Approval and Promulgation of Air Quality Implementation Plans; Maine; Enhanced Inspection and Maintenance in Androscoggin, Cumberland, Kennebec, Knox, Lincoln, Sagadahoc, and York Counties

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[ME13-1-6321; A-1-FRL-5006-7]

Approval and Promulgation of Air Quality Implementation Plans;

Maine; Enhanced Inspection and Maintenance in Androscoggin, Cumberland,

Kennebec, Knox, Lincoln, Sagadahoc, and York Counties

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: In this action, EPA is proposing to conditionally approve a

revision to the Maine Department of Environmental Protection (DEP)

State Implementation Plan (SIP) for Inspection and Maintenance (I/M).

This SIP revision was submitted to EPA for approval on November 1,

1993. The submittal was supplemented by a May 26, 1994 letter from the

Commissioner of the DEP describing the changes and additions Maine is

making to the I/M program. The SIP includes Chapter 128 of a State rule

entitled ``Motor Vehicle Emission Inspection Program,'' and additional

supporting material including authorizing legislation, administrative

items, and a description of the program being implemented. EPA proposes

to conditionally approve the SIP revision if the changes and additions

specified in this proposal are submitted to EPA by July 22, 1994. If a

full SIP revision addressing the issues discussed in this notice is not

submitted, EPA proposes in the alternative to disapprove Maine's

submission. This action is being taken under Section 110 of the Clean

Air Act (CAA).

EPA proposes conditional approval, under section 110(k)(4) of the

CAA, of certain commitments made by Maine in its May 26, 1994 letter.

Maine's commitments pertain to the ``low mileage'' waiver described in

III.F below. Section 110(k)(4) provides that, if a state fails to

comply with its commitments by a date certain, but no later than one

year of EPA approval, EPA's conditional approval will convert to a

disapproval. The content of the State letter is described in detail in

this notice.

DATES: Comments must be received on or before August 8, 1994. Public

comments on this document are requested and will be considered before

taking final action on this SIP revision.

ADDRESSES: Comments may be mailed to Linda M. Murphy, Director, Air,

Pesticides and Toxics Management Division, U.S. Environmental

Protection Agency, Region I, 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, Region I, One Congress Street, 10th

floor, Boston, MA and the Bureau of Air Quality Control, Department of

Environmental Protection, 71 Hospital Street, Augusta, ME 04333.

FOR FURTHER INFORMATION CONTACT: Robert C. Judge, (617) 565-3233.

SUPPLEMENTARY INFORMATION: In this action, EPA is proposing to

conditionally approve or, in the alternative, disapprove the Maine I/M

SIP revision if the State fails to submit an additional SIP correcting

the deficiencies identified in this notice. EPA proposes to

conditionally approve the DEP's I/M SIP, which was submitted to EPA for

approval on November 1, 1993. The SIP includes Chapter 128 of a State

rule entitled ``Motor Vehicle Emission Inspection Program,'' and

additional supporting material including authorizing legislation,

administrative items, and a description of the program being

implemented. However, because many issues were not adequately addressed

in the November 1, 1993 submittal, Maine intends to supplement its

submittal by July 22, 1994. Upon submission, this revised submittal

will be made part of the material on Maine's enhanced I/M program

available for public review.

Maine submitted this SIP revision request to the EPA to satisfy the

requirements of sections 182(b)(4) and 184(b)(1)(A) of the Clean Air

Act, and the federal I/M rule codified at 40 CFR Part 51, Subpart S.

This SIP revision will require vehicle owners to comply with the Maine

I/M program in the seven Maine moderate ozone nonattainment counties.

This revision applies to the Maine counties of Androscoggin,

Cumberland, Kennebec, Knox, Lincoln, Sagadahoc, and York. In addition,

the State is proposing revisions to its regulations and is undergoing

rulemaking action to address outstanding deficiencies in the rules

submitted as part of this SIP revision. Once those revised adopted

rules and a detailed narrative description of the program are submitted

by Maine, EPA proposes to take final action approving the program if

the content of that submission is consistent with the requirements of

the I/M rule. EPA intends to take final action on this rulemaking no

later than September 15, 1994.

On May 26, 1994, the State of Maine sent a letter to EPA describing

how the state intends to address all outstanding issues, and agreed to

make the required changes. These changes include submission of a

detailed description of the motorist enforcement program, a description

of resources to provide staff and equipment to implement the program,

and assurances that the state will prepare reports and program

evaluations. These and other changes are described later in this

notice, and in even greater detail in the technical support document

(TSD) prepared for this revision.

If the State of Maine does not address the issues discussed in this

notice and submit revised rules and a narrative as a complete SIP

revision to EPA by July 22, 1994, EPA proposes to disapprove the

November 1, 1993 I/M SIP revision, since the program will not meet the

requirements of EPA's final rule (57 FR 52950).

EPA believes it is appropriate to propose in the alternative for

several reasons. The State is presently on an expedited schedule to

revise its regulations prior to the July 1, 1994 start-up of the

inspection and maintenance program. As such, a public hearing was held

on May 25, 1994 on proposed changes to the Maine I/M regulations. These

changes will be submitted to EPA no later than July 22, 1994. EPA

reviewed the proposed changes and received a guarantee from the State

of Maine to address other outstanding issues with their I/M program

prior to July 22, 1994. Once these issues are adequately addressed, EPA

believes the program will fulfill most of the requirements set forth in

EPA's final I/M rule.

The only outstanding issue which cannot be resolved in time for the

July 22, 1994 submission (and which therefore necessitates that the

final action on this proposal be a conditional approval) is the ``low

mileage'' waiver (LMW). Conditional approval is necessary because the

number of vehicles to be granted low mileage exemptions is uncertain

and EPA is concerned that the use of LMWs may result in the State's

failing to meet the minimum enhanced I/M performance standard in actual

practice. By proposing conditional approval on this action, EPA is

agreeing to defer final, full approval on the revised SIP until the

State has conducted a study of the impact of the LMW on the I/M

program's emission reductions. The May 26, 1994 letter commits to

completing this evaluation no later than January 31, 1995. It should be

noted that the State's authorizing legislation currently sets a

deadline of January 15, 1996 for completion of this evaluation, and the

State's commitment to complete the report by January 31, 1995

represents a significantly expedited schedule. In the event that the

above evaluation shows that the State's use of LMWs causes it to fall

short of the enhanced I/M performance standard in actual practice, the

State has further committed to securing the necessary legal and

regulatory changes to eliminate LMWs in time to submit a corrected I/M

SIP no later than September 1, 1995. Should the State fail to meet the

above commitments, the conditional approval will convert to a

disapproval.

Based on the State's May 26, 1994 letter, EPA expects that the

outstanding issues will be addressed in a manner consistent with EPA's

final I/M rule. Therefore, this revision is being proposed under a

procedure called parallel processing, whereby EPA proposes rulemaking

action concurrently with the state's procedures for amending its

regulations. If the proposed revision is substantially changed in areas

other than those identified in this proposal, EPA will disapprove the

revision. If no substantial changes are made other than those areas

cited in this proposal, EPA will publish a Final Rulemaking Notice on

the revised revision. The final conditional approval by EPA will occur

only after the amended regulations, as described below, have been

adopted by Maine and submitted formally to EPA for incorporation into

the SIP.

I. Clean Air Act Requirements

Background

Maine is part of the Ozone Transport Region (OTR). Section

184(b)(1)(A) of the Act requires areas of the OTR defined in EPA's

final I/M rule (57 FR 52950, November 5, 1992) to adopt and implement

an inspection and maintenance program meeting EPA's enhanced I/M

performance standard. In addition, the I/M rule requires that all

moderate ozone nonattainment areas containing urbanized areas with a

population greater than 50,000 must implement a program meeting the

basic I/M performance standard. Maine is affected by these provisions

in areas of the State. Specifically, under EPA's I/M rule, enhanced I/M

programs are required in the Portland area, and the Maine portion of

the Portsmouth, New Hampshire area. Basic I/M would be required in the

Lewiston-Auburn area. This program is being submitted to fulfill

Maine's obligations to implement basic and enhanced I/M. Enhanced I/M

is a more stringent program and includes all of the required components

of basic I/M.

By this action, EPA proposes to conditionally approve Maine's

submittal if the necessary regulatory changes are completed in

accordance with the I/M rule and submitted by July 22, 1994. If such

changes are not made and submitted by July 22, 1994, EPA proposes to

disapprove this action. EPA has reviewed the State submittal against

the requirements of the Act and EPA's final I/M rule. A summary of

EPA's analysis is provided below.

II. I/M Regulation General SIP Submittal Requirements

On November 5, 1992 (57 FR 52950), EPA published a final regulation

establishing the I/M requirements, pursuant to section 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 that includes all necessary legal authority and the items

specified in 40 CFR 51.350 through 51.373.

III. State Submittal

On November 1, 1993, and on May 26, 1994, the State of Maine

submitted an I/M SIP revision for seven ozone nonattainment counties

classified as moderate or above. A public hearing for the November 1,

1993 submittal was held on October 26, 1992. As stated in the May 26,

1994 letter from the DEP, a public hearing also was held on May 25,

1994. The DEP has pledged to submit revised regulations based on this

most recent hearing no later than July 22, 1994. EPA submitted comments

during both of those hearings. In addition, EPA has worked closely with

the DEP to ensure that the I/M program meets EPA requirements

identified in the I/M rule.

The I/M SIP submittal provides for the implementation of enhanced

I/M in the Maine counties of Androscoggin, Cumberland, Kennebec, Knox,

Lincoln, Sagadahoc, and York beginning on July 1, 1994. Maine will be

implementing a biennial, test-only I/M program. Once the changes the

State committed to in its May 26, 1994 letter have been adopted and

submitted as an amendment to the November 1, 1993 submission, the

program will meet the requirements of EPA's performance standard and

other requirements contained in the federal I/M rule, in the above-

listed counties. Testing will be overseen by the DEP and implemented by

an I/M contractor. Other aspects of the Maine I/M program include:

transient testing of 1968 and later light duty vehicles and trucks and

heavy duty trucks (only the testing of 1981 and newer vehicles is

considered in evaluating whether the enhanced performance standard is

met), evaporative emission testing for specified model year vehicles, a

test fee to ensure adequate resources to implement the program,

enforcement by registration suspension, a repair effectiveness program,

requirements for testing convenience, quality assurance, data

collection, minimum expenditures prior to time extensions and hardship

waivers, reporting, test equipment and test procedure specifications,

public information and consumer protection, inspector training and

certification, penalties based on inspector incompetence, an on-road

testing program, and emission recall enforcement. A section-by-section

analysis of the federal I/M rule, and Maine's demonstration of how the

I/M program meets some of the federal SIP requirements, as well as the

expected changes to the Maine I/M program described in the May 26, 1994

letter from the DEP so that the remainder of the federal I/M program

requirements are met, is provided below.

A. Applicability

The SIP describes in detail the areas subject to the enhanced I/M

SIP revision and, consistent with 40 CFR 51.372, includes the legal

authority necessary to establish program boundaries.

The Maine I/M regulations and authorizing legislation specify that

the enhanced I/M program be implemented in the counties described

above. The Maine I/M program is being implemented in areas beyond those

required by EPA's rule. Maine is implementing the enhanced I/M program

throughout each of its moderate ozone nonattainment areas, in part, to

meet requirements of Section 182(b)(1)(A) of the CAA that requires

reasonable further progress (RFP). EPA currently is taking separate

rulemaking action on the portion of the Maine submittal that expands

the geographical scope of the I/M program to counties not otherwise

required to adopt I/M. These counties include Kennebec, Knox, Lincoln,

and Sagadahoc. Although these areas are not required to implement

enhanced or basic I/M, the State of Maine has requested expedited

approval for those areas in order to make the resultant emission

reductions federally enforceable. Therefore, EPA has moved forward to

approve I/M in these areas as strengthening the SIP in Knox, Kennebec,

Lincoln, and Sagadahoc Counties. EPA is taking separate action on the

optional I/M program in the event that EPA takes final action

disapproving this SIP. However, if the Maine I/M program is

conditionally approved, the revised SIP requirements will apply, and

once Maine has fulfilled its commitment regarding the ``low mileage''

waiver, EPA will withdraw the separate rulemaking action approving the

optional I/M program since that action would be superseded by final

approval of this action.

B. Enhanced I/M Performance Standard

Today's proposal discusses the I/M program designed, in part, to

meet the enhanced I/M performance standard for ozone precursors causing

air quality problems in Maine. Maine's program was designed to meet the

performance standard for volatile organic compounds (VOC) and nitrogen

oxides (NOx). EPA's performance standard establishes an emission

reduction target that must be met by a program in order for the SIP to

be approvable. The program, as documented in the SIP, must meet the

performance standard in actual operation, with provisions for

appropriate adjustments if the standard is not met.

The State submitted a modeling demonstration using the EPA computer

model, MOBILE5a, showing that the enhanced performance standard will be

met in the area. The effect of the allowed program exemptions (for

example, street rods and stock race cars) have been incorporated into

the estimate of the program's effectiveness. In addition, in its May

26, 1994 submittal, the DEP provided a commitment to maintain the level

of compliance and waivers assumed in the modeling. The DEP also

committed to providing additional detail on this modeling effort,

including justification for the modeling inputs assumed, in the revised

submittal no later than July 22, 1994. The effect of the ``low

mileage'' waiver was not evaluated in this modeling effort. The reason

that this action is a conditional approval is to allow the State to

demonstrate that the effect is negligible, or to fulfill its commitment

to make necessary legislative and regulatory changes if the ``low

mileage'' waiver affects the ability of the State to meet the

performance standard.

C. Network Type and Program Evaluation

Under the Act and 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 needs to

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, as well as the legal authority establishing the

evaluation program.

Maine has chosen to implement a test-only I/M network program

design utilizing contractors to implement the inspection portion of the

program. The State has chosen not to make a demonstration for case-by-

case equivalency for a different network design, and has provided

evidence that precludes conflicts of interest by the contractor, as

described in the ``test-only'' requirements in the I/M rule. In its May

26, 1994 letter, the Maine DEP states, in its SIP revision narrative,

that it will institute a continuous ongoing evaluation program

consistent with the federal I/M rule. The results of the evaluation

program will be reported to EPA on a biennial basis (40 CFR 51.353). In

addition, Maine commits to developing and submitting the annual reports

described by 40 CFR 51.366 and will describe the reports in more detail

in the revised SIP submittal required by July 22, 1994. Legal

authority, already contained in Maine state law, authorizes the DEP to

implement this contractor operated, test-only program and conduct the

program evaluation, as necessary to implement I/M consistent with

federal requirements. As mentioned earlier, if a program for evaluation

and submission of annual reports is not completed consistent with the

I/M rule and submitted to EPA by July 22, 1994, EPA will disapprove

Maine's SIP revision.

D. Adequate Tools and Resources

Under the Act and 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 for

other requirements discussed throughout the I/M rule, 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.

The current Maine legislation was effective July 12, 1993. The

legislation authorizes the DEP to collect a fee from the I/M

contractors to cover the costs of administrating, overseeing, and

enforcing the I/M program, and provides for allocation of certain

highway funds for implementation. The May 26, 1994 letter states that

the DEP will include additional detail on the funding and description

of resources to be used for implementation of the enhanced I/M program

in the SIP narrative to be submitted no later than July 22, 1994. In

order to be conditionally approved, this narrative will describe the

budget, staffing support, and equipment needed to implement the

program. The revised regulations provide for up to a $4.00 fee per

inspection to be used to administer the program. Pursuant to EPA

comment, the revised regulations are expected to define that the fee be

no less than $2.00 per test.

E. Test Frequency and Convenience

Under EPA's I/M rule, the SIP must include a detailed test

schedule, including the test year selection scheme if testing is other

than annual. The SIP must also 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 needs to demonstrate that

the network of stations providing testing services is sufficient to

ensure consumer convenience by providing short waiting times to get a

test, and short driving distances to get to the test center.

The Maine SIP revision requires biennial inspections for all

subject motor vehicles that are at least two years 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 committed to be

described in more detail in the July 22, 1994 submittal. The authority

for enforcing the testing frequency is contained in the revised Maine

I/M rule expected to be submitted shortly. Short waiting times and

short driving distances relating to network design are addressed in the

contract between the State and its contractor, and in the Maine rules.

The contract requires an average waiting time of 15 minutes per test

and inspection facility locations which ensure that 85% of the vehicle

population is within a fifteen mile drive of each facility.

F. Vehicle Coverage

Under EPA's I/M rule, the SIP must include a detailed description

of the number and types of vehicles to be covered by the program, and a

plan for identifying subject 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

which will be granted by the program, and an estimate of the percentage

and number of vehicles granted such exemptions. Such exemptions need to

be accounted for in the emission reduction analysis. In addition, the

SIP needs to include the legal authority necessary to implement and

enforce the vehicle coverage requirement.

Maine's I/M program covers 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 nonattainment

areas (only the testing of 1981 and newer vehicles is considered in

evaluating whether the enhanced performance standard is met). Vehicles

will be identified through the State Department of Transportation

vehicle registration database. Special classes, which are exempt from

the emission testing program, include vehicles weighing more than

10,000 pounds (GVWR), street rods, stock race cars, and motorcycles.

Based on information provided by the State, EPA believes such

exemptions will not prevent the program from achieving the performance

standard. Additional detail supporting this conclusion will be

submitted by the state no later than July 22, 1994. Legal authority for

the vehicle coverage requirement is contained in the Maine I/M rule and

the July 1993 authorizing legislation. The revised rules committed to

be submitted by Maine by July 22, 1994 will include a low-mileage

waiver (LMW) which exempts vehicles driven less than 5000 miles per

year. The authorizing legislation requires the LMW and also requires

that the DEP prepare a report on its effect on Maine's ability to meet

the performance standard. The May 26, 1994 letter from the DEP commits

to provide the legislature with this information by January 31, 1995,

and to secure revised legislation if the data shows that Maine cannot

achieve the performance standard required by EPA's I/M rule. If

necessary, the DEP also commits to revising its regulation by June 1,

1995, to hold a public hearing on necessary regulatory changes, and to

submit to EPA a revised SIP submittal removing the LMW by September 1,

1995. At present, there is inadequate information for EPA to determine

how this waiver will affect the performance standard. For this reason,

EPA proposes to conditionally approve the submission based on the DEP's

commitments. Failure to meet any of these dates will result in EPA

disapproval of this action, unless the EPA Regional Administrator

approves a later date in writing no later than the date of the

milestone. In no circumstances will the September 1, 1995 date for

final submittal be revised.

G. Test Procedures and Standards

Under EPA's I/M rule, the SIP must include a description of each

test procedure used. The SIP also must include the rule, ordinance or

law describing and establishing the test procedures.

The Maine I/M SIP revision obligates the State to perform transient

exhaust emission testing using the IM240 driving cycle. In addition,

the State of Maine has stated that it will follow procedures in

accordance with EPA's guidance document entitled, ``High-Tech I/M Test

Procedures, Emission Standards, Quality Control Requirements, and

Equipment Specifications'' (Technical Guidance). The State will be

requiring IM240 tests on 1968 and later model year vehicles in the

area. This model year coverage complies with EPA's I/M regulation. In

addition, the State of Maine will require evaporative emission testing

of the fuel system's integrity and functionality for at least 1981 and

newer vehicles. The test procedures are set forth with specificity in

the I/M Request For Proposal (RFP) which the Maine I/M contractor is

required to abide by. Maine committed to amending these procedures to

ensure that the latest EPA procedures will be used in the program.

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 address

each of the requirements set forth at 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.

By its May 26, 1994 letter, Maine guarantees to supplement its I/M

SIP revision by or before July 22, 1994 so that the Maine I/M SIP

revision requires the State to use the current written equipment

specifications contained in EPA's IM240 Guidance and the appendices of

EPA's I/M rule. The Maine SIP, May 26, 1994 letter, and request for

proposal 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 the RFP and

contract.

I. Quality Control

Under EPA's I/M rule, the SIP must include a description of quality

control and recordkeeping procedures. The SIP also must include the

procedures manual, rule, and ordinance or law describing and

establishing quality control procedures and requirements.

The Maine I/M SIP narrative and RFP and contract contain

descriptions and requirements establishing the quality control

procedures in accordance with the federal I/M rule. As stated in the

Maine DEP's May 26, 1994 letter, these procedures will be detailed in

the revised SIP submittal, and will be consistent with EPA guidance.

These requirements will help ensure that equipment calibrations are

properly performed and recorded and that the necessary compliance

document security is maintained. The Maine SIP will obligate the State

to comply with all specifications for quality control set forth in

Section 51.359 and Appendix A of the federal I/M rule, and EPA's

technical guidance.

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. Corrective action must be taken if the waiver rate exceeds

that estimated in the SIP, or the state must revise the SIP and claim

emission reductions accordingly. The SIP also 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(s), 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 federal I/M rule. Expenditures for repairs

of at least $450, adjusted annually for the consumer price index (CPI),

must be spent in order to qualify for a waiver in the enhanced I/M

program. Maine has demonstrated that it can meet the enhanced I/M

performance standard testing only 1981 and newer vehicles. In addition,

Maine is requiring I/M on vehicles as old as 1968 model year. These

vehicles will not be included as part of the ``enhanced I/M'' program,

despite being subject to the same type of emission testing. The testing

of these additional vehicles will achieve additional emission

reductions which will be used, in part, as a means of achieving

additional emission reductions required for RFP, and anticipated by

Maine to be necessary for attainment. Accordingly, these older vehicles

will be subject to a lower waiver expenditure of $125, adjusted for

CPI, prior to receiving a waiver.

The Maine program includes a waiver rate of 3% of initially failed

vehicles in the area. These waiver rates are used in the modeling

demonstration. The DEP has stated in the May 26, 1994 letter, and will

include in the revised SIP, that if the waiver rates are higher than

estimated as determined by its program reports, the State will take

corrective action to address the deficiency. The SIP describes the

three types of waivers the State will allow including: a minimum

expenditure, a time extension, and a one-time hardship waiver

provisions. These issues are dealt with in a manner consistent with the

federal I/M rule. The proper criteria, procedures, quality assurance

and administration regarding the issuance of waivers, consistent with

EPA's I/M rule, will be ensured by the DEP and its contractors and are

committed to be detailed in the SIP narrative, promised to be submitted

by July 22, 1994.

K. Motorist Compliance Enforcement

Under EPA's I/M rule, the SIP must provide information concerning

motorist enforcement, including: (1) A description of the existing

compliance mechanism if it will continue to be used for this program,

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, such as those operated (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 including 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 must be supported with detailed analyses. In addition, the

SIP needs to include the legal authority to implement and enforce the

program. Lastly, the SIP must include a commitment to an enforcement

level and minimum compliance level used for modeling purposes and to be

maintained, at a minimum, in practice.

The State of Maine has chosen to use a program of registration

suspension whereby subsequent registration is denied to anyone who

fails to meet emission testing requirements. The motorist compliance

enforcement program will be implemented primarily by the Maine Bureau

of Motor Vehicles (BMV). The enforcement strategy is described in

Maine's May 26, 1994 letter, and more detail will be provided in the

revised SIP. The enforcement strategy is designed to ensure a 90

percent compliance rate for all vehicles within 4 months of the

compliance deadline. As described in the May 26, 1994 letter, this will

be accomplished by a computer matching program that will identify

registered vehicles tested prior to registration, as well as those

receiving their emission inspection within a specified period after

registering. Those not receiving the emissions test will be notified of

such failure, and put on notice that their registration will be

suspended if they do not comply. Those that still fail to comply will

either receive a summons to appear in court, or be subject to

confiscation of their license plate by BMV personnel who would

physically remove the plate from the vehicle. In addition, the Maine

legislation authorizing I/M provides that vehicles operating with a

suspended registration must be fined at least $450.

The only classes of vehicles exempt from this program are described

above under vehicle coverage. Fleet vehicles, rental car fleets, and

leased vehicles will be required to meet the same program requirements

as all other vehicles that receive annual registration. Compliance

rates with the new program are estimated at 96%. The May 26, 1994

letter, and the anticipated revised SIP, commit to revise the I/M SIP

if Maine fails to meet the 96% compliance rate. The legal authority to

implement and enforce the program are included in the Maine State law

and in DEP and BMV rules to be supplied by July 22, 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 Maine I/M SIP revision provides for regular auditing of its

enforcement program and adherence to effective management practices,

including adjustments to improve the program when necessary. According

to the May 26, 1994 letter from the DEP, these program oversight and

information management activities will be described in the July 22,

1994 SIP narrative, be consistent with the I/M rule, and include:

establishing written procedures for personnel engaged in I/M document

handling and processing, supporting an on-line telecommunications

network for the State's oversight and management requirements, and

establishing an I/M database to compare to the registration database

for purposes of to determining program effectiveness.

M. Quality Assurance

Under EPA's I/M rule, the SIP must include a description of the

quality assurance program, and written procedure manuals covering both

overt and covert performance audits, record audits, and equipment

audits.

The May 26, 1994 letter from Maine includes a description of the

quality assurance program, and a pledge to provide more detail,

consistent with EPA's I/M rule, in the revised SIP submittal expected

on or before July 22, 1994. According to that letter, the program will

include operation and progress reports and overt and covert audits of

all emission inspectors and emission inspection facilities to be

conducted by the DEP. Written procedures and techniques for overt and

covert performance, record, and equipment audits will be provided to

auditors and updated as needed. The July 22, 1994 submission will also

include a commitment to a minimum level of activity for overt and

covert audits, as required by the federal I/M rule.

N. Enforcement Against Contractors, Stations and Inspectors

Under EPA's I/M rule, the SIP must include a penalty schedule and

legal authority for establishing and imposing penalties, civil fines;

station and inspector, license suspension, and revocations. In the case

of state constitutional impediments precluding immediate authority to

suspend licenses, the state Attorney General shall furnish an official

opinion within the SIP explaining the constitutional impediment as well

as relevant case law. The SIP also must describe the administrative and

judicial procedures and responsibilities relevant to the enforcement

process, including the agencies, courts, and jurisdictions involved;

personnel to prosecute and adjudicate cases; and other aspects of the

enforcement of the program requirements, the resources to be allocated

to the enforcement function, and the source of those funds. In states

that are without immediate suspension authority, the SIP must

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 Maine I/M SIP revision includes specific penalties in its

enforcement against contractors, stations and inspectors in accordance

with the federal I/M rule. Based on its May 26, 1994 letter, Maine

intends to revise its SIP submittal by July 22, 1994, to include the

State's enforcement procedures that can be pursued through contractual

or regulatory action. The DEP also will address the authority to

immediately suspend a station inspector for violations that directly

affect emission reduction benefits. Authority for establishing and

imposing penalties, civil fines, license suspension, and revocations

are contained in the awarded contract. The DEP is planning to assign

employees to covert and overt auditing and commit additional resources

required for enforcement oversight provided by the contractor. These

audits and oversight functions will be funded by the inspection fee.

Final approval of the SIP will be dependent upon this information being

submitted consistent with EPA's I/M rule.

O. Data Analysis and Reporting

Under EPA's I/M rule, the SIP must describe the types of data to be

collected.

The Maine I/M SIP provides for collecting test data to link

specific test results to specific vehicles, I/M program registrants,

test sites, and inspectors. The SIP lists the specific types of test

data and quality control data which will be collected. As outlined

above and described in the May 26, 1994 letter, the data will be used

to generate reports concerning test data, quality assurance, quality

control, enforcement, as well as necessary changes and identified

weaknesses in the program. The state has also committed to collecting

all data necessary for the quality assurance and enforcement reports.

These reports will be described in more detail in the revised SIP

submittal expected on or before July 22, 1994. Final approval of the

SIP will be dependent upon this information being submitted consistent

with EPA's I/M rule.

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 May 26, 1994 letter from the DEP provides some detail on the

inspector training program. The Maine revised I/M SIP will provide for

implementation of training, certification, and refresher programs for

emission inspectors. The revised SIP will describe this program and

curriculum including written and hands-on testing at least once every

two years. All inspectors will be required to be certified to inspect

vehicles in the Maine I/M program.

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.

In the May 26, 1994 letter, Maine commits to providing additional

detail and a description of the technical assistance, performance

monitoring and repair technician training programs to be implemented.

The SIP revision provides for regularly informing repair facilities

about changes to the inspection program, training course schedules,

common problems, and potential solutions for particular engine

families, diagnostic tips, repairs, and other assistance issues. As

described in the May 26, 1994 letter, the DEP will also ensure that a

repair technician hotline will be available for repair technicians, and

issued a request for proposals to serve this purpose. Performance

monitoring statistics of repair facilities will be provided to

motorists whose vehicles fail the I/M tests in enhanced I/M areas. The

State has committed to ensure that adequate repair technician training

exists by establishing training courses at technical schools in the

area, and has secured necessary funding under the Intermodal Surface

Transportation Efficiency Act. Further, the May 26, 1994 letter states

that the revised SIP will include a detailed public information and

consumer protection plan consistent with the requirements of EPA's I/M

at section 51.368.

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 the vehicle recall lists

provided into the inspection or registration database, the quality

control methods used to insure that recall repairs are properly

documented and tracked, and the method (inspection failure or

registration denial) used to enforce the recall requirements.

The revised Maine I/M SIP will ensure that vehicles subject to

enhanced I/M programs, that are included in either a voluntary emission

recall or a remedial plan determination pursuant to the CAA, have had

the appropriate repairs made prior to the inspection. The contractor

will identify vehicles that have not completed recall repairs by

electronic means. Motorists with unresolved recall notices will be

required to show proof of compliance or will be denied the opportunity

for inspection. The rules recently revised by Maine address this issue,

and will be submitted on or before July 22, 1994. These rules have

undergone public comment at the State level, and are being adopted.

S. On-Road Testing

Under the Act and 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 predicted to be achieved by other

aspects of the I/M program. The SIP needs to include technical support

for the claimed additional emission reductions.

Maine has stated that in the revised I/M SIP to be submitted by

July 22, 1994, it will include a detailed description of its on-road

testing program. The testing program will include 0.5% of the subject

vehicles. Vehicles with emission readings measured by remote sensing

devices exceeding limits defined in the revised rules will be required

to obtain an out-of-cycle inspection at a vehicle emission inspection

facility. This program will be staffed by a State contractor and

overseen by the DEP. Data collection and reporting will be done using

the general record-keeping and reporting provisions of the I/M program.

The legal authority for this program is contained in the Maine I/M rule

and the authorizing legislation. The State did not include additional

modeling credit for this portion of the program in the modeling

demonstrating that EPA's performance standard was met.

T. Concluding Statement

A more detailed analysis of the State's submittal and how it meets

the federal requirements is contained in the EPA's technical support

document prepared for this action. The TSD is available from the EPA

New England Regional office listed above. The criteria used to review

the submitted SIP revision are based on the requirements set forth in

Section 182 of the CAA and in the federal I/M regulations. Based on

these requirements, EPA developed a detailed I/M approvability

checklist to be used nationally to determine if I/M programs meet the

requirements of the CAA and the federal I/M rule. The checklist states

the federal requirements, referenced by section of the rule, whether or

not the Maine program meets such requirements, and where in the Maine

SIP submittal the requirements are met. This checklist, the CAA, and

the federal I/M regulation formed the basis for EPA's technical review.

EPA has reviewed the Maine I/M SIP revision submitted to the EPA using

the criteria stated above. The Maine regulations and accompanying

materials contained in the SIP, as well as the May 26, 1994 commitment

letter from the State to provide revised rules and a more detailed

description of the I/M program fulfilling the outstanding requirements

of the federal I/M rule by July 22, 1994, represent an acceptable plan

to comply with the I/M requirements and meet all the criteria required

for EPA to conditionally approve the SIP.

IV. Maine I/M Committal SIP

On September 27, 1993, (58 FR 50304) EPA proposed conditional

approval of the Maine I/M committal SIP which was submitted on December

11, 1992, including a schedule of implementation for the program. At

that time, EPA believed that conditional approvals were appropriate for

I/M 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 Counsel (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 Court of Appeals for the District of

Columbia Circuit concluded, as a result 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 than September 15, 1994 all I/M SIPs already

received. As a result of that court order, EPA is taking this action to

propose conditional approval of the Maine SIP submitted on November 1,

1993 and on May 26, 1994, and will not be taking further action on the

``committal'' I/M SIP submitted by the State of Maine on December 11,

1992. In the alternative, EPA is proposing disapproval if the July 22,

1994 submittal is deficient or not made.

Proposed Action

EPA is proposing to conditionally approve the Maine I/M program

initially submitted by the State, on November 1, 1993, in consideration

of Maine's May 26, 1994 letter calling for a revised SIP submittal by

July 22, 1994. EPA's proposed conditional approval of the Maine I/M

program is subject to Maine's fulfillment of the specific conditions

outlined in this notice. This action also proposes, in the alternative,

to disapprove the Maine I/M SIP revision if Maine does not adequately

address the issues articulated in this notice by July 22, 1994.

Pursuant to section 110(k)(4) of the CAA, EPA proposes conditional

approval of Maine's submission based on the commitments of the DEP.

Specifically, by January 31, 1995 the DEP will submit a report

outlining the effect of the ``low mileage'' waiver to the legislature;

by June 1, 1995, if necessary, to hold a public hearing on revised

regulation changes; and by September 1, 1995, if necessary, to submit a

revised SIP revision removing the ``low mileage'' waiver from the

regulations. Section 110(k)(4) provides that, if a state fails to

comply with its commitment, such conditional approval will become a

disapproval.

Failure to meet any of these dates will result in EPA disapproval

of this action, unless the EPA Regional Administrator approves a later

date in writing no later than the date of the milestone. In no

circumstances will the September 1, 1995 date for final submittal be

revised.

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 the I/M SIP for Maine as meeting the

requirements of the CAA and federal I/M rule and, in the alternative,

to disapprove the I/M SIP for Maine. As indicated at the outset of this

action, the EPA will consider any comments received by August 8, 1994,

and make the TSD available upon request.

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.

Conditional approvals of SIP submittal under Sections 110 and 301

subchapter I, Part D of the CAA do not create any new requirements, but

simply approve requirements that the state is already imposing or has

committed to impose in the future. Therefore, because the federal SIP

approval does not impose any new requirements, 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 for a SIP approval would constitute federal

inquiry into the economic reasonableness of the state actions. The CAA

forbids EPA to base its actions concerning SIPs on such grounds. Union

Electric Co. v. U.S. 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.

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. 7401-7671q.

Dated: June 12, 1994.

John P. DeVillars,

Regional Administrator, Region I.

[FR Doc. 94-16599 Filed 7-7-94; 8:45 am]

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