[Federal Register Volume 62, Number 134 (Monday, July 14, 1997)]
[Rules and Regulations]
[Pages 37506-37510]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18407]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MA014-01-7195; A-1-FRL-5847-2]
Approval and Promulgation of Air Quality Implementation Plans;
Commonwealth of Massachusetts; Enhanced 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 Massachusetts. This
revision establishes and requires the implementation of an enhanced
inspection and maintenance (I/M) program statewide in Massachusetts.
The intended effect of this action is to conditionally approve the
Commonwealth's proposed enhanced
I/M program for an interim period to last 18 months, based upon the
Commonwealth's good faith estimate of the program's performance. This
action is being taken under section 110 of the Clean Air Act and
section 348 of the National Highway Systems Designation Act.
EFFECTIVE DATE: This final rule is effective on August 13, 1997.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours, by
appointment at the Office of Ecosystem Protection, U.S. Environmental
Protection Agency, Region I, One Congress Street, 11th floor, Boston,
MA; Air and Radiation Docket and Information Center, U.S. Environmental
Protection Agency, 401 M Street, SW., (LE-131), Washington, DC 20460;
Division of Air Quality Control, Department of Environmental
Protection, One Winter Street, 8th Floor, Boston, MA 02108.
FOR FURTHER INFORMATION CONTACT: Peter Hagerty, by telephone at: (617)
[[Page 37507]]
565-3571, or at the above EPA Region I address.
SUPPLEMENTARY INFORMATION:
I. Table of Contents
I. Table of Contents
II. Background
III. Public Comments/Response to Comments
IV. Final Rulemaking Action
V. Conditional Interim Approval
VI. Further Requirements for Permanent I/M SIP Approval
VII. Administrative Requirements
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Unfunded Mandates Act
D. Submission to Congress & the General Accounting Office
E. Petitions for Judicial Review
II. Background
On January 30, 1997 (62 FR 4505), EPA published a notice of
proposed rulemaking (NPR) for the Commonwealth of Massachusetts. The
NPR proposed conditional interim approval of Massachusetts' enhanced
inspection and maintenance program, submitted to satisfy the applicable
requirements of both the Clean Air Act (CAA) and the National Highway
Systems Designation Act (NHSDA). The formal SIP revision was submitted
by the Massachusetts Department of Environmental Protection on March
27, 1996. Supplemental information was submitted by letters dated
September 17, 1996, November 21, 1996, and November 27, 1996.
The NHSDA directs EPA to grant interim approval for a period of 18
months to approvable I/M submittals under this Act. The NHSDA also
directs EPA and the states to review the interim program results at the
end of that 18-month period, and to make a determination as to the
effectiveness of the interim program. Following this demonstration, EPA
will adjust any credit claims made by the state in its good faith
effort, 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 Congress intended for these programs to start up as soon as
possible, which EPA believes should be on or before November 15, 1997,
so that at least six months of operational program data can be
collected to evaluate the interim 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 the Commonwealth fails to start
its program according to this schedule, this conditional interim
approval granted under the provisions of the NHSDA will convert to a
disapproval after a finding letter is sent to the state. Unlike the
other specified conditions of this rulemaking, which are explicit
conditions under section 110(k)(4) of the CAA and which will trigger an
automatic disapproval should the Commonwealth fail to meet its
commitments, the start date provision will only trigger a disapproval
upon EPA's notification to the Commonwealth by letter that the start
date has been missed. This letter will not only notify the Commonwealth
that this rulemaking action has been converted to a disapproval, but
also that the sanctions clock associated with this disapproval has been
triggered as a result of this failure. Because the start date condition
is not imposed pursuant to a commitment to correct a deficient SIP
under section 110(k)(4), EPA does not believe it is necessary to have
the SIP approval convert to a disapproval automatically if the start
date is missed. EPA is imposing the start date condition under its
general SIP approval authority of section 110(k)(3), which does not
require automatic conversion.
EPA recognizes Massachusetts' intent to start-up the program on or
prior to November 15, 1997, but no later than January 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 this process
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 366. EPA believes 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 conditional interim rulemaking
will expire on February 16, 1999. A full approval of Massachusetts'
final I/M SIP revision (which will include the Commonwealth's program
evaluation and final adopted state regulations) is still necessary
under section 110 and under sections 182, 184 and 187 of the CAA. After
EPA reviews the Commonwealth's submitted program evaluation and
regulations, final rulemaking on the Commonwealth's full SIP revision
will occur.
Specific requirements of the Massachusetts enhanced I/M SIP and the
rationale for EPA's proposed action are explained in the NPR and will
not be restated here.
III. Public Comments/Response to Comments
No public comments were received with regard to this document
during the comment period.
IV. Final Rulemaking Action
EPA is conditionally approving the enhanced I/M program as a
revision to the Massachusetts SIP, based upon certain conditions. This
conditional approval satisfies the requirements of section 182(c)(3)
and the NHSDA for an enhanced I/M program. EPA also clarifies its
proposal to approve the SIP under section 110 as well. For the purposes
of strengthening the SIP, EPA is also giving a limited approval under
section 110 if the state fulfills all of its commitments within 12
months of this final rulemaking. This limited approval under section
110 will not expire at the end of the 18 month interim period. Thus,
although an approved I/M SIP satisfying the requirements of section
182(c)(3) may no longer be in place after the termination of the
interim SIP approval period provided by the NHSDA, this program will
remain a part of the federally enforceable SIP.
Should the Commonwealth fail to fulfill the conditions, other than
the start date condition which will be treated as described above, by
the deadlines contained in each condition, the latest of which is no
more than one year after the date of EPA's final interim approval
action, 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 Commonwealth that the conditions had not
been met and that the approval had converted to a disapproval starting
the sanctions clock.
V. Conditional Interim Approval
Under the terms of EPA's January 30, 1997 proposed interim
conditional approval rulemaking, the Commonwealth was required to make
commitments (within 30 days) to remedy major deficiencies with the I/M
program SIP (as specified in the NPR), within twelve months of final
interim approval. On March 3, 1997, Massachusetts submitted a letter
from David B. Struhs, Commissioner of the Massachusetts Department of
Environmental Protection, to EPA committing to satisfy the major
deficiencies cited in the NPR, by dates
[[Page 37508]]
certain specified in the letter. Since EPA is in receipt of the
Commonwealth's commitments, EPA is today taking final conditional
approval action upon the Massachusetts I/M SIP, under section 110 of
the CAA. As discussed in detail later in this document, this approval
is being granted on an interim basis, for an 18-month period under
authority of the NHSDA.
The conditions for approvability of the SIP as described in the
proposal are as follows:
(1) The Commonwealth, must revise and submit to EPA, by April 1,
1997, a complete revised 15% plan utilizing appropriate I/M waiver,
compliance rates, test type and the phase-in emission standards which
will be used in November 1997 (i.e. ASM2 emission credits with phase in
cut points.) This submittal was made on March 30, 1997 and is being
proposed for interim approval elsewhere in today's Federal Register.
Therefore, Massachusetts has met this condition.
(2) The time extension program as described and committed to in the
March 3, 1997 letter from Massachusetts must be further defined to meet
the requirements of 51.360 (Waivers and Compliance via Diagnostic
Inspection) and must be submitted to EPA as a SIP revision by a date no
later than one year after the effective date of this interim approval.
Another program which meets the requirements of 40 CFR 51.360 and
provides for no more than a 1% waiver rate would also be approvable.
(3) Other major deficiencies as outlined in the proposal must also
be corrected to achieve the requirements of 40 CFR 51.351 (Enhanced IM
Performance Standard), 51.354 (Adequate Tools and Resources),
Sec. 51.357 (Test Procedures and Standards), Sec. 51.359 (Quality
Control), and Sec. 51.363 (Quality Assurance). The Commonwealth, in a
letter dated March 3, 1997 committed to correct these deficiencies by a
date certain within one year of conditional interim approval by EPA.
The preamble to the NPR under Section III. ``Discussion for
Rulemaking Action'' paragraph (2) inadvertently listed Motorist
Compliance Enforcement under 40 CFR 51.361 as a major deficiency. See
62 FR at 4513, col. 2, (Jan. 30, 1997). As discussed in the section by
section analysis in the proposal earlier in the preamble, Massachusetts
addressed the major problem under section 51.361 in a letter dated
November 27, 1996 by revising the compliance rate to 96% rather than
98%. See 62 FR at 4511, col. 3. Under the Proposed Action in the NPR,
this section is correctly not listed as a major deficiency. See 62 FR
at 4514 col. 1. Massachusetts must submit additional information for
Sec. 51.361 prior to final action on this program, as specified in de
minimus condition #4, below.
In addition to the above conditions, the Commonwealth must correct
several minor, or de minimus, deficiencies related to CAA requirements
for enhanced I/M described below. Although satisfaction of these
deficiencies does not affect the conditional interim approval status of
the Commonwealth'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:
(1) The SIP lacks a detailed description of the program evaluation
element as required under 40 CFR 51.353;
(2) The SIP lacks a detailed description of the test frequency and
convenience element required under 40 CFR 51.355;
(3) The SIP lacks a detailed description of the number and types of
vehicles included in the program as required under 40 CFR 51.356;
(4) The SIP lacks detailed information concerning the enforcement
process, and a commitment to a compliance rate to be maintained in
practice required under 40 CFR 51.361;
(5) The SIP lacks the details of the enforcement oversight program
including quality control and quality assurance procedures to be used
to insure the effective overall performance of the enforcement system
as required under 40 CFR 51.362;
(6) The SIP lacks a detailed description of procedures for
enforcement against contractors, stations and inspectors as required
under 40 CFR 51.364;
(7) The SIP lacks a detailed description of data analysis and
reporting provisions as required under 40 CFR 51.366;
(8) The SIP lacks a public awareness plan as required by 40 CFR
51.368; and
(9) The SIP lacks provisions for notifying motorists of required
recalls prior to inspection of the vehicle as required by 40 CFR
51.370.
VI. Further Requirements for Permanent I/M SIP Approval
This approval is being granted on an interim basis for a period of
18 months, under the authority of section 348 of the National Highway
Systems Designation Act of 1995. At the end of this period, the
approval will lapse. At that time, EPA must take final rulemaking
action upon the Commonwealth's SIP, under the authority of section 110
of the Clean Air Act. Final approval of the Commonwealth's plan will be
granted based upon the following criteria:
(1) The Commonwealth has complied with all the conditions of its
commitment to EPA;
(2) EPA's review of the Commonwealth's program evaluation confirms
that the appropriate amount of program credit was claimed by the
Commonwealth and achieved with the interim program;
(3) Final program regulations are submitted to EPA; and
(4) The Commonwealth's I/M program meets all of the requirements of
EPA's I/M rule, including those de minimis deficiencies identified in
the January 30, 1997 proposal (62 FR 4505) and this rule as minor for
purposes of interim approval.
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
[[Page 37509]]
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 any 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 its 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
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
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA 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 September 12, 1997.
Filing a petition for reconsideration by the Administrator of this
final rule to conditionally approve the Massachusetts 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 Clean Air Act.)
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.
Dated: May 14, 1997.
John P. DeVillars,
Regional Administrator, Region I.
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. 7401-7671q.
Subpart W--Massachusetts
2. Section 52.1120 is amended by adding paragraph (c)(114) to read
as follows:
Sec. 52.1120 Identification of plan.
* * * * *
(c) * * *
(114) The Commonwealth of Massachusetts' March 27, 1996 submittal
for an enhanced motor vehicle inspection and maintenance (I/M) program,
as amended on June 27, 1996 and July 29, 1996, and November 1, 1996, is
conditionally approved based on certain contingencies, for an interim
period to last eighteen months. If the Commonwealth fails to start its
program according to schedule, or by November 15, 1997 at the latest,
this conditional approval will convert to a disapproval after EPA sends
a letter to the state. If the Commonwealth fails to satisfy the
following conditions within 12 months of this rulemaking, this
conditional approval will automatically convert to a disapproval as
explained under section 110(k) of the Clean Air Act.
(i) The conditions for approvability are as follows:
(A) The time extension program as described and committed to in the
March 3, 1997 letter from Massachusetts must be further defined and
submitted to EPA as a SIP revision by no later than one year after the
effective date of this interim approval. Another program which meets
the requirements of 40 CFR 51.360 (Waivers and Compliance via
Diagnostic Inspection) and provides for no more than a 1% waiver rate
would also be approvable.
(B) Other major deficiencies as described in the proposal must also
be corrected in 40 CFR 51.351 (Enhanced I/M Performance Standard),
Sec. 51.354 (Adequate Tools and Resources), Sec. 51.357 (Test
Procedures and Standards), Sec. 51.359 (Quality Control), and
Sec. 51.363 (Quality Assurance). The Commonwealth, committed in a
letter dated March 3, 1997 to correct these deficiencies within one
year of conditional interim approval by EPA.
(ii) In addition to the above conditions for approval, the
Commonwealth must correct several minor, or de minimus deficiencies
related to CAA requirements for enhanced I/M. Although satisfaction of
these deficiencies does not affect the conditional approval status of
the Commonwealth's rulemaking granted under the authority of section
110 of the Clean Air Act, these deficiencies must be corrected in the
final I/M SIP revision prior to the end of the 18-month interim period
granted under the National Highway Safety Designation Act of 1995:
(A) The SIP lacks a detailed description of the program evaluation
element as required under 40 CFR 51.353;
(B) The SIP lacks a detailed description of the test frequency and
convenience element required under 40 CFR 51.355;
(C) The SIP lacks a detailed description of the number and types of
vehicles included in the program as required under 40 CFR 51.356;
[[Page 37510]]
(D) The SIP lacks a detailed information concerning the enforcement
process, and a commitment to a compliance rate to be maintained in
practice required under 40 CFR 51.361.
(E) The SIP lacks the details of the enforcement oversight program
including quality control and quality assurance procedures to be used
to insure the effective overall performance of the enforcement system
as required under 40 CFR 51.362;
(F) The SIP lacks a detailed description of procedures for
enforcement against contractors, stations and inspectors as required
under 40 CFR 51.364;
(G) The SIP lacks a detailed description of data analysis and
reporting provisions as required under 40 CFR 51.366;
(H) The SIP lacks a public awareness plan as required by 40 CFR
51.368; and
(I) The SIP lacks provisions for notifying motorists of required
recalls prior to inspection of the vehicle as required by 40 CFR
51.370.
(iii) EPA is also approving this SIP revision under section 110(k),
for its strengthening effect on the plan.
[FR Doc. 97-18407 Filed 7-11-97; 8:45 am]
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