[Federal Register Volume 63, Number 170 (Wednesday, September 2, 1998)]
[Rules and Regulations]
[Pages 46664-46668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23324]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[PA 119-4074a; FRL-6148-3]
Approval and Promulgation of Air Quality Implementation Plans;
Commonwealth of Pennsylvania; Enhanced Motor Vehicle Inspection and
Maintenance Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: This action serves to remove several conditions of EPA's
January 28, 1997 interim final approval of the Commonwealth of
Pennsylvania's State Implementation Plan (SIP) revision for its
enhanced motor vehicle emissions inspection and maintenance (I/M)
program. The Commonwealth has amended its SIP (since EPA granted
conditional interim approval of that plan) to address these
deficiencies. EPA is removing these conditions by approving two related
SIP revisions submitted by Pennsylvania. These revisions serve to
bolster the Commonwealth's I/M SIP, and to strengthen its I/M program.
The intended effect of this action is to remove several conditions
placed by EPA upon the approval of the Commonwealth's SIP. However, as
Pennsylvania has yet to address several other outstanding rulemaking
conditions on this same SIP, the Commonwealth's I/M SIP will continue
to be conditionally approved, in accordance with the Clean Air Act,
until the Commonwealth satisfies the remaining conditions.
DATES: This direct final rule is effective on November 2, 1998 without
further notice, unless EPA receives adverse comment by October 2, 1998.
If adverse comment is received, EPA will publish a timely withdrawal of
the direct final rule in the Federal Register informing the public that
the rule will not take effect.
ADDRESSES: Comments should be mailed to Marcia Spink, Associate
Director, Office of Air Programs, Mailcode 3AP20, U.S. Environmental
Protection Agency, Region III, 1650 Arch Street, Philadelphia,
Pennsylvania 19103. Copies of the documents relevant to this action are
available for public inspection during normal business hours at the Air
Protection Division, U.S. Environmental Protection Agency, Region III,
1650 Arch Street--14th Floor, Philadelphia, Pennsylvania 19103; and at
the Pennsylvania Department of Environmental Protection, Bureau of Air
Quality, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania
17105.
FOR FURTHER INFORMATION CONTACT: Brian Rehn, (215) 814-2176, or by e-
mail at rehn.brian@epamail.epa.gov.
SUPPLEMENTARY INFORMATION:
Background
On January 28, 1997, EPA published in the Federal Register a
document (62 FR 4004) granting conditional interim approval to
Pennsylvania's enhanced I/M program SIP (submitted March 22, 1996)--
under the authority of both the National Highway Systems Designation
Act of 1995, and the Clean Air Act as amended in 1990. The NHSDA
established key changes to previous EPA I/M requirements. Under the
NHSDA, EPA could not disapprove, or automatically discount the
effectiveness of, a state's I/M program solely because it utilized a
decentralized testing network. Instead, on the basis of a ``good faith
estimate'' by a state, the NHSDA allowed for presumptive equivalency of
such decentralized networks to the benchmark of centralized programs.
Under the NHSDA, EPA was to grant ``interim'' approval of such
decentralized programs, for an 18-month period, at the end of which the
state is required to submit an evaluation of the actual effectiveness
of the enhanced program.
In Pennsylvania's case, EPA granted interim approval of the
enhanced I/M program SIP, but also conditioned approval of that SIP
upon the satisfaction of five major deficiencies, and fourteen minor,
or de minimus, deficiencies. EPA's January 28, 1997 interim conditional
approval stipulated that the five major conditions were to be corrected
within one year of approval, and that the de minimus conditions be
addressed within eighteen months of approval. On January 9, 1998, EPA
published (63 FR 1362) a final rule amending federal I/M requirements
for ongoing evaluation methodologies for state I/M programs--one of the
major deficiencies of Pennsylvania's program identified by EPA in its
January 1998 interim conditional approval. EPA's I/M requirements rule
change also served to amend the related condition of the Commonwealth's
approval. As a result, the deadline for the Commonwealth to satisfy
this condition was extended from February of 1998 to November 30, 1998.
The NHSDA effectiveness demonstration described previously is also
due at the end of the 18-month NHSDA, interim approval period. The
Commonwealth's interim approval period granted under authority of the
NHSDA expires on August 28, 1998.
Status of I/M Program SIP Revisions
On November 13, 1997 and on February 24, 1998, the Commonwealth of
Pennsylvania submitted formal revisions to its State Implementation
Plan (SIP). These November 13, 1997 SIP revisions consist of
Pennsylvania's revised, final I/M program regulations, as well as
supporting information and materials. The February 24, 1998 SIP
revision contains updated emissions benefit computer modeling to
demonstrate that Pennsylvania's program meets federal performance-based
standards for enhanced I/M programs. Both SIP revisions are intended to
partially satisfy ``major'' and ``minor'', or de minimus, deficiencies
identified by EPA in its January 28, 1997 interim conditional approval
of the Commonwealth's March 22, 1996 I/M program SIP submittal.
EPA views the November 13, 1997 and the February 24, 1998 SIP
revisions as separate, independent SIP amendments from the enhanced I/M
SIP revision submitted on March 22, 1996. While these two more recent
SIP revisions are related to the March 1996 enhanced I/M SIP revision
submitted by the Commonwealth, they serve to supplement and to
strengthen the Commonwealth's enhanced I/M program SIP--not to replace
it. EPA is today acting only upon the November
[[Page 46665]]
1997 and the February 1998 SIP revisions submitted by the Commonwealth
to satisfy certain deficiencies of its conditionally approved enhanced
I/M plan, and in so doing EPA is not reopening its January 27, 1997
final rulemaking granting conditional interim approval of the
Commonwealth's enhanced I/M SIP submitted on March 22, 1996.
Since at the time of this rulemaking action, the Commonwealth has
not yet addressed all of the outstanding deficiencies, nor has it
submitted its NHSDA I/M network effectiveness demonstration, EPA cannot
grant full interim approval at this time. That effectiveness
demonstration is not due until August 28, 1998. Therefore, the
Commonwealth's I/M SIP revision cannot receive full approval, and
instead must maintain a form of conditional interim approval. The
Commonwealth has indicated that it will submit its NHSDA effectiveness
demonstration and a revision to address all remaining EPA-identified
deficiencies prior to August 28, 1998. EPA will act upon those
submittals in a separate, later rulemaking action.
Summary of Subject I/M SIP Revisions
The November 13, 1997 SIP revision that is the subject of today's
action contains Pennsylvania's enhanced I/M program regulations for all
applicable areas of the Commonwealth, as well as supporting information
provided to bolster and to better document the conditionally approved
March 1996 I/M SIP submission. The regulations were revised, in part,
to address deficiencies identified in EPA's January 1997 interim
conditional approval of the plan. The supporting information in the
November 1997 SIP revision also includes additional information for the
Commonwealth's demonstration of the adequacy of windshield stickers as
a means to ensure motorist compliance with the enhanced I/M program. In
addition, a Pennsylvania Bulletin notice certifying the list of
counties subject to enhanced I/M that would commence enhanced testing
October 1, 1997 was included as part of that SIP revision. Also
included, was a description of the Commonwealth's emissions waiver
program, as well as a description of the Commonwealth's plan for
providing consumers general information on the program and on the
effectiveness of repair facilities in performing emissions-related
repairs.
The February 24, 1998 SIP amendment contain's Pennsylvania's
modeling demonstration, which shows that its enhanced I/M programs (for
each subject I/M program area) will achieve the desired emissions
benefits by meeting federal performance-based standards.
These two SIP revisions fully satisfy four of the five ``major''
conditions and seven of the fourteen de minimus conditions identified
by EPA in its January 28, 1997 interim conditional approval of the
Commonwealth's enhanced I/M program.
The conditions that EPA has placed upon its interim approval of
Pennsylvania's SIP are codified at 40 CFR 52.2026. Those conditions
which the Commonwealth has satisfied in its November 1997 and February
1998 SIP revisions are detailed below. This includes the following
``major'' conditions:
(1) By no later than September 15, 1997, a notice must be published
in the Pennsylvania Bulletin by the Secretary of the Pennsylvania
Department of Transportation which certifies that the enhanced I/M
program is required in order to comply with federal law and also
certifies the geographic areas which are subject to the enhanced I/M
program (the geographic coverage must be identical to that listed in
Appendix A-1 of the March 22, 1996 SIP submittal), and certifies the
commencement date of the enhanced I/M program;
(2) The Commonwealth must submit to EPA as a SIP amendment, by
November 30, 1998, the final Pennsylvania I/M program evaluation plan
requiring an approved alternative sound evaluation methodology to be
performed on a minimum of 0.1 percent of the subject fleet each year as
per 40 CFR 51.353(c)(3) and which meets the program evaluation elements
as specified in 40 CFR 51.353(c). [Note: The Commonwealth submitted, in
the November 13, 1997 SIP revision submittal, amendments to its
enhanced I/M regulation requiring that the ongoing evaluation of its
program be conducted as specified, above. By November 30, 1998, the
Commonwealth must submit its actual program evaluation plan including
the specific EPA-approved methodology it will use to conduct the
ongoing program evaluation required under its I/M regulation. Submittal
of that program evaluation plan is necessary to satisfy this condition
fully.]
(3) By no later than November 15, 1997, the Commonwealth must
submit a demonstration to EPA as an amendment to the SIP that meets the
requirements of 40 CFR 51.361 (b)(1) and (b)(2) and demonstrates that
Pennsylvania's existing sticker enforcement system is more effective
than registration denial enforcement;
(4) Within twelve months of EPA's final interim rulemaking action,
Pennsylvania must adopt and submit a final Pennsylvania I/M regulation
which requires and which specifies the following: exhaust test
procedures, standards, and equipment specifications; and evaporative
system functional test methods, standards and procedures; a visual
inspection procedure for determining the presence of or tampering with
of vehicle emission control devices; and a repair technician training
and certification (TTC) program. The test methods and procedures
established under the Commonwealth's I/M regulation must be acceptable
to EPA, as well as to the Commonwealth. The test methods and standards
provided for by the Commonwealth's final regulation must reflect the
modeling assumptions found in the Commonwealth's final performance
standard modeling demonstration (which must satisfy the requirements of
40 CFR 51.351). Within the same time frame, detailed test equipment
specifications and standards (which are acceptable to EPA, as well as
to the Commonwealth) for all of the I/M evaporative and exhaust tests
provided for by the Commonwealth's regulation (as described above) must
be finalized and submitted as a SIP revision to EPA; and
(5) The Commonwealth must perform the final modeling demonstration
that its program will meet the relevant enhanced performance standard
and submit it to EPA, within twelve months of EPA's final interim
rulemaking.
In addition to the above conditions for approval, the EPA required
the Commonwealth to correct fourteen minor, or de minimus deficiencies,
related to approval of the enhanced I/M program. EPA required that
these ``minor'' deficiencies be corrected prior to the end of the 18-
month interim period granted to the Pennsylvania enhanced I/M SIP under
the National Highway Safety Designation Act of 1995. The de minimus
conditions that Pennsylvania satisfied in its November 1997 and
February 1998 submittals are all detailed below and include:
(1) This condition has not yet been addressed. To be addressed in a
future SIP submittal, expected by August, 1998;
(2) The definition of light duty truck in the definitions section
of the final Pennsylvania I/M regulation must provide for coverage up
to 9,000 pounds GVWR;
(3) The final Pennsylvania I/M regulation must require
implementation of the final full stringency emission standards at the
beginning of the second
[[Page 46666]]
test cycle so that the state can obtain the full emission reduction
program credit prior to the first program evaluation date;
(4) The final Pennsylvania I/M regulation must require a real-time
data link between the state or contractor and each emission inspection
station as per 40 CFR 51.358(b)(2);
(5) This condition has not yet been addressed. To be addressed in a
future SIP submittal, expected by August, 1998;
(6) The Pennsylvania I/M regulation must only allow the
Commonwealth or a single contractor to issue waivers as per 40 CFR
51.360(c)(1);
(7) This condition has not yet been addressed. To be addressed in a
future SIP submittal, expected by August, 1998;
(8) This condition has not yet been addressed. To be addressed in a
future SIP submittal, expected by August, 1998;
(9) This condition has not yet been addressed. To be addressed in a
future SIP submittal, expected by August, 1998;
(10) This condition has not yet been addressed. To be addressed in
a future SIP submittal, expected by August, 1998;
(11) The final Pennsylvania I/M regulation must require that
emissions inspectors complete a refresher training course or pass a
comprehensive skill examination prior to being recertified and the
final SIP revisions must include a commitment that the Commonwealth
will monitor and evaluate the inspector training program delivery, per
the requirements of 40 CFR 51.367;
(12) The final I/M SIP submittal must include a RFP, or other
legally binding document, which adequately addresses how the
Commonwealth's selected contractor will comply with the public
information requirements of 40 CFR 51.368;
(13) The Pennsylvania I/M regulation must include provisions that
meet the requirements of 40 CFR 51.368(a) and 51.369(b) for a repair
facility performance monitoring program plan and for providing the
motorist with diagnostic information based on the particular portions
of the test that were failed; and
(14) This condition has not yet been addressed. To be addressed in
a future SIP submittal, expected by August, 1998.
EPA has reviewed the Commonwealth's SIP revisions and determined
that they address the above conditions. EPA's detailed review is
contained in the technical support document (TSD) it prepared in
support of this rulemaking action. The TSD is available, upon request,
from the EPA Regional Office listed in the ADDRESSES section of this
document. EPA is approving the Commonwealth's November 13, 1997 and
February 24, 1998 SIP submittals as having satisfied those conditions
set forth above. The purpose of this approval action is to remove
certain conditions EPA had placed upon the Commonwealth's SIP, which
have been addressed by subsequent SIP revisions. EPA is therefore
removing these conditions from EPA's conditional interim approval of
the Pennsylvania I/M SIP.
EPA is approving these SIP revisions without prior proposal because
the Agency views this as a non-controversial SIP amendment and
anticipates no adverse comments on this rulemaking action. However, in
the proposed rules section of this Federal Register publication, EPA is
publishing a separate document that will serve as the proposal to
approve the SIP revision should adverse or critical comments related to
today's rulemaking be filed. This rule will be effective November 2,
1998 without further notice unless the Agency receives adverse comments
by October 2, 1998.
If EPA receives such comments, then EPA will publish a timely
withdrawal of the direct final rule informing the public that the rule
will not take effect. All public comments received will then be
addressed in a subsequent final rule based on the proposed rule. EPA
will not institute a second comment period on this rule. Only parties
interested in commenting on this action should do so at this time. If
no such comments are received, the public is advised that this rule
will be effective on November 2, 1998 and no further action will be
taken on the proposed rule.
Final Action
EPA is approving the Commonwealth's November 13, 1997 and February
24, 1998 SIP submittals as having fully satisfied four major conditions
and seven de minimus conditions identified by EPA in its January 28,
1997 interim conditional approval of the Pennsylvania enhanced I/M SIP
[62 FR 4004]. Upon approval of these SIP revisions, there will still
remain one major, and seven minor conditions on EPA's interim approval
of the Commonwealth's enhanced I/M program SIP. Therefore, EPA is
maintaining conditional interim approval of the Commonwealth's SIP,
until Pennsylvania addresses all remaining deficiencies and submits a
enhanced I/M program network effectiveness demonstration, as required
under authority of the National Highway Systems Designation Act of
1995.
For the purpose of clarity and to avoid confusion over the
remaining conditions upon interim approval of Pennsylvania's plan, EPA
is removing those conditions from 40 CFR 52.2026 which have been
satisfied by the Commonwealth's November 1997 and February 1998 SIP
revisions. EPA is reserving the sections of 40 CFR 52.2026 that
correspond to these conditions, so as not to renumber the outstanding
conditions of approval listed in that section. The list of remaining
conditions upon interim approval of Pennsylvania's enhanced I/M SIP
will now read as follows:
``Major'' Conditions
(1)
(2) The Commonwealth must submit to EPA as a SIP amendment, by
November 30, 1998, the final Pennsylvania I/M program evaluation plan
requiring an approved alternative sound evaluation methodology to be
performed on a minimum of 0.1 percent of the subject fleet each year as
per 40 CFR 51.353(c)(3) and which meets the program evaluation elements
as specified in 40 CFR 51.353(c). The Commonwealth submitted, in the
November 13, 1997 SIP revision submittal, amendments to its enhanced I/
M regulation requiring that the ongoing evaluation of its program be
conducted as specified, above. By November 30, 1998, the Commonwealth
must submit its actual program evaluation plan including the specific
EPA-approved methodology it will use to conduct the ongoing program
evaluation required under its I/M regulation.
(3)
(4)
(5)
``Minor''/De Minimus Conditions
(1) The final I/M SIP submittal must detail the number of personnel
and equipment dedicated to the quality assurance program, data
collection, data analysis, program administration, enforcement, public
education and assistance, on-road testing and other necessary functions
as per 40 CFR 51.354;
(2)
(3)
(4)
(5) The final I/M SIP submittal must provide quality control
requirements for one-mode ASM (or two-mode ASM if the Commonwealth opts
for it);
(6)
(7) The final I/M SIP submittal must include the RFP, or other
legally
[[Page 46667]]
binding document, which adequately addresses how the private vendor
selected to perform motorist compliance enforcement responsibilities
for the Commonwealth's program will comply with the requirements, as
per 40 CFR 51.362;
(8) The final I/M SIP submittal must include the RFP that
adequately addresses how the private vendor will comply with 40 CFR
51.363, a procedures manual which adequately addresses the quality
assurance program and a requirement that annual auditing of the quality
assurance auditors will occur as per 40 CFR 51.363(d)(2);
(9) The final I/M SIP submittal must include provisions to maintain
records of all warnings, civil fines, suspensions, revocations,
violations and penalties against inspectors and stations, per the
requirements of 40 CFR 51.364;
(10) The final I/M SIP submittal must include a RFP, or other
legally binding document, which adequately addresses how the private
vendor selected by the Commonwealth to perform data collection and data
analysis and reporting will comply with all the requirements of 40 CFR
51.365 and 51.366; and
(11)
(12)
(13)
(14) The final I/M SIP submittal must contain sufficient
information to adequately address the on-road test program resource
allocations, methods of analyzing and reporting the results of the on-
road testing and information on staffing requirements for both the
Commonwealth and the private vendor for the on-road testing program.
Nothing in EPA's rulemaking 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 SIP shall be considered separately in light of specific
technical, economic, and environmental factors and in relation to
relevant statutory and regulatory requirements.
I. Administrative Requirements
A. Executive Orders 12866 and 13045
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866 review. The final rule is not subject
to E.O. 13045, entitled ``Protection of Children from Environmental
Health Risks and Safety Risks,'' because it is not an ``economically
significant'' action under E.O. 12866.
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 approval of a SIP submittal under section 110 and
subchapter I, part D of the CAA does not create any new requirements
but simply approve requirements that a state is already imposing.
Therefore, because the federal SIP approval does not impose any new
requirements, EPA certifies 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 a
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.
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
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 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
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit 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 United States prior
to publication of the rule in the 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 direct final approval action for Pennsylvania's
enhanced I/M SIP revision must be filed in the United States Court of
Appeals for the appropriate circuit by November 2, 1998. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule pertaining to the
Pennsylvania enhanced I/M SIP 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).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.
Dated: August 11, 1998.
Thomas C. Voltaggio,
Acting Regional Administrator, EPA Region III.
40 CFR Part 52 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 et seq.
Subpart NN--Pennsylvania
2. Section 52.2026 is amended by removing and reserving paragraphs
[[Page 46668]]
(a)(1), (3), (4), and (5), and paragraphs (b)(2), (3), (4), (6), (11),
(12), and (13).
3. Section 52.2026 is further amended by adding the following two
sentences at the end of paragraph (a)(2):
Sec. 52.2026 Conditional approval.
* * * * *
(a) * * *
(2) * * * The Commonwealth submitted, in a November 13, 1997 SIP
revision submittal, amendments to its enhanced I/M regulation requiring
that the ongoing evaluation of its program be conducted as specified in
this paragraph. By November 30, 1998, the Commonwealth must submit its
actual program evaluation plan including the specific EPA-approved
methodology it will use to conduct the ongoing program evaluation
required under its I/M regulation.
[FR Doc. 98-23324 Filed 9-1-98; 8:45 am]
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