, and Strafford counties be subject to an enhanced I/M
program.
EPA's I/M regulation requires that the state program shall not
terminate prior to the attainment deadline for each applicable area.
The New Hampshire program has no sunset date.
B. Enhanced I/M Performance Standard
Under EPA's I/M rule, an I/M SIP must meet the enhanced I/M
performance standard for pollutants that cause the affected area to
come under I/M requirements. The performance standard sets an emission
reduction target that must be met by a program in order for the SIP to
be approvable. The SIP also must provide that the program will meet the
performance standard in actual operation, with provisions for
appropriate adjustments if the standard is not met.
New Hampshire has submitted a modeling demonstration using the EPA
computer model MOBILE5a showing that the enhanced performance standard
will be met. This demonstration will need to be revised since the
assumptions for gasoline Reid Vapor Pressure (RVP) and vehicle
refueling emissions used in the model program were not the same as
those used in the New Hampshire proposed program. In addition, the
State used national average vehicle age data because the existing
registration data is believed to be unreliable, and the State assumed a
99% compliance rate and waiver rate of 1%. EPA agreed to allow the use
of national vehicle age data but questioned the use of the 99%
compliance and 1% waiver rates given the unreliable registration model
year data and the lack of an adequate description of the motorist
enforcement system. EPA believes that a 96% compliance rate and 3%
waiver rate are achievable for a well operated program, but rates in
excess of these require measures which go beyond normal enforcement and
quality control measures. EPA has evaluated these matters and
determined that the program will meet the performance standard with the
correct RVP and vehicle refueling emissions assumptions and with either
a 99% compliance rate and 1% waiver rate or with the rates provided in
EPA's I/M rule, namely, a 96% compliance rate and a 3% waiver rate. In
a letter dated May 19, 1994, the State agreed to reconsider the
compliance and waiver rates and submit additional information by August
19, 1994 justifying these rates, or revising them to lower rates. At a
minimum, the state intends to meet a 96% compliance rate and 3% waiver
rate as required by the EPA rule.
New Hampshire has submitted a separate SIP submittal for the 15%
rate of progress demonstration required by the Act. That SIP is being
evaluated by EPA and will be discussed in a separate Federal Register
notice. Any implications of New Hampshire's decision on compliance and
waiver rates on their 15% rate of progress SIP will be discussed in
that notice.
C. Network Type and Program Evaluation
Under 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 must 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,
and the legal authority enabling the evaluation program.
New Hampshire has chosen to implement a test-only I/M network
program design utilizing a contractor to implement the inspection
portion of the program. Legal authority contained in Chapter 353 of the
Laws of 1993 authorizes the NHDOS to implement this contractor operated
test-only program and conduct the program evaluation. The contractor
will be required to use a computer program to randomly select 0.1% of
the vehicles for evaluation testing. The state has indicated in the May
19, 1994 letter that these tests will be monitored by either a NHDOS
referee at the station, the station manager, or a representative of the
NHDES. The required data will be collected by the contractor. NHDES
will analyze this data with the resources assigned to the program.
The May 19, 1994 letter also indicates that the August 19, 1994
submittal will include provisions with appropriate penalties in the
contract to bar employees of the contractor from referring motorists to
particular repair shops.
D. Adequate Tools and Resources
Under 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 other requirements
discussed throughout, 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.
Within the New Hampshire I/M SIP revision, Chapter 353 of the New
Hampshire Laws of 1993 authorizes the collection of $2.75 in addition
to the cost of each inspection to cover the administration, oversight,
and enforcement of the I/M program. The SIP narrative describes the
budget, staffing support, and equipment needed to implement the
program. The State expects to dedicate a staff of 12.5 full-time
equivalent employees to support the program. EPA is concerned that the
resources identified may not be sufficient to administer and oversee
the program properly. The resources identified are significantly lower
than resources other states have planned which will be implementing
programs of approximately the same size. EPA will monitor the program
closely during the first year to determine if administration,
enforcement and oversight are adequate. The submittal also calls for
audit gases (gases used to calibrate emission analyzers) for state
audits to be supplied by the contractor. These gases should be
independently named. In its letter dated June 28, 1994 the state has
agreed to have audit gases independently named by sending them to EPA.
EPA will also ensure that this requirement is met during audits of the
New Hampshire program.
E. Test Frequency and Convenience
Under EPA's I/M rule, the SIP must describe the test schedule in
detail, including the test year selection scheme if testing is other
than annual. Also, the SIP must 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 must demonstrate that the
network of stations providing test services is sufficient to insure
consumer convenience including short waiting times to get a test and
short driving distances to get to a test center.
The New Hampshire SIP requires biennial inspections for all subject
motor vehicles that are at least one year 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 explained in the SIP.
The authority for the enforcement of the testing frequency is contained
in the Chapter 353 of the Laws of 1993. Short waiting times and short
driving distances relating to network design are required by Chapter
353 and are addressed in the RFP and will be required of the chosen
contractor under the contract. The State is requiring, by contract, a
15 minute average waiting time and short driving distances such that
80% of the vehicle population is located within five miles of an
inspection facility, and 95% of the vehicle population is located
within twelve miles of an inspection facility.
F. Vehicle Coverage
Under EPA's I/M rule, the SIP must include a detailed discription
of the number and types of vehicles to be covered by the program, and a
plan for identifying 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 authorized by
the program, along with an estimate of the percentage and number of
affected vehicles. Such exemptions need to be accounted for in the
emission reduction analysis. In addition, the SIP must include the
legal authority necessary to implement and enforce the vehicle coverage
requirement.
The New Hampshire program includes coverage of 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
above-mentioned four county area, and of fleets primarily operated
within an I/M program area. Vehicles will be identified by the NHDOS
vehicle registration database. The NHDOS computer system and
registration data base needs to be updated. In its letter dated May 19,
1994 New Hampshire stated it's intention to update this information
with a table of subject vehicles by model year by August 19, 1994.
Diesels, motorcycles and vehicles over 26,000 lbs Gross Vehicle Weight
Rating GVWR are exempt from the emission testing program. Legal
authority for the vehicle coverage is contained in the New Hampshire
Chapter 353 of the Laws of 1993.
G. Test Procedures and Standards
Under EPA's I/M rule, the SIP must include a description of each
test procedure. The SIP also needs to include the rule, ordinance or
law describing and establishing the test procedures.
The New Hampshire I/M SIP requires IM240 (transient) testing in
accordance with EPA's guidance document entitled, ``High-Tech I/M Test
Procedures, Emission Standards, Quality Control Requirements, and
Equipment Specifications'' dated April 1994 (Technical Guidance). New
Hampshire referenced an older version of this document but in its May
19, 1994 letter to EPA confirmed that the state already has notified
potential vendors of this change through the April 25, 1994
communication the state advised all potential contractors that the most
recent version of EPA specifications and guidelines should be used. The
State requires IM240 and evaporative purge tests on 1981 and later
model year vehicles up to and including 10,000 lbs gross vehicle weight
rating (GVWR). All 1968 thru 1980 vehicles up to, and including, 10,000
lbs GVWR and all 1968 and newer vehicles 10,001-26,000 lbs will be
tested with a two-speed test. All 1979 and newer vehicles will receive
a pressure test. A visual tampering inspection will be conducted on all
1975 and newer vehicles.
The test procedures are authorized by Chapter 353 of NH Laws of
1993 and further defined in the NHDOS Enhanced Emissions Inspection and
Maintenance Program Rules (NH Enhanced I/M Rules). The May 19, 1994
letter stated that the State will establish the cutpoints necessary to
achieve a 20% stringency rate for vehicles being idle tested in 1999.
The need to revise the final cutpoints will be assessed once actual
test data is available from the New Hampshire program. The results of
such assessment could require revision of the State's regulations prior
to the 1999 testing cycle.
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 must
address each of the requirements in 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.
The New Hampshire I/M SIP requires the use of the equipment
specifications in EPA's Technical Guidance. As previously stated, New
Hampshire referenced an older version of this document but updated the
reference in the State's May 19, 1994 letter to EPA. The New Hampshire
SIP and RFP 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 contract
through the RFP.
I. Quality Control
Under EPA's I/M rule, the SIP must include a description of quality
control and recordkeeping procedures. The SIP must include the
procedures manual, rule, and ordinance or law describing and
establishing quality control procedures and requirements.
The New Hampshire I/M SIP narrative and RFP contain descriptions
and requirements establishing the quality control procedures in
accordance with the Federal I/M rule. These requirements will help
ensure that equipment calibrations are properly performed and recorded
and that compliance document security is maintained. The quality
control procedures manual will be developed as part of the contract and
is required by New Hampshire in the RFP. New Hampshire's May 19, 1994
letter to EPA states its intent to follow specifications for quality
control per EPA's Technical Guidance. The August 19, 1994 submittal
will address this.
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. Also, the State must take corrective action if the waiver
rate exceeds that estimated in the SIP or revise the SIP accordingly
and the emission reductions claimed. In addition, the SIP 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, 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
EPA's PI/M rule.
In the New Hampshire I/M SIP revision, legal authority for waivers
is set forth in Chapter 353 of the Laws of 1993. Consistent with EPA's
I/M rule, waiver cost limits are established at $450 and adjusted
annually in the New Hampshire enhanced I/M the program. The SIP
revision also includes a 1% waiver rate expressed as a percentage of
initially failed vehicles. This 1% waiver rate was used in the New
Hampshire modeling demonstration. The state is reconsidering this rate
as discussed in section B. above, and will provide additional
justification to support it or revise it in the August 19, 1994
submittal. The SIP provides that, if the waiver rates are higher than
estimated, NHDES will take corrective action to address the deficiency.
The SIP describes three types of waivers the State may allow. Such
waivers include a minimum expenditure waiver, a time extension waiver,
and a one-time hardship waiver. These waivers are consistent with EPA's
I/M rule. The proper criteria, procedures, quality assurance and
administration for issuing waivers is ensured by the NHDOS and its
managing contractor and are described in the SIP narrative, Section 6
of the New Hampshire Enhanced I/M rules and the RFP.
Compliance via diagnostic inspections were allowed for all model
years in the original submission, but in a letter dated May 19, 1994,
the state indicated that it will establish procedures and a policy
which will allow compliance by this mechanism only on 1981 and newer
vehicles subject to IM240 tests at final cutpoints or lower. The state
commits to submitting this revision by July 29, 1995. This part of the
New Hampshire SIP provides one basis for EPA's proposal of a
conditional approval of this SIP revision.
K. Motorist Compliance Enforcement
Under EPA's I/M rule, the SIP must provide information concerning
the motorist compliance enforcement process, including: (1) A
description of the existing compliance mechanism if it is to be used in
the future, 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, for example, those operated
in (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 that includes 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 need to be supported with detailed analyses. In
addition, the SIP needs to include the legal authority to implement and
enforce the program. Lastly, the SIP needs to include a commitment to
an enforcement level to be used for modeling purposes and to be
maintained, at a minimum, in practice.
The State has chosen to use registration suspension as its primary
enforcement mechanism. Motorists will have 45 days from the
registration date to comply with the I/M program requirements or their
vehicle registration will be suspended. The motorist compliance
enforcement program will be implemented by the NHDOS. The SIP does not
describe the computer matching system necessary to implement this
system. Motorcycles and diesel vehicles are exempt from this program as
permitted by the I/M rule. Fleet vehicles, rental car fleets, and
leased vehicles are required to meet the same program requirements as
all other subject vehicles. The State has not yet developed a plan for
fleet vehicles, but requires this as part of the contract. The State
has not addressed tracking out-of-state exemptions. The State has
estimated a 99% compliance rate without a detailed description of how
this will be accomplished. The legal authority to implement and enforce
the program is included in Chapter 353 of the Laws of 1993. In its
letters of May 19, 1994 and June 28, 1994, the State submitted a
detailed description of the enforcement process and committed to
justifying the compliance rate, or revising the compliance rate in the
SIP and to address the other deficiencies described in this section by
August 19, 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 New Hampshire I/M SIP did not address this area specifically.
However, in its letter dated June 28, 1994, New Hampshire committed to
comply with 40 CFR 51.362, motorist compliance enforcement oversight
and explained that the SIP committed to achieving the highest quality
assurance and quality control to meet this requirement.
M. Quality Assurance
Under EPA's I/M rule, the SIP must include a description of the
quality assurance program, and written procedures manuals covering both
overt and covert performance audits, record audits, and equipment
audits. This requirement does not include materials or discussion of
details of enforcement strategies that would ultimately hamper the
enforcement process.
The New Hampshire I/M SIP revision includes a description of its
quality assurance program. The program includes overt and covert audits
of all emission inspectors and emission inspection lanes and will be
conducted by the NHDOS. Procedures and techniques for overt and covert
performance, record, and equipment audits will be developed by the
state or a contractor, given to auditors and updated as needed. The SIP
does not indicate whether audit results will be recorded and retained
in station and inspector files, whether records are of sufficient
detail to support civil and administrative hearings, whether stations
and inspectors suspected of violating program regulations will be
audited more frequently, or whether covert auditors will be rotated. By
its letter dated May 19, 1994, the state commits to addressing these
points by August 19, 1994. The state has assured EPA that all required
training elements are included in the auditor training program and that
this will be detailed in the SIP submission of August 19, 1994.
N. Enforcement Against Contractors, Stations and Inspectors
Under EPA's I/M rule, the SIP must include the penalty schedule and
the legal authority for establishing and imposing penalties, civil
fines, license suspension, and revocations. In the case of state
constitutional impediments to immediate suspension authority, the state
Attorney General must furnish an official opinion for the SIP
explaining the constitutional impediment as well as relevant case law.
Also, the SIP must describe the administrative and judicial procedures
and responsibilities relevant to the enforcement process, including
which agencies, courts, and jurisdictions are involved; who will
prosecute and adjudicate cases, and other aspects of the enforcement
program. In addition, the SIP must describe the resources to be
allocated to this enforcement function and the source of funding for
such resources. In states without immediate suspension authority, the
SIP needs to 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 New Hampshire I/M SIP includes specific penalties in its
enforcement against contractors, stations and inspectors in accordance
with EPA's I/M rule. The SIP includes the State's enforcement
procedures which can be pursued through either contract provisions or
Section 16 of the NH Enhanced I/M Rules. The NHDOS has the authority to
immediately suspend a station inspector for violations that directly
affect emission reduction benefits. Legal authority for establishing
and imposing penalties, civil fines, license suspension, and
revocations are contained in the New Hampshire Chapter 353 of the Laws
of 1993, and Enhanced Emissions Inspection and Maintenance Program
Rules (NHDOS). In addition, contractual enforcement mechanisms are
contained in the RFP. As discussed in the I/M SIP in Section M. NHDOS
referees will spend 20 hours per week in each inspection station.
NH Enhanced I/M Rule, Section 16 does not require imposition of
substantial penalties as required by EPA's I/M rule (six month
suspension) or equivalent retainage on the first offense by inspectors
for violations that directly affect emission reduction benefits.
Section M. of the New Hampshire narrative indicates that mandatory
retraining will be required of inspectors for violations, however, this
is not stated in the regulation. In its letter to EPA dated June 28,
1994 New Hampshire stated that mandatory retraining will be a
requirement of the contract, and that Section 16 will be revised to be
consistent with the penalty required by the EPA rule. The state commits
to submitting the revision to Section 16 by July 29, 1995. This part of
the New Hampshire SIP provides another basis for EPA's proposal of a
conditional approval of this SIP revision.
O. Data Analysis and Reporting
Under EPA's I/M rule, the SIP must describe the types of data to be
collected.
The New Hampshire I/M SIP narrative, Section O, and Section 18 of
the NH Enhanced I/M Rule provides for collecting data required by EPA
regulation and submitting required reports.
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 New Hampshire I/M SIP provides for the implementation of
training, certification, and refresher programs for emission
inspectors. The SIP describes this program and curriculum, including
written and hands-on testing required at least every two years. All
inspectors will be required to be certified to inspect vehicles in the
New Hampshire I/M program. In the letter of May 19, 1994, New Hampshire
describes the written and hands-on tests, how they will be developed,
and how the State will audit contractor administered tests.
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.
The New Hampshire SIP includes a description of the technical
assistance, performance monitoring and repair technician training
programs to be implemented. The State did not specify a mechanism to
regularly inform repair facilities regarding changes to the inspection
program, training course schedules, common problems, potential
solutions for particular engine families, diagnostic tips, repairs, and
other assistance issues. In a letter dated May 19, 1994 the state
agreed to provide a plan to EPA by August 19, 1994 that will provide
the means to transmit the above-referenced information to the repair
community. The NHDOS, as described in the SIP, will also ensure that a
repair technician hotline will be available for repair technicians.
Performance monitoring statistics of certified repair facilities will
be provided to motorists whose vehicles fail the I/M tests in enhanced
I/M areas. The State will also ensure that adequate repair technician
training exists through the establishment of an advisory workgroup.
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 vehicle recall lists
provided by EPA 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 NH RFP Section 6.9 requires the contractor to notify vehicle
owners of recalls in accordance with EPA requirements, NH Enhanced I/M
Rules Section 4.F.1.h., requires that vehicle owners whose vehicle is
included in an emission recall, comply with the recall requirement in
order to be inspected. Motorists with unresolved recall notices will be
required to show proof of compliance or will be denied the opportunity
for inspection. In the May 19, 1994 submission, New Hampshire explains
that the RFP requires tracking and verification of recall repairs. Such
data will include reference to the recall campaign number.
S. On-Road Testing
Under 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 already predicted to be achieved by
other aspects of the I/M program. The SIP must include technical
support for the claimed additional emission reductions.
The New Hampshire I/M SIP includes a description of its on-road
testing program. The testing program will include no less than 0.5% of
the subject vehicles as required by Section 9 of the NH Enhanced I/M
Rules. The program will be included as part of the testing contract and
the contractor will provide data collection analysis and utilize this
data to identify high emitting vehicles. The state has not established
standards for this program or identified the type of testing that will
be conducted. The legal authority for this program is contained in the
New Hampshire I/M Chapter 353 of the Laws of 1993. In a letter dated
May 19, 1994, the state commits to develop and submit standards to EPA.
The state commits to submitting this revision by July 29, 1995. This
part of the New Hampshire SIP provides the third basis for EPA's
proposal of a conditional approval of this SIP revision.
T. Concluding Statement
A more detailed analysis of the State's I/M SIP submittal and how
it meets the Federal requirements is contained in the EPA's technical
support document dated June 28, 1994, which is available from the EPA-
New England Regional office listed above. The criteria used to review
the SIP revision submitted are based on the requirements of Section 182
of the CAA and EPA's I/M regulations. Based on these requirements, EPA
developed a detailed I/M approvability checklist to be used nationally
to assist in determining whether I/M programs meet the requirements of
the CAA and the federal I/M rule. The checklist is formatted by stating
the Federal requirement by each section, and followed by information
indicating whether or not the New Hampshire program meets the criteria
and where in the New Hampshire SIP submittal the requirements are
addressed. This checklist, the CAA and EPA's I/M regulations formed the
basis for EPA's technical review. EPA has reviewed the I/M SIP revision
submitted by New Hampshire. Using the criteria stated above, the New
Hampshire regulations and accompanying materials contained in the SIP
represent an acceptable plan to comply with the I/M requirements and
meet all the criteria required for conditional approval of such SIP
revision.
IV. New Hampshire I/M Committal SIP
On September 27, 1993, EPA proposed conditional approval of the New
Hampshire I/M committal SIP submitted on January 12, 1993, including a
schedule for implementation of the program. At that time, EPA believed
that conditional approvals were appropriate for I/M committal SIPs
because the States could not be expected to begin developing an I/M
program meeting the requirements of the CAA and the I/M regulations
until the I/M regulations were adopted as a final rule which occurred
on November 5, 1992. In a letter dated October 21, 1993, the Natural
Resource Defense Council (NRDC) commented on the proposed approval of
the committal SIP arguing that States should have submitted full I/M
SIPs by November 15, 1992. In addition, in a Court order dated May 6,
1994, the United States Circuit Court of Appeals for the District of
Columbia concluded, in the context of an NRDC lawsuit concerning I/M,
that EPA's acceptance of I/M committal SIPs was contrary to law and
improperly delayed SIP submissions beyond the statutory deadlines.
Further, the Court directed EPA to review and either approve or
disapprove by no later that September 15, 1994 all I/M SIPs already
received. As a result of that court order, EPA is taking this action on
the New Hampshire SIP submitted on March 1, 1994, April 20, 1994, April
28, 1994, May 19, 1994, and June 28, 1994 and will not be taking
further action on the ``committal'' I/M SIP submitted by the State of
New Hampshire on January 12, 1993.
The conditional approval proposed today is based upon New
Hampshire's commitment to develop and submit on-road testing standards,
compliance via diagnostic procedures, and revised inspector penalties
by July 29, 1995. If this commitment is not met, the conditional
approval will convert to a disapproval. In the alternative, EPA
proposes to disapprove the New Hampshire I/M SIP revision if the
submittals described in this package are not revised by August 19, 1994
or are incomplete.
Proposed Action
EPA is proposing to conditionally approve or in the alternative
disapprove New Hampshire's enhanced inspection and maintenance SIP.
Pursuant to Section 110(k)(4) of the Act, the conditional approval
is based on the commitment articulated by New Hampshire in its May 19,
1994 and June 28, 1994 letters to submit a revised SIP revision by July
29, 1995, that complies with the requirements for on-road testing,
compliance via diagnostic inspection, and inspector penalties. Section
110(k)(4) of the CAA provides that, if a state fails to comply with its
commitment, such conditional approval will convert to a disapproval.
In the alternative, this action proposes to disapprove the New
Hampshire I/M SIP revision if New Hampshire does not adequately address
the issues articulated in this notice by on or before August 19, 1994.
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.)
The EPA requests comments on this proposal including the EPA's
proposal to conditionally approve or, in the alternative, disapprove
the I/M SIP for New Hampshire as meeting the requirements of the CAA
and EPA's Federal I/M rule. As indicated at the outset of this notice,
the EPA will consider any comments received by August 17, 1994 and will
make the TSD available upon request. EPA will also consider any
comments received by on or before August 29, 1994 regarding the
information specified herein that is due by August 19, 1994 from New
Hampshire.
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 notice will inform the general public of
these tables.
Under 5 U.S.C. Section 605(b), the Administrator certifies that SIP
approvals under Sections 107, 110 and 172 of the Clean Air Act will not
have a significant economic impact on a substantial number of small
entities. SIP approvals (or redesignations) do not create any new
requirements but simply approve requirements that are already state
law. SIP approvals (or redesignations), therefore, do not add any
additional requirements for small entities. Moreover, due to the nature
of the Federal-State relationship under the Clean Air Act, preparation
of a flexibility analysis for a SIP approval would constitute Federal
inquiry into the economic reasonableness of the State actions. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. EPA., 427 U.S. 246, 96 S. Ct. 2518
(1976); 42 U.S.C. Section 7410(a)(2).
If EPA issues a final disapproval or if the conditional approval is
converted to a disapproval under section 110(k), based on the state's
failure to meet the commitment, it will not affect any existing state
requirements applicable to small entities. Federal disapproval of the
state submittal does not affect its state-enforceability. Moreover,
EPA's disapproval of the submittal does not impose a new federal
requirement. Therefore, EPA certifies that in the event EPA disapproves
the state submittal, this disapproval action would not have a
significant impact on a substantial number of small entities because it
would not remove existing state requirements nor does it substitute a
new federal requirement.
Under Executive Order 12866, [58 FR 51735 (October 4, 1993)] the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
The Administrator's decision to approve or disapprove the SIP
revision will be based on whether it meets the requirements of Section
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, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7642.
Dated: June 27, 1994.
John P. DeVillars,
Regional Administrator, Region I.
[FR Doc. 94-17375 Filed 7-15-94; 8:45 am]
BILLING CODE 6560-50-P
