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

[ME13-1-6645; A-1-FRL-5076-6]

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: Final rule.

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SUMMARY: In this action, EPA is conditionally approving a revision to

the Maine Department of Environmental Protection (DEP) State

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

SIP revision was originally submitted to EPA for approval on November

1, 1993. This submittal was supplemented by a letter from the

Commissioner of DEP dated May 26, 1994 describing additional changes

Maine is making to the I/M program, and a commitment to provide

additional material by July 22, 1994 and to address issues relating to

the low mileage waiver by specified dates. On July 21, 1994, the State

of Maine submitted a revised SIP submittal. The SIP revision includes

Chapter 128 of an amended 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 is conditionally approving the SIP revision on I/M, under

section 110(k)(4) of the CAA, based on commitments made by Maine in its

May 26, 1994 letter and reiterated in the July 21, 1994 submittal.

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

III.F below as well as the owner-performed repair issue described in

III.J 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 after EPA approval, EPA's conditional approval will convert to a

disapproval. The content of the May 26, 1994 letter, and the July 21,

1994 revised SIP submission are described in detail in this notice.

EFFECTIVE DATE: This final rule is effective on December 5, 1994.

ADDRESSES: Copies of the documents relevant to this action are

available for public inspection, by appointment, during normal business

hours at the Air, Pesticides and Toxics Management Division, U.S.

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

floor, Boston, MA; Air and Radiation Docket and Information Center,

U.S. Environmental Protection Agency, 401 M Street, SW., (LE-131),

Washington, DC; 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: On July 8, 1994 (59 FR 35072), EPA published

a notice of proposed rulemaking (NPR) for the State of Maine. The NPR

proposed conditional approval or, in the alternative, disapproval of

Maine's enhanced inspection and maintenance program in Androscoggin,

Cumberland, Kennebec, Knox, Lincoln, Sagadahoc, and York Counties. This

SIP revision was originally submitted to EPA for approval on November

1, 1993.

This submittal was supplemented by a letter from the Commissioner

of DEP dated May 26, 1994 describing additional changes Maine is making

to the I/M program, and a commitment to provide additional material by

July 22, 1994 and to address issues relating to the low mileage waiver

by specified dates. On July 21, 1994, the State of Maine submitted a

revised SIP submittal.

Specific requirements of EPA's I/M regulations and the rationale

for EPA's proposed action were explained in the NPR and will not be

restated here. This rulemaking explains how the State fulfilled the

requirements articulated in the May 26, 1994 letter from DEP as they

were described in the NPR. While no public comments were received on

this NPR, substantial public comments were received on a related NPR

published on June 23, 1994 (59 FR 32390). In that package, EPA proposed

approval of a voluntary I/M program in Kennebec, Knox, Lincoln and

Sagadahoc counties, without evaluating whether or not it met any

requirements of the federal I/M rule. One hundred seventy-four comment

letters were received on that package. Comments centered on a potential

emissions trade, which would have allowed nitrogen oxide emission

reductions from the I/M program, not reqired by federal law, to be

traded to promote industrial growth. Though it was reported by the

local media as such, the NPR did not propose approval of an emissions

trade. In addition, while many supported I/M, some of the commenters

questioned the need for I/M in Maine. Each of the letters which had a

return address was responded to in writing individually from Region 1's

Air Director, with the exception of comments received from the Natural

Resources Council of Maine and the American Lung Association of Maine.

A summary of all these comments, and EPA's response is included in

section IV of this document. Again, no comments were received on the

July 8, 1994 NPR to which this final action specifically pertains.

The I/M SIP includes Chapter 128 of an amended 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. 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 moderate ozone nonattainment counties in

Maine. This revision applies to the Maine counties of Androscoggin,

Cumberland, Kennebec, Knox, Lincoln, Sagadahoc, and York. At the time

the NPR was prepared, the State was proposing revisions to its I/M

regulations and was undergoing rulemaking action to address outstanding

deficiencies in the rules submitted as part of the November 1, 1993 SIP

revision. The July 21, 1994 submittal includes those revised adopted

rules and a detailed narrative description of the program. EPA is

taking final action to conditionally approve the program because the

state has met the requirements of the I/M rule except for the items

which provide the basis for the conditional approval.

The NPR stated that the only outstanding issue which could not be

resolved in time for the July 21, 1994 submission (and which therefore

formed the basis of the conditional approval) was the ``low mileage''

waiver (LMW). Conditional approval for the LMW issue 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. Coincident with EPA's processing of the NPR,

however, Maine adopted a change to the regulation that is inconsistent

with the federal I/M rule. Specifically, Maine allowed for owner-

performed repairs for select emission control devices for 1980 and

newer vehicles to count toward the minimum waiver expenditure provided

by section 51.360 of the federal I/M rule. Section 51.360 does not

allow the cost of parts for these newer vehicles to count toward the

waiver limit. However, the state committed in its May 26, 1994 letter

and reiterated in the July 21, 1994 submittal that it would issue

waivers only when the requirements of EPA's waiver requirements are

met. EPA construes this as a commitment to adopt the necessary

corrective measures which in turn provides an additional basis for the

conditional approval proposed in the July 8, 1994 NPR. EPA believes

this deviation in the area of owner-performed repairs, referred to

herein as the ``OPR issue,'' provides an additional basis for the

conditional approval proposed in the July 8, 1994 NPR. Such conditional

approval is appropriate because of the State's commitment to meet all

of EPA's waiver requirements in its May 26, 1994 letter and in the July

21, 1994 submittal.

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 and the July 21, 1994

submittal commit 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. To fulfill

its commitment to meet all requirements of 40 CFR 51.360 Maine must

also make the necessary regulatory changes to address the OPR issue no

later than September 1, 1995. Should the State fail to meet the above

commitments, the conditional approval will convert to a disapproval.

I. Clean Air Act Requirements

Background

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

184(b)(1)(A) of the Clean Air Act (CAA) 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

must implement a program meeting the basic I/M performance standard.

Maine is affected by these provisions in some 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.

EPA has reviewed the November 1, 1993, May 26, 1994 and July 21,

1994 State submittals 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 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 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, May 26, 1994, and July 21, 1994, the State of

Maine submitted various elements which, taken together, constitute 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 amended

rules submitted on July 21, 1994, were effective on June 28, 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. With the changes the

State made in its July 21, 1994 submittal, 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 (although 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, Maine's demonstration of how the I/M

program meets the federal SIP requirements, as well as the changes to

the Maine I/M program as submitted on July 21, 1994, 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 the Clean Air Act and EPA's rule. Maine is implementing the

enhanced I/M program throughout 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 intended to take

separate rulemaking action on the portion of the Maine submittal

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

otherwise required to adopt I/M. Those counties include Kennebec, Knox,

Lincoln, and Sagadahoc. Although these areas are not required to

implement enhanced or basic I/M, the State of Maine had requested

expedited approval for those areas in order to make the resultant

emission reductions federally enforceable. Therefore, EPA moved forward

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

Kennebec, Lincoln, and Sagadahoc Counties. EPA proposed separate action

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

disapproving this SIP. However, by this action, Maine's I/M program is

conditionally approved and the revised SIP requirements will apply to

all I/M areas including the optional areas. Once Maine has fulfilled

its commitments regarding the ``low mileage'' waiver and the owner-

performed repair issues, EPA will withdraw the separate rulemaking

action approving the optional I/M program since that action would be

superseded by such final (unconditional) approval in the context of

this rulemaking.

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 impact of the allowed program exemptions (for

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

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

26, 1994 and July 21, 1994 submittals, the DEP provided a commitment to

maintain the level of compliance and waivers assumed in the modeling.

The DEP also provided additional detail on this modeling effort,

including justification for the modeling inputs assumed in the revised

submittal. The effect of the ``low mileage'' waiver (LMW) was not

evaluated in this modeling effort. One reason this action is a

conditional approval is to allow the State to demonstrate that the

effect of the LMW is negligible, or to fulfill its commitment to make

necessary legislative and regulatory changes if such LMW 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

July 21, 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. 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.

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. As Maine committed in the May 28,

1994 letter, the July 21, 1994 submittal includes additional detail on

the funding and description of resources to be used for implementation

of the enhanced I/M program. This narrative describes the budget,

staffing support, and equipment needed to implement the program. The

revised regulations provide between a $2.00 and $4.00 fee per

inspection to be used to administer the program.

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. This is

described in more detail in the July 21, 1994 submittal. The authority

for enforcing the testing frequency is contained in the revised Maine

I/M rule. 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 or less per test (except for 7 days per

month) 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, Maine has shown that such

exemptions will not prevent the program from achieving the performance

standard. Additional detail supporting this conclusion was submitted by

the State on July 21, 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 submitted by Maine on July

21, 1994 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 and the July 21, 1994 submittal from the DEP commit 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 is conditionally approving the submission based on the above-

referenced commitments by DEP. 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 applicable milestone. Under 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.'' 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 fuel system

integrity and functionality for 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.

In approving this action, EPA expects Maine to amend these procedures

to ensure that the latest EPA procedures will be used in the program,

if the EPA guidance is revised in the future.

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.

In its July 21, 1994 submission, Maine provided written equipment

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

of EPA's I/M rule. The Maine SIP submissions and their appendices

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, the RFP, and the contract included as

part of the Maine July 21, 1994 submittal contain descriptions and

requirements establishing the quality control procedures described in

accordance with the federal I/M rule and are 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 complies with

all specifications for quality control set forth in Sec. 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 exhaust emission testing

because the state does not require such vehicles to meet the $450

waiver minimum. Nevertheless, 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 Reasonable Further Progress, 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, Model Year 1981 and newer. This waiver rate is used in the

modeling demonstration. The DEP has committed in the July 21, 1994

submittal, that if the waiver rate is higher than estimated as

determined by its program reports, the State will take corrective

action to address the deficiency. Furthermore, 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

detailed in the SIP narrative, submitted on July 21, 1994.

One portion of the revised Maine rule represents a deviation from

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

allows for owner-performed repairs for select emission control devices

(specifically, the catalytic converter, exhaust pipes and hardware,

fuel filler cap, PCV valve, thermostatic air cleaner, and air pump) for

1980 and newer vehicles to count toward the minimum waiver expenditure

set forth in section 51.360 of the federal I/M rule. However, as

mentioned above, section 51.360 also requires that the State commit to

maintaining a maximum level of waivers in this program. The State has

committed to a 3 percent waiver limit, and to taking necessary steps to

ensure that this rate is not exceeded. It is the level of waivers that

greatly affects the level of emission reductions achieved from the

program. Maine's deviation in the area of owner-performed repairs is

very narrow since the list of emission control devices for which costs

can count toward the waiver is expressly limited. Based on these

considerations and the State's commitment to ensuring an allowable

maximum waiver rate, EPA believes that a specified and clearly limited

deviation from the federal I/M rule in the area of owner-performed

repairs will not significantly affect the level of reductions achieved

from the I/M program.

The State committed in its May 26, 1994 letter, reiterated in the

July 21, 1994 submittal, that Maine would issue waivers only when the

requirements of EPA's waiver requirements were met. In its May 26, 1994

letter, the State committed to amend the SIP to not allow owner repair

costs to count toward the $450 waiver amount for 1980 and later model

year vehicles. The July 21, 1994 submittal stated that Maine would

issue waivers ``only when the requirements of 40 CFR 51.360 are met.''

EPA construes this as a commitment to adopt the necessary corrective

measures, which in turn provides an additional basis for the

conditional approval proposed in the July 8, 1994 NPR. EPA has

commented previously on the waiver provisions, including the OPR issue

and the NPR proposed a conditional approval so that public notice on

these issues was sufficient. For these reasons, EPA is conditionally

approving this SIP revision. Accordingly, this notice requires the DEP

to revise 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 OPR waiver allowance for 1980 and newer cars by

September 1, 1995. Of course, the State's 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 applicable milestone. The September 1, 1995 date for

final submittal will not be revised under any circumstances.

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 July 21, 1994 submittal. 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 July 21, 1994

submittal, 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 60 day

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 for 1981 model year

or newer vehicles, or $125, for older than 1981 model year vehicles.

The only classes of vehicles exempt from the I/M 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.

The compliance rate for the program was estimated at 96%. The legal

authority to implement and enforce the program is included in the Maine

law and in DEP and BMV rules as supplied on July 21, 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. These

program oversight and information management activities were described

in the July 21, 1994 SIP narrative, and include: establishing

procedures for personnel engaged in I/M document handling and

processing, supporting a communications network for the State's

oversight and management requirements, and establishing an I/M database

to compare to the registration database for purposes of determining

program effectiveness. In addition, the SIP describes the procedures to

be followed in identifying noncomplying vehicles, timeframes for

confiscation of suspended vehicle registration certificates and plates,

timeframes for issuing summonses to appear in court, and the associated

fines for failure to comply.

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 July 21, 1994 submittal from Maine includes a description of

the quality assurance program. According to that submittal, 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 prepared and

provided to auditors and updated as needed. The July 21, 1994

submission also includes a commitment to conduct a minimum of two (2)

covert audits per lane per year.

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 SIP submittal dated July 21,

1994, the State's enforcement procedures can be pursued through

contractual or regulatory action. The DEP has 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 contract. The DEP is planning to assign employees

to covert and overt auditing and commit additional resources required

for enforcement oversight. These audits and oversight functions will be

funded by the inspection fee.

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 and July 21, 1994 submittals,

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, as required by 51.366 of the federal 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 and July 21, 1994 submittals from the DEP provide

detail on the inspector training program. The Maine I/M SIP provides

for implementation of training, licensing, and refresher programs for

emission inspectors. The SIP describes the program and curriculum

including written and hands-on testing at least once every two years.

All inspectors will be required to be licensed 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 July 21, 1994 submittal, Maine provided 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 July 21, 1994 submittal, the DEP has also ensured that a repair

technician hotline be available for repair technicians, and issued a

contract to accomplish this. 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 SIP includes a detailed public information and consumer

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

Sec. 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 ensure 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 ensures that vehicles subject to the

enhanced I/M program 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 through

an electronic database, updated on a quarterly basis. Motorists with

unresolved recall notices will be required to show proof of compliance

or will be denied the opportunity for inspection. The revised rules of

June 28, 1994 address this issue, and were submitted on July 21, 1994.

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.

The I/M SIP submitted on July 21, 1994 includes 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

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 as part of the modeling used to

demonstrate 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 submittals from the State represent an

acceptable plan to comply with the I/M requirements and meet all the

criteria required for EPA to conditionally approve the SIP.

Due to recent, well-publicized criticism of initial I/M testing in

Maine, an agreement appears to have been reached between

representatives of the Governor's Office, the Maine Legislature, the

DEP, and Systems Control, Maine's I/M contractor. The agreement calls

for a suspension of mandatory vehicle testing until March, 1995 so that

improvements can be made to ensure a fair and equitable program. Since

EPA's I/M rule permits the phase-in of emissions testing in areas

implementing new test-only programs (See 40 CFR 51.373(c)(2)), the

agreement in no way precludes EPA from conditionally approving the

Maine I/M SIP as set forth in this notice.

IV. Response to Comments

While no public comments were received on this NPR, substantial

public comments were received on a related NPR published on June 23,

1994 (59 FR 32390). That package proposed approval of an I/M program in

Kennebec, Knox, Lincoln and Sagadahoc, with no judgement as to whether

or not it met any requirements of the federal I/M rule. One hundred

seventy-four comment letters were received on that package. Comments

centered on a proposed trade which would have allowed nitrogen oxide

emission reductions not required by federal law from the I/M program to

be traded to promote industrial growth. Though it was reported by local

media as such, EPA's notice did not propose to approve such a trade. In

addition, while many commenters supported I/M, some questioned the need

for I/M in Maine. The Maine Lung Association commented in support of

expanding the program to the four optional counties. Each of the

letters which had a return address were responded to in writing

individually from Region l's Air Director, with the exception of the

Natural Resources Council of Maine and the American Lung Association of

Maine. A summary of these comments, and EPA's response is included in

this package. No comments were received on the July 8, 1994 NPR to

which this final action specifically pertains.

The Natural Resources Council of Maine and the American Lung

Association of Maine commented the EPA should wait to approve the use

of NOX credits for trading purposes until an attainment

demonstration has been submitted by the state and approved by EPA. This

would allow both parties to determine if any credits generated by

expanding the program area were surplus and available for trading to

meeting offset requirements. Surplus credits are credits beyond those

mandated by CAA requirements and necessary for attainment or Reasonable

Further Progress. EPA agrees with this comment and will continue to

work with the state of Maine to ensure that any credits generated by

the I/M program used to meet offset requirements are surplus credits.

Final Action

EPA is conditionally approving the Maine I/M program submitted by

the State, on November 1, 1993, May 26, 1994, and July 21, 1994.

Pursuant to section 110(k)(4) of the CAA, EPA is conditionally

approving 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, will hold a public hearing on revised

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

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

regulations. The state must also address the above described issues

related to owner performed repairs according to the same schedule.

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

commitment, such conditional approval will convert to 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, by no later than the date of the applicable

milestone. Under 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.)

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 document 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. 7410(a)(2).

If EPA issues a final disapproval or if this 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, such disapproval would not have a significant

impact on a substantial number of small entities because it would not

remove existing state requirements nor would 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 is based on whether it meets the requirements of sections

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, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

Note: Incorporation by reference of the State Implementation

Plan for the State of Maine was approved by the Director of the

Federal Register on July 1, 1982.

Dated: September 15, 1994.

Carol M. Browner,

Administrator.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart U--Maine

2. Section 52.1019 is added to subpart U to read as follows:

Sec. 52.1019 Identification of plan--conditional approval.

(a) The following plan revisions were submitted on the dates

specified.

(1) On November 1, 1993 the Maine Department of Environmental

Protection submitted a revision to the State Implementation Plan (SIP)

for an enhanced Inspection and Maintenance (I/M) program in

Androscoggin, Cumberland, Kennebec, Knox, Lincoln, Sagadahoc, and York

counties. This submittal was supplemented by a letter dated May 26,

1994 describing additional changes Maine is making to the I/M program,

and a commitment to provide additional material by July 22, 1994. On

July 21, 1994, Maine submitted a revised submission. In these

submissions, the State submitted adequate legal and regulatory

authority to establish and implement an I/M program which meets the

requirements of the Clean Air Act by September 1, 1995.

(i) Incorporation by reference.

(A) Letters from the Maine Department of Environmental Protection

dated November 1, 1993, May 26, 1994 and July 21, 1994 submitting a

revision to the Maine State Implementation Plan.

(B) The ``Motor Vehicle Emission Inspection Program'' regulation at

Chapter 128 of the Department of Environmental Protection regulations

effective June 28, 1994.

(C) Title 38, Chapter 28, Motor Vehicle Inspection Program, and

Title 29, Section 102-C, Motor Vehicle Inspection Requirement for

Vehicle Registration, which are state law citations authorizing the

above regulation, both effective June 30, 1992 and revised effective

October 13, 1993.

(ii) Additional materials. Nonregulatory, administrative portions

of the November 1, 1993, May 26, 1994, and July 21, 1994 submissions to

the Maine State Implementation Plan.

(b) [Reserved].

[FR Doc. 94-27312 Filed 11-2-94; 8:45 am]

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