Approval and Promulgation of Air Quality Implementation Plans; New Hampshire; Enhanced Inspection and Maintenance in Hillsborough, Merrimack, Rockingham, and Strafford Counties

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NH14-1-6483; A-1-FRL-5014-6]

Approval and Promulgation of Air Quality Implementation Plans;

New Hampshire; Enhanced Inspection and Maintenance in Hillsborough,

Merrimack, Rockingham, and Strafford Counties

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: In this action, EPA proposes to conditionally approve or, in

the alternative, disapprove the New Hampshire Enhanced Inspection and

Maintenance (I/M) State Implementation Plan (SIP) which was submitted

to EPA for approval on March 1, 1994, April 20, 1994, and April 28,

1994. These submittals were supplemented by letters dated May 19, 1994

and June 28, 1994 providing additional information and specific

assurances regarding changes New Hampshire is making to the program and

stating the State's intent to submit further information to EPA by

August 19, 1994. The content of the State's letters is described in

detail in this notice. If such information is submitted for inclusion

in the SIP on or before that date, EPA proposes to conditionally

approve the New Hampshire I/M SIP. If such information is not submitted

by August 19, 1994, EPA proposes to disapprove the SIP. Since the

August 19, 1994 submittal will not be included in the docket for this

notice in time to provide adequate public review and comment during the

normal comment period, the comment period will remain open only for

comments concerning the August 19, 1994 submittal until August 29,

1994. Conditional approval is based on the state's commitment to

satisfy specified conditions by July 29, 1995. If such conditions are

not met by July 29, 1995, the conditional approval automatically will

convert to a disapproval.

New Hampshire submitted this I/M SIP revision to EPA to satisfy the

requirements of sections 182(b)(4), 182(c)(3) and 184(b)(1)(A) of the

Clean Air Act, and EPA's I/M rule at 40 CFR Part 51, Subpart S. These

SIP revisions will require vehicle owners to comply with the New

Hampshire I/M program in four New Hampshire counties that are part of

the Northeast Ozone Transport Region namely, Hillsborough, Merrimack,

Rockingham and Strafford. This action is being taken under Section 110

of the Clean Air Act.

DATES: Comments must be received on or before August 17, 1994. Only

public comments on the submittal due on August 19, 1994 by the state of

New Hampshire may be received after August 17, 1994 but not later than

August 29, 1994. Public comments on these documents are requested and

will be considered before taking final action on this SIP revision.

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

Pesticides and Toxics Management Division, U.S. Environmental

Protection Agency, New England Region, JFK Federal Bldg. (AAA), Boston,

MA 02203. Copies of the State submittal and EPA's technical support

document are available for public inspection during normal business

hours, by appointment at the Air, Pesticides and Toxics Management

Division, U.S. Environmental Protection Agency, New England Region, One

Congress Street, 10th floor, Boston, MA and the New Hampshire

Department of Environmental Services, Air Resources Division, 64 North

Main Street, Concord, NH 03302-2033.

FOR FURTHER INFORMATION CONTACT: Peter X. Hagerty, (617) 565-3224.

SUPPLEMENTARY INFORMATION:

I. Clean Air Act Requirements

The Clean Air Act, as amended in 1990 (CAA or Act), requires

certain States to revise and improve existing I/M programs or implement

new ones. All ozone nonattainment areas classified as moderate or worse

must implement a basic or enhanced I/M program depending upon its

nonattainment classification, regardless of previous requirements. In

addition, Congress directed the EPA in section 182(a)(2)(B) to publish

updated guidance for State I/M programs, taking into consideration

findings of the Administrator's audits and investigations of these

programs. The States must then incorporate this guidance into the SIP

for all areas required by the Act to have an I/M program. Metropolitan

statistical areas with populations of 100,000 or more that are within

the Northeast Ozone Transport Region are required to meet EPA guidance

for enhanced I/M programs.

II. Background

The EPA has designated three areas as nonattainment for ozone in

the State of New Hampshire. The New Hampshire portion of the Boston-

Lawrence-Salem Consolidated Metropolitan Statistical Area is classified

serious for ozone, the Portsmouth-Dover-Rochester Metropolitan

Statistical Area (MSA) also is classified serious for ozone, and the

Manchester MSA is classified marginal for ozone. The designations for

ozone were published in the Federal Register (FR) on November 6, 1991

(56 FR 56694) and November 30, 1992 (57 FR 56762) and have been

codified in the Code of Federal Regulations (CFR) at 40 CFR sections

81.300-81.437. Based on these nonattainment designations, an enhanced

I/M program is required in Hillsborough, Rockingham, Strafford. In

addition, these MSAs have populations of over 100,000 or more and are

included in the Ozone Transport Region. Although parts of Merrimack

County are in the Manchester MSA, the county could be exempted since,

in New England, MSAs are defined by town, not by county and more than

fifty percent of the MSA population would be in the I/M program and the

population density is less than 200 persons per square mile. Under

EPA's I/M rule 40 CFR 51.350(b)(1) such portions of Merrimack county

are not required to implement I/M. However, all of Merrimack County is

included to generate emission reductions which may be used as offsets

or trading credits.

By this action, EPA is proposing to conditionally approve and in

the alternative, disapprove the New Hampshire I/M SIP revision. EPA has

reviewed the State submittals against the statutory requirements under

the Act and for consistency with EPA regulations. In letters dated May

19, 1994 and June 28, 1994, New Hampshire indicated its intent to

address a number of outstanding issues discussed further in this notice

and to submit necessary revisions to EPA by August 19, 1994. If such

revisions are submitted in a timely manner, are consistent with this

notice and fully meet the requirements of the I/M rule, EPA will

conditionally approve the SIP. Three parts of the program, on-road

testing, compliance via diagnostic inspection, and enforcement against

inspectors require more time to resolve and provide the basis for

today's proposed conditional approval. As requested by New Hampshire,

the state will have until July 29, 1995 to submit these revisions to

address these three areas. If such revisions are submitted by that

date, fulfill the conditions set forth in this notice, and fully meet

the requirements of the I/M rule, the state will have met the specified

conditions and the I/M SIP will be fully approved. A summary of EPA's

analysis is provided below. In addition, more detailed support for

conditionally approving the State submittal is contained in the

technical support document (TSD), dated June 28, 1994, which is

available from the New England Regional Office, listed above.

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

establishing the I/M requirements, pursuant to sections 182 and 187 of

the Act. The I/M regulation was codified at 40 CFR Part 51, Subpart S,

and requires States to submit, by November 15, 1993, an I/M SIP

revision including all necessary legal authority and the items

specified in 40 CFR 51.350 (a)(1) through 51.373.

III. State Submittal

On March 1, 1994, April 20, 1994, and April 28, 1994, the State of

New Hampshire submitted an I/M SIP for its three nonattainment areas.

Public hearings for the submittals were held on January 5 and 6, 1994,

for the March 1, 1994 SIP submittal, and on March 8, 1994 for the April

20, 1994 SIP submittal. The April 28, 1994 submittal contained only

administrative materials to supplement the April 20 submission. EPA

submitted written comments to the state on March 18, 1994. EPA's

primary comments concerned the State's modeling analysis demonstrating

achievement of the performance standard, and the motorist compliance

enforcement program. In letters dated May 19, 1994 and June 28, 1994,

the state agreed to submit by August 19, 1994 additional information to

address these and other areas identified in this notice and discussed

further below.

The submittals provide for the implementation of an enhanced I/M

program in four counties in New Hampshire beginning on January 1, 1995.

New Hampshire will be implementing a biennial, test-only I/M program

meeting the requirements of the I/M performance standard and other

requirements contained in EPA's I/M rule. Testing will be overseen by

the New Hampshire Department of Safety (NHDOS) and the New Hampshire

Department of Environmental Services (NHDES), with actual testing done

by a contractor. Other aspects of the New Hampshire I/M program

include: testing of 1968 and later light duty vehicles and trucks, and

heavy duty trucks, evaporative emission testing for 1975 and later

model year vehicles, a test fee to ensure the State has adequate

resources to implement the program, enforcement by registration

suspension, a repair effectiveness program, contractual requirements

for testing convenience, quality assurance, data collection, minimum

expenditure, time extension and hardship waivers, reporting, test

equipment and test procedure specifications, public information and

consumer protection, inspector training and certification, and

penalties against inspector incompetence. In addition, the enhanced I/M

program will include: IM240 testing for 1981 and newer vehicles, an on-

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

section analysis of how the New Hampshire I/M program meets the SIP

requirements of the federal I/M rule is provided below.

A. Applicability

Under EPA's I/M rule, the SIP must describe the applicable areas in

detail and, consistent with 40 CFR Section 51.372, must include legal

authority necessary to establish program boundaries and implement the

program.

The New Hampshire I/M legislation in Chapter 353 of the Laws of

1993 specifies that vehicles registered in Hillsborough, Merrimack,

Rockingham, and Strafford counties be subject to an enhanced I/M

program.

EPA's I/M regulation requires that the state program shall not

terminate prior to the attainment deadline for each applicable area.

The New Hampshire program has no sunset date.

B. Enhanced I/M Performance Standard

Under EPA's I/M rule, an I/M SIP must meet the enhanced I/M

performance standard for pollutants that cause the affected area to

come under I/M requirements. The performance standard sets an emission

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

be approvable. The SIP also must provide that the program will meet the

performance standard in actual operation, with provisions for

appropriate adjustments if the standard is not met.

New Hampshire has submitted a modeling demonstration using the EPA

computer model MOBILE5a showing that the enhanced performance standard

will be met. This demonstration will need to be revised since the

assumptions for gasoline Reid Vapor Pressure (RVP) and vehicle

refueling emissions used in the model program were not the same as

those used in the New Hampshire proposed program. In addition, the

State used national average vehicle age data because the existing

registration data is believed to be unreliable, and the State assumed a

99% compliance rate and waiver rate of 1%. EPA agreed to allow the use

of national vehicle age data but questioned the use of the 99%

compliance and 1% waiver rates given the unreliable registration model

year data and the lack of an adequate description of the motorist

enforcement system. EPA believes that a 96% compliance rate and 3%

waiver rate are achievable for a well operated program, but rates in

excess of these require measures which go beyond normal enforcement and

quality control measures. EPA has evaluated these matters and

determined that the program will meet the performance standard with the

correct RVP and vehicle refueling emissions assumptions and with either

a 99% compliance rate and 1% waiver rate or with the rates provided in

EPA's I/M rule, namely, a 96% compliance rate and a 3% waiver rate. In

a letter dated May 19, 1994, the State agreed to reconsider the

compliance and waiver rates and submit additional information by August

19, 1994 justifying these rates, or revising them to lower rates. At a

minimum, the state intends to meet a 96% compliance rate and 3% waiver

rate as required by the EPA rule.

New Hampshire has submitted a separate SIP submittal for the 15%

rate of progress demonstration required by the Act. That SIP is being

evaluated by EPA and will be discussed in a separate Federal Register

notice. Any implications of New Hampshire's decision on compliance and

waiver rates on their 15% rate of progress SIP will be discussed in

that notice.

C. Network Type and Program Evaluation

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

network to be employed, the required legal authority, and, in the case

of areas making claims for case-by-case equivalency, the required

demonstration. Also, for enhanced I/M areas, the SIP must include a

description of the evaluation schedule and protocol, the sampling

methodology, the data collection and analysis system, the resources and

personnel for evaluation and related details of the evaluation program,

and the legal authority enabling the evaluation program.

New Hampshire has chosen to implement a test-only I/M network

program design utilizing a contractor to implement the inspection

portion of the program. Legal authority contained in Chapter 353 of the

Laws of 1993 authorizes the NHDOS to implement this contractor operated

test-only program and conduct the program evaluation. The contractor

will be required to use a computer program to randomly select 0.1% of

the vehicles for evaluation testing. The state has indicated in the May

19, 1994 letter that these tests will be monitored by either a NHDOS

referee at the station, the station manager, or a representative of the

NHDES. The required data will be collected by the contractor. NHDES

will analyze this data with the resources assigned to the program.

The May 19, 1994 letter also indicates that the August 19, 1994

submittal will include provisions with appropriate penalties in the

contract to bar employees of the contractor from referring motorists to

particular repair shops.

D. Adequate Tools and Resources

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

resources that will be used for program operation and must discuss how

the performance standard will be met including: (1) a detailed budget

plan describing the source of funds for personnel, program

administration, program enforcement, purchase of necessary equipment

(such as vehicles for undercover audits), and other requirements

discussed throughout, for the period prior to the next biennial self-

evaluation required by the Federal I/M rule, and (2) a description of

personnel resources, the number of personnel dedicated to overt and

covert auditing, data analysis, program administration, enforcement,

and other necessary functions and the training attendant to each

function.

Within the New Hampshire I/M SIP revision, Chapter 353 of the New

Hampshire Laws of 1993 authorizes the collection of $2.75 in addition

to the cost of each inspection to cover the administration, oversight,

and enforcement of the I/M program. The SIP narrative describes the

budget, staffing support, and equipment needed to implement the

program. The State expects to dedicate a staff of 12.5 full-time

equivalent employees to support the program. EPA is concerned that the

resources identified may not be sufficient to administer and oversee

the program properly. The resources identified are significantly lower

than resources other states have planned which will be implementing

programs of approximately the same size. EPA will monitor the program

closely during the first year to determine if administration,

enforcement and oversight are adequate. The submittal also calls for

audit gases (gases used to calibrate emission analyzers) for state

audits to be supplied by the contractor. These gases should be

independently named. In its letter dated June 28, 1994 the state has

agreed to have audit gases independently named by sending them to EPA.

EPA will also ensure that this requirement is met during audits of the

New Hampshire program.

E. Test Frequency and Convenience

Under EPA's I/M rule, the SIP must describe the test schedule in

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

than annual. Also, the SIP must include the legal authority necessary

to implement and enforce the test frequency requirement and explain how

the test frequency will be integrated with the enforcement process. In

addition, in enhanced I/M programs, the SIP must demonstrate that the

network of stations providing test services is sufficient to insure

consumer convenience including short waiting times to get a test and

short driving distances to get to a test center.

The New Hampshire SIP requires biennial inspections for all subject

motor vehicles that are at least one year old. The inspections will be

conducted on odd or even years corresponding to the model year of the

vehicle and timed with the registration process explained in the SIP.

The authority for the enforcement of the testing frequency is contained

in the Chapter 353 of the Laws of 1993. Short waiting times and short

driving distances relating to network design are required by Chapter

353 and are addressed in the RFP and will be required of the chosen

contractor under the contract. The State is requiring, by contract, a

15 minute average waiting time and short driving distances such that

80% of the vehicle population is located within five miles of an

inspection facility, and 95% of the vehicle population is located

within twelve miles of an inspection facility.

F. Vehicle Coverage

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

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

plan for identifying vehicles, including vehicles that are routinely

operated in the area but may not be registered in the area. Also, the

SIP must include a description of any special exemptions authorized by

the program, along with an estimate of the percentage and number of

affected vehicles. Such exemptions need to be accounted for in the

emission reduction analysis. In addition, the SIP must include the

legal authority necessary to implement and enforce the vehicle coverage

requirement.

The New Hampshire program includes coverage of all 1968 and newer

model year gasoline powered light-duty vehicles and light-duty and

heavy-duty trucks, registered, or required to be registered, within the

above-mentioned four county area, and of fleets primarily operated

within an I/M program area. Vehicles will be identified by the NHDOS

vehicle registration database. The NHDOS computer system and

registration data base needs to be updated. In its letter dated May 19,

1994 New Hampshire stated it's intention to update this information

with a table of subject vehicles by model year by August 19, 1994.

Diesels, motorcycles and vehicles over 26,000 lbs Gross Vehicle Weight

Rating GVWR are exempt from the emission testing program. Legal

authority for the vehicle coverage is contained in the New Hampshire

Chapter 353 of the Laws of 1993.

G. Test Procedures and Standards

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

test procedure. The SIP also needs to include the rule, ordinance or

law describing and establishing the test procedures.

The New Hampshire I/M SIP requires IM240 (transient) testing in

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

Procedures, Emission Standards, Quality Control Requirements, and

Equipment Specifications'' dated April 1994 (Technical Guidance). New

Hampshire referenced an older version of this document but in its May

19, 1994 letter to EPA confirmed that the state already has notified

potential vendors of this change through the April 25, 1994

communication the state advised all potential contractors that the most

recent version of EPA specifications and guidelines should be used. The

State requires IM240 and evaporative purge tests on 1981 and later

model year vehicles up to and including 10,000 lbs gross vehicle weight

rating (GVWR). All 1968 thru 1980 vehicles up to, and including, 10,000

lbs GVWR and all 1968 and newer vehicles 10,001-26,000 lbs will be

tested with a two-speed test. All 1979 and newer vehicles will receive

a pressure test. A visual tampering inspection will be conducted on all

1975 and newer vehicles.

The test procedures are authorized by Chapter 353 of NH Laws of

1993 and further defined in the NHDOS Enhanced Emissions Inspection and

Maintenance Program Rules (NH Enhanced I/M Rules). The May 19, 1994

letter stated that the State will establish the cutpoints necessary to

achieve a 20% stringency rate for vehicles being idle tested in 1999.

The need to revise the final cutpoints will be assessed once actual

test data is available from the New Hampshire program. The results of

such assessment could require revision of the State's regulations prior

to the 1999 testing cycle.

H. Test Equipment

Under EPA's I/M rule, the SIP must include written technical

specifications for all test equipment used in the program and must

address each of the requirements in 40 CFR 51.358. The specifications

must describe the emission analysis process, the necessary test

equipment, the required features, and written acceptance testing

criteria and procedures.

The New Hampshire I/M SIP requires the use of the equipment

specifications in EPA's Technical Guidance. As previously stated, New

Hampshire referenced an older version of this document but updated the

reference in the State's May 19, 1994 letter to EPA. The New Hampshire

SIP and RFP address the requirements in 40 CFR 51.358 and include

descriptions of performance features and functional characteristics of

the computerized test systems. The necessary test equipment, required

features, and acceptance testing criteria are mandated by contract

through the RFP.

I. Quality Control

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

control and recordkeeping procedures. The SIP must include the

procedures manual, rule, and ordinance or law describing and

establishing quality control procedures and requirements.

The New Hampshire I/M SIP narrative and RFP contain descriptions

and requirements establishing the quality control procedures in

accordance with the Federal I/M rule. These requirements will help

ensure that equipment calibrations are properly performed and recorded

and that compliance document security is maintained. The quality

control procedures manual will be developed as part of the contract and

is required by New Hampshire in the RFP. New Hampshire's May 19, 1994

letter to EPA states its intent to follow specifications for quality

control per EPA's Technical Guidance. The August 19, 1994 submittal

will address this.

J. Waivers and Compliance via Diagnostic Inspection

Under EPA's I/M rule, the SIP must include a maximum waiver rate

expressed as a percentage of initially failed vehicles. This waiver

rate is used for estimating emission reduction benefits in the modeling

analysis. Also, the State must take corrective action if the waiver

rate exceeds that estimated in the SIP or revise the SIP accordingly

and the emission reductions claimed. In addition, the SIP must describe

the waiver criteria and procedures, including cost limits, quality

assurance methods and measures, and administration. Lastly, the SIP

must include the necessary legal authority, ordinance, or rules to

issue waivers, set and adjust cost limits as required, and carry out

any other functions necessary to administer the waiver system,

including enforcement of the waiver provisions. Cost limits for the

minimum expenditure waivers must be in accordance with the CAA and

EPA's PI/M rule.

In the New Hampshire I/M SIP revision, legal authority for waivers

is set forth in Chapter 353 of the Laws of 1993. Consistent with EPA's

I/M rule, waiver cost limits are established at $450 and adjusted

annually in the New Hampshire enhanced I/M the program. The SIP

revision also includes a 1% waiver rate expressed as a percentage of

initially failed vehicles. This 1% waiver rate was used in the New

Hampshire modeling demonstration. The state is reconsidering this rate

as discussed in section B. above, and will provide additional

justification to support it or revise it in the August 19, 1994

submittal. The SIP provides that, if the waiver rates are higher than

estimated, NHDES will take corrective action to address the deficiency.

The SIP describes three types of waivers the State may allow. Such

waivers include a minimum expenditure waiver, a time extension waiver,

and a one-time hardship waiver. These waivers are consistent with EPA's

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

administration for issuing waivers is ensured by the NHDOS and its

managing contractor and are described in the SIP narrative, Section 6

of the New Hampshire Enhanced I/M rules and the RFP.

Compliance via diagnostic inspections were allowed for all model

years in the original submission, but in a letter dated May 19, 1994,

the state indicated that it will establish procedures and a policy

which will allow compliance by this mechanism only on 1981 and newer

vehicles subject to IM240 tests at final cutpoints or lower. The state

commits to submitting this revision by July 29, 1995. This part of the

New Hampshire SIP provides one basis for EPA's proposal of a

conditional approval of this SIP revision.

K. Motorist Compliance Enforcement

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

the motorist compliance enforcement process, including: (1) A

description of the existing compliance mechanism if it is to be used in

the future, and the demonstration that it is as effective, or more

effective, than registration-denial enforcement; (2) an identification

of the agencies responsible for performing each of the applicable

activities in this section; (3) a description of and accounting for all

classes of exempt vehicles; and (4) a description of the plan for

testing fleet vehicles, rental car fleets, leased vehicles, and any

other special classes of subject vehicles, for example, those operated

in (but not necessarily registered in) the program area. Also, the SIP

must include a determination of the current compliance rate based on a

study of the system that includes an estimate of compliance losses due

to loopholes, counterfeiting, and unregistered vehicles. Estimates of

the effect of closing such loopholes and otherwise improving the

enforcement mechanism need to be supported with detailed analyses. In

addition, the SIP needs to include the legal authority to implement and

enforce the program. Lastly, the SIP needs to include a commitment to

an enforcement level to be used for modeling purposes and to be

maintained, at a minimum, in practice.

The State has chosen to use registration suspension as its primary

enforcement mechanism. Motorists will have 45 days from the

registration date to comply with the I/M program requirements or their

vehicle registration will be suspended. The motorist compliance

enforcement program will be implemented by the NHDOS. The SIP does not

describe the computer matching system necessary to implement this

system. Motorcycles and diesel vehicles are exempt from this program as

permitted by the I/M rule. Fleet vehicles, rental car fleets, and

leased vehicles are required to meet the same program requirements as

all other subject vehicles. The State has not yet developed a plan for

fleet vehicles, but requires this as part of the contract. The State

has not addressed tracking out-of-state exemptions. The State has

estimated a 99% compliance rate without a detailed description of how

this will be accomplished. The legal authority to implement and enforce

the program is included in Chapter 353 of the Laws of 1993. In its

letters of May 19, 1994 and June 28, 1994, the State submitted a

detailed description of the enforcement process and committed to

justifying the compliance rate, or revising the compliance rate in the

SIP and to address the other deficiencies described in this section by

August 19, 1994.

L. Motorist Compliance Enforcement Program Oversight

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

enforcement program oversight and information management activities.

The New Hampshire I/M SIP did not address this area specifically.

However, in its letter dated June 28, 1994, New Hampshire committed to

comply with 40 CFR 51.362, motorist compliance enforcement oversight

and explained that the SIP committed to achieving the highest quality

assurance and quality control to meet this requirement.

M. Quality Assurance

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

quality assurance program, and written procedures manuals covering both

overt and covert performance audits, record audits, and equipment

audits. This requirement does not include materials or discussion of

details of enforcement strategies that would ultimately hamper the

enforcement process.

The New Hampshire I/M SIP revision includes a description of its

quality assurance program. The program includes overt and covert audits

of all emission inspectors and emission inspection lanes and will be

conducted by the NHDOS. Procedures and techniques for overt and covert

performance, record, and equipment audits will be developed by the

state or a contractor, given to auditors and updated as needed. The SIP

does not indicate whether audit results will be recorded and retained

in station and inspector files, whether records are of sufficient

detail to support civil and administrative hearings, whether stations

and inspectors suspected of violating program regulations will be

audited more frequently, or whether covert auditors will be rotated. By

its letter dated May 19, 1994, the state commits to addressing these

points by August 19, 1994. The state has assured EPA that all required

training elements are included in the auditor training program and that

this will be detailed in the SIP submission of August 19, 1994.

N. Enforcement Against Contractors, Stations and Inspectors

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

the legal authority for establishing and imposing penalties, civil

fines, license suspension, and revocations. In the case of state

constitutional impediments to immediate suspension authority, the state

Attorney General must furnish an official opinion for the SIP

explaining the constitutional impediment as well as relevant case law.

Also, the SIP must describe the administrative and judicial procedures

and responsibilities relevant to the enforcement process, including

which agencies, courts, and jurisdictions are involved; who will

prosecute and adjudicate cases, and other aspects of the enforcement

program. In addition, the SIP must describe the resources to be

allocated to this enforcement function and the source of funding for

such resources. In states without immediate suspension authority, the

SIP needs to demonstrate that sufficient resources, personnel, and

systems are in place to meet the three day case management requirement

for violations that directly affect emission reductions.

The New Hampshire I/M SIP includes specific penalties in its

enforcement against contractors, stations and inspectors in accordance

with EPA's I/M rule. The SIP includes the State's enforcement

procedures which can be pursued through either contract provisions or

Section 16 of the NH Enhanced I/M Rules. The NHDOS has the authority to

immediately suspend a station inspector for violations that directly

affect emission reduction benefits. Legal authority for establishing

and imposing penalties, civil fines, license suspension, and

revocations are contained in the New Hampshire Chapter 353 of the Laws

of 1993, and Enhanced Emissions Inspection and Maintenance Program

Rules (NHDOS). In addition, contractual enforcement mechanisms are

contained in the RFP. As discussed in the I/M SIP in Section M. NHDOS

referees will spend 20 hours per week in each inspection station.

NH Enhanced I/M Rule, Section 16 does not require imposition of

substantial penalties as required by EPA's I/M rule (six month

suspension) or equivalent retainage on the first offense by inspectors

for violations that directly affect emission reduction benefits.

Section M. of the New Hampshire narrative indicates that mandatory

retraining will be required of inspectors for violations, however, this

is not stated in the regulation. In its letter to EPA dated June 28,

1994 New Hampshire stated that mandatory retraining will be a

requirement of the contract, and that Section 16 will be revised to be

consistent with the penalty required by the EPA rule. The state commits

to submitting the revision to Section 16 by July 29, 1995. This part of

the New Hampshire SIP provides another basis for EPA's proposal of a

conditional approval of this SIP revision.

O. Data Analysis and Reporting

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

collected.

The New Hampshire I/M SIP narrative, Section O, and Section 18 of

the NH Enhanced I/M Rule provides for collecting data required by EPA

regulation and submitting required reports.

P. Inspector Training and Licensing or Certification

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

training program, the written and hands-on tests, and the licensing or

certification process.

The New Hampshire I/M SIP provides for the implementation of

training, certification, and refresher programs for emission

inspectors. The SIP describes this program and curriculum, including

written and hands-on testing required at least every two years. All

inspectors will be required to be certified to inspect vehicles in the

New Hampshire I/M program. In the letter of May 19, 1994, New Hampshire

describes the written and hands-on tests, how they will be developed,

and how the State will audit contractor administered tests.

Q. Improving Repair Effectiveness

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

technical assistance program to be implemented, a description of the

procedures and criteria to be used in meeting the performance

monitoring requirements of this section for enhanced I/M programs, and

a description of the repair technician training resources available in

the community.

The New Hampshire SIP includes a description of the technical

assistance, performance monitoring and repair technician training

programs to be implemented. The State did not specify a mechanism to

regularly inform repair facilities regarding changes to the inspection

program, training course schedules, common problems, potential

solutions for particular engine families, diagnostic tips, repairs, and

other assistance issues. In a letter dated May 19, 1994 the state

agreed to provide a plan to EPA by August 19, 1994 that will provide

the means to transmit the above-referenced information to the repair

community. The NHDOS, as described in the SIP, will also ensure that a

repair technician hotline will be available for repair technicians.

Performance monitoring statistics of certified repair facilities will

be provided to motorists whose vehicles fail the I/M tests in enhanced

I/M areas. The State will also ensure that adequate repair technician

training exists through the establishment of an advisory workgroup.

R. Compliance With Recall Notices

Under EPA's I/M rule, the SIP must describe, for enhanced I/M

programs, the procedures used to incorporate vehicle recall lists

provided by EPA into the inspection or registration database, the

quality control methods used to ensure that recall repairs are properly

documented and tracked, and the method (inspection failure or

registration denial) used to enforce the recall requirements.

The NH RFP Section 6.9 requires the contractor to notify vehicle

owners of recalls in accordance with EPA requirements, NH Enhanced I/M

Rules Section 4.F.1.h., requires that vehicle owners whose vehicle is

included in an emission recall, comply with the recall requirement in

order to be inspected. Motorists with unresolved recall notices will be

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

for inspection. In the May 19, 1994 submission, New Hampshire explains

that the RFP requires tracking and verification of recall repairs. Such

data will include reference to the recall campaign number.

S. On-Road Testing

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

of the on-road testing program required in enhanced I/M areas,

including the types of testing, test limits and criteria, the number of

vehicles (the percentage of the fleet) to be tested, the number of

employees to be dedicated to the on-road testing effort, the methods

for collecting, analyzing, utilizing, and reporting the results of on-

road testing and, the portion of the program budget to be dedicated to

on-road testing. Also, the SIP must include the legal authority

necessary to implement the on-road testing program, including the

authority to enforce off-cycle inspection and repair requirements. In

addition, emission reduction credit for on-road testing programs can

only be granted for a program designed to obtain significant emission

reductions over and above those already predicted to be achieved by

other aspects of the I/M program. The SIP must include technical

support for the claimed additional emission reductions.

The New Hampshire I/M SIP includes a description of its on-road

testing program. The testing program will include no less than 0.5% of

the subject vehicles as required by Section 9 of the NH Enhanced I/M

Rules. The program will be included as part of the testing contract and

the contractor will provide data collection analysis and utilize this

data to identify high emitting vehicles. The state has not established

standards for this program or identified the type of testing that will

be conducted. The legal authority for this program is contained in the

New Hampshire I/M Chapter 353 of the Laws of 1993. In a letter dated

May 19, 1994, the state commits to develop and submit standards to EPA.

The state commits to submitting this revision by July 29, 1995. This

part of the New Hampshire SIP provides the third basis for EPA's

proposal of a conditional approval of this SIP revision.

T. Concluding Statement

A more detailed analysis of the State's I/M SIP submittal and how

it meets the Federal requirements is contained in the EPA's technical

support document dated June 28, 1994, which is available from the EPA-

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

the SIP revision submitted are based on the requirements of Section 182

of the CAA and EPA's I/M regulations. Based on these requirements, EPA

developed a detailed I/M approvability checklist to be used nationally

to assist in determining whether I/M programs meet the requirements of

the CAA and the federal I/M rule. The checklist is formatted by stating

the Federal requirement by each section, and followed by information

indicating whether or not the New Hampshire program meets the criteria

and where in the New Hampshire SIP submittal the requirements are

addressed. This checklist, the CAA and EPA's I/M regulations formed the

basis for EPA's technical review. EPA has reviewed the I/M SIP revision

submitted by New Hampshire. Using the criteria stated above, the New

Hampshire regulations and accompanying materials contained in the SIP

represent an acceptable plan to comply with the I/M requirements and

meet all the criteria required for conditional approval of such SIP

revision.

IV. New Hampshire I/M Committal SIP

On September 27, 1993, EPA proposed conditional approval of the New

Hampshire I/M committal SIP submitted on January 12, 1993, including a

schedule for implementation of the program. At that time, EPA believed

that conditional approvals were appropriate for I/M committal SIPs

because the States could not be expected to begin developing an I/M

program meeting the requirements of the CAA and the I/M regulations

until the I/M regulations were adopted as a final rule which occurred

on November 5, 1992. In a letter dated October 21, 1993, the Natural

Resource Defense Council (NRDC) commented on the proposed approval of

the committal SIP arguing that States should have submitted full I/M

SIPs by November 15, 1992. In addition, in a Court order dated May 6,

1994, the United States Circuit Court of Appeals for the District of

Columbia concluded, in the context of an NRDC lawsuit concerning I/M,

that EPA's acceptance of I/M committal SIPs was contrary to law and

improperly delayed SIP submissions beyond the statutory deadlines.

Further, the Court directed EPA to review and either approve or

disapprove by no later that September 15, 1994 all I/M SIPs already

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

the New Hampshire SIP submitted on March 1, 1994, April 20, 1994, April

28, 1994, May 19, 1994, and June 28, 1994 and will not be taking

further action on the ``committal'' I/M SIP submitted by the State of

New Hampshire on January 12, 1993.

The conditional approval proposed today is based upon New

Hampshire's commitment to develop and submit on-road testing standards,

compliance via diagnostic procedures, and revised inspector penalties

by July 29, 1995. If this commitment is not met, the conditional

approval will convert to a disapproval. In the alternative, EPA

proposes to disapprove the New Hampshire I/M SIP revision if the

submittals described in this package are not revised by August 19, 1994

or are incomplete.

Proposed Action

EPA is proposing to conditionally approve or in the alternative

disapprove New Hampshire's enhanced inspection and maintenance SIP.

Pursuant to Section 110(k)(4) of the Act, the conditional approval

is based on the commitment articulated by New Hampshire in its May 19,

1994 and June 28, 1994 letters to submit a revised SIP revision by July

29, 1995, that complies with the requirements for on-road testing,

compliance via diagnostic inspection, and inspector penalties. Section

110(k)(4) of the CAA provides that, if a state fails to comply with its

commitment, such conditional approval will convert to a disapproval.

In the alternative, this action proposes to disapprove the New

Hampshire I/M SIP revision if New Hampshire does not adequately address

the issues articulated in this notice by on or before August 19, 1994.

Under 5 U.S.C. 605(b), I certify that this SIP revision will not

have a significant economic impact on a substantial number of small

entities. (See 46 FR 8709.)

The EPA requests comments on this proposal including the EPA's

proposal to conditionally approve or, in the alternative, disapprove

the I/M SIP for New Hampshire as meeting the requirements of the CAA

and EPA's Federal I/M rule. As indicated at the outset of this notice,

the EPA will consider any comments received by August 17, 1994 and will

make the TSD available upon request. EPA will also consider any

comments received by on or before August 29, 1994 regarding the

information specified herein that is due by August 19, 1994 from New

Hampshire.

This action has been classified as a Table 1 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993,

memorandum from Michael H. Shapiro, Acting Assistant Administrator for

Air and Radiation. A future notice will inform the general public of

these tables.

Under 5 U.S.C. Section 605(b), the Administrator certifies that SIP

approvals under Sections 107, 110 and 172 of the Clean Air Act will not

have a significant economic impact on a substantial number of small

entities. SIP approvals (or redesignations) do not create any new

requirements but simply approve requirements that are already state

law. SIP approvals (or redesignations), therefore, do not add any

additional requirements for small entities. Moreover, due to the nature

of the Federal-State relationship under the Clean Air Act, preparation

of a flexibility analysis for a SIP approval would constitute Federal

inquiry into the economic reasonableness of the State actions. The

Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co. v. EPA., 427 U.S. 246, 96 S. Ct. 2518

(1976); 42 U.S.C. Section 7410(a)(2).

If EPA issues a final disapproval or if the conditional approval is

converted to a disapproval under section 110(k), based on the state's

failure to meet the commitment, it will not affect any existing state

requirements applicable to small entities. Federal disapproval of the

state submittal does not affect its state-enforceability. Moreover,

EPA's disapproval of the submittal does not impose a new federal

requirement. Therefore, EPA certifies that in the event EPA disapproves

the state submittal, this disapproval action would not have a

significant impact on a substantial number of small entities because it

would not remove existing state requirements nor does it substitute a

new federal requirement.

Under Executive Order 12866, [58 FR 51735 (October 4, 1993)] the

Agency must determine whether the regulatory action is ``significant''

and therefore subject to OMB review and the requirements of the

Executive Order. The Order defines ``significant regulatory action'' as

one that is likely to result in a rule that may:

(1) have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities;

(2) create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) materially alter the budgetary impact of entitlement, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

It has been determined that this rule is not a ``significant

regulatory action'' under the terms of Executive Order 12866 and is

therefore not subject to OMB review.

The Administrator's decision to approve or disapprove the SIP

revision will be based on whether it meets the requirements of Section

110(a)(2) (A)-(K) and 110(a)(3) of the Clean Air Act, as amended, and

EPA regulations in 40 CFR part 51.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,

Reporting and recordkeeping requirements.

Authority: 42 U.S.C. 7401-7642.

Dated: June 27, 1994.

John P. DeVillars,

Regional Administrator, Region I.

[FR Doc. 94-17375 Filed 7-15-94; 8:45 am]

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