Approval and Promulgation of Air Quality Implementation Plans; Kentucky; Basic Motor Vehicle Inspection and Maintenance Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[KY77-1-6553a; FRL-5257-8]

Approval and Promulgation of Air Quality Implementation Plans;

Kentucky; Basic Motor Vehicle Inspection and Maintenance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is approving a state implementation plan (SIP) revision

submitted on November 12, 1993, by the Commonwealth of Kentucky,

through the Kentucky Natural Resources and Environmental Protection

Cabinet. This revision modifies the implementation of a basic motor

vehicle inspection and maintenance (I/M) program in Jefferson County,

Kentucky, which will include commuter vehicles in the program.

DATES: This final rule will be effective September 26, 1995 unless

adverse or critical comments are received by August 28, 1995. If the

effective date is delayed, timely notice will be published in the

Federal Register.

ADDRESSES: Written comments on this action should be addressed to Dale

Aspy at the EPA Regional office listed below.

Copies of the documents relative to this action are available for

public inspection during normal business hours at the following

locations. The interested persons wanting to examine these documents

should make an appointment with the appropriate office at least 24

hours before the visiting day.

Air and Radiation Docket and Information Center (Air Docket), U.S.

Environmental Protection Agency, 401 M Street, SW, Washington, DC

20460.

Environmental Protection Agency, Region IV, Air Programs Branch, 345

Courtland Street, NE, Atlanta, Georgia 30365.

Air Pollution Control District of Jefferson County 850 Barrett Avenue,

Suite 205, Louisville, Kentucky 40204.

Division for Air Quality, Department for Environmental Protection,

Natural Resources and Environmental Protection Cabinet, 316 St. Clair

Mall, Frankfort, Kentucky 40601.

FOR FURTHER INFORMATION CONTACT: Dale Aspy, Mobile Source Planning

Unit, Regulatory Planning and Development Section, Air Programs Branch,

Air,

[[Page 38701]]

Pesticides & Toxics Management Division, Environmental Protection

Agency, Region IV, 345 Courtland Street, NE, Atlanta, Georgia 30365.

The telephone number is 404/347-3555, extension 4214. Reference file KY

KY77-1-6553.

SUPPLEMENTARY INFORMATION:

I. Background

The Clean Air Act as amended in 1990 (the Act) requires that most

ozone nonattainment areas adopt either ``basic'' or ``enhanced'' I/M

programs, depending on the severity of the problem and the population

of the area. The moderate ozone nonattainment areas, plus marginal

ozone areas with existing or previously required I/M programs, fall

under the ``basic'' I/M requirements. Enhanced programs are required in

serious, severe, and extreme ozone nonattainment areas with 1980

urbanized populations of 200,000 or more.

The Act requires states to make changes to improve existing I/M

programs or to implement new ones for certain nonattainment areas.

Section 182(a)(2)(B) of the Act directed EPA to publish updated

guidance for state I/M programs, taking into consideration findings of

the Administrator's audits and investigations of these programs. The

Act further requires each area required to have an I/M program to

incorporate this guidance into the SIP. Based on these requirements,

EPA promulgated I/M regulations on November 5, 1992 (57 FR 52950,

codified at 40 Code of Federal Regulations (CFR) 51.350-51.373).

The I/M regulation establishes minimum performance standards for

basic I/M programs as well as requirements for the following: network

type and program evaluation; adequate tools and resources; test

frequency and convenience; vehicle coverage; test procedures and

standards; test equipment; quality control; waivers and compliance via

diagnostic inspection; motorist compliance enforcement; motorist

compliance enforcement program oversight; quality assurance;

enforcement against contractors, stations and inspectors; data

collection; data analysis and reporting; inspector training and

licensing or certification; public information and consumer protection;

improving repair effectiveness; compliance with recall notices; on-road

testing; SIP revisions; and implementation deadlines. The performance

standard for basic I/M programs remains the same as it has been since

initial I/M policy was established in 1978, pursuant to the 1977

amendments to the Clean Air Act.

The Commonwealth of Kentucky contains the Louisville urbanized area

portion of the Louisville ozone nonattainment area which is classified

as moderate. The Louisville ozone nonattainment area also includes two

counties in Indiana. Section 51.372(b)(2) of the federal I/M regulation

(codified at 40 CFR 51.372(b)(2)) required affected states to submit

full I/M SIP revisions that met the requirements of the Act to EPA by

November 15, 1993. This notice addresses only the Jefferson County

portion of the nonattainment area.

On November 12, 1993, the Commonwealth of Kentucky, through the

Kentucky Natural Resources and Environmental Protection Cabinet

submitted to EPA a revised SIP for an improved basic I/M program for

Jefferson County. This submittal included revisions to Regulation 8.01,

Mobile Source Emissions Control; Regulation 8.02, Vehicle Emissions

Testing Procedure; and 8.03, Commuter Vehicle Testing Requirements. The

I/M regulations were adopted by the Department of Planning and

Environmental Management, Air Pollution Control District (APCD) of

Jefferson County, Kentucky on February 17, 1993, and became effective

on March 1, 1993, and on September 14, 1993, for Regulation 8.03. EPA

summarizes the requirements of the Federal I/M regulations as found in

40 CFR 51.350-51.373 and its analysis of the state submittal below.

Parties desiring additional details on the Federal I/M regulation are

referred to the November 5, 1992, Federal Register notice (57 FR 52950)

or 40 CFR 51.350-51.373.

II. EPA's Analysis of the Louisville, Kentucky, Basic I/M Program

As discussed above, section 182(a)(2)(B) of the Act requires that

states adopt and implement updated regulations for I/M programs in

moderate and above ozone nonattainment areas. The following sections of

this notice summarize the requirements of the Federal I/M regulations

and address whether the elements of the Commonwealth's submittal comply

with the Federal rule.

Applicability--40 CFR 51.350

Section 182(b)(4) of the Act and 40 CFR 51.350(a)(4) require that

any area classified as moderate ozone nonattainment and not required to

implement enhanced I/M under 40 CFR 51.350(a)(1) shall implement basic

I/M in the 1990 Census-defined urbanized nonattainment area. The

urbanized portion of the Louisville nonattainment area includes most,

but not all of Jefferson County, a portion of Bullit County, Kentucky,

and portions of Clark and Floyd Counties in Indiana. The population

distribution of these counties is such that an equivalent or greater

population is covered by an I/M program in all of Jefferson County,

Kentucky, and all of Clark and Floyd Counties in Indiana. The Kentucky

submittal contains the legal authority and regulations necessary for

the Jefferson County APCD to establish the program boundaries and

operate a basic I/M program. The I/M program for Clark and Floyd

Counties will be submitted by Indiana and will be addressed in a

separate notice.

The program boundaries described in the Kentucky submittal meet the

Federal I/M requirements under section 51.350 and are approvable.

The Federal I/M regulation requires that state programs shall not

lapse prior to the time they are no longer needed. EPA has concluded

that a program that does not lapse prior to the attainment deadline for

each applicable area would meet this requirement. The attainment date

for the Louisville ozone nonattainment area is November 15, 1996, and

the Jefferson County I/M regulations contained in the Kentucky

submittal do not establish an I/M program implementation sunset date

prior to the attainment deadline. EPA therefore concludes that this

section is approvable.

Jefferson County's Regulation 8.03 also subjects owners or

operators of vehicles who routinely or regularly commute to Jefferson

County, Kentucky, for employment or self-employment to the same vehicle

emissions testing program as residents of the county. The employer is

responsible for providing a list of such vehicle owners subject to the

provisions of this regulation. EPA has determined this section of the

submittal is approvable.

Basic I/M Performance Standard--40 CFR 51.352

The basic I/M program must be designed and implemented to meet or

exceed a minimum performance standard, which is expressed as emission

levels in area-wide average grams per mile (gpm) for certain

pollutants. The performance standard shall be established using local

characteristics, such as vehicle mix and local fuel controls, and the

following model I/M program parameters: network type, start date, test

frequency, model year coverage, vehicle type coverage, exhaust emission

test type, emission standards, emission control device,

[[Page 38702]]

evaporative system function checks, stringency, waiver rate, compliance

rate and evaluation date. The emission levels achieved by the state's

program design shall be calculated using the most current version, at

the time of submittal, of the EPA mobile source emission factor model.

At the time of the Kentucky submittal the most current version was

MOBILE5a. Areas shall meet or exceed the performance standard for the

pollutants which cause them to be subject to basic I/M requirements. In

the case of ozone nonattainment areas, the performance standard must be

met for both NOX and VOCs.

The Kentucky submittal includes the following program design

parameters:

network type--centralized, test-only

start date--1984

test frequency--annual

model year coverage--1968 and later

vehicle type coverage--light and heavy duty gasoline powered

vehicles

emission test--Idle

emission standards--1.2 percent CO, 220 ppm HC

emission control device--none

evaporative system checks (pressure)--1984 and later

stringency (pre-1981 failure rate)--20 percent

waiver rate (pre-81/81 and newer)--22 percent/17 percent

compliance rate--99 percent

evaluation date(s)--January 1, 1997

The Jefferson County, Kentucky, program design parameters meet the

Federal I/M regulations and are approvable.

The emission levels achieved by the County were modeled using

MOBILE5a. The modeling demonstration was performed correctly, used

local characteristics and demonstrated that the program design will

exceed the minimum basic I/M performance standard, expressed in gpm,

for VOCs and NOx for each milestone and for the attainment deadline.

The modeling demonstration is approvable.

Network Type and Program Evaluation--40 CFR 51.353

Basic I/M programs can be operated in a centralized test-only

format, in a decentralized test and repair, or in any hybrid version as

long as states can demonstrate that the selected program is effective

in achieving the basic I/M performance standard. The APCD will

administer a centralized I/M program in Jefferson County. The enhanced

program evaluation requirements of this section do not pertain to the

Jefferson County program as it is a basic I/M program. The network type

is approvable.

Adequate Tools and Resources--40 CFR 51.354

The Federal regulation requires states to demonstrate that adequate

funding of the program is available. A portion of the test fee or

separately assessed per vehicle fee shall be collected, placed in a

dedicated fund and used to finance the program. Alternative funding

approaches are acceptable if demonstrated that the funding can be

maintained. Reliance on funding from a state or local General Fund is

not acceptable unless doing otherwise would be a violation of the

state's constitution. The SIP shall include a detailed budget plan

which describes the source of funds for personnel, program

administration, program enforcement, and purchase of equipment. The SIP

shall also detail the number of personnel dedicated to the quality

assurance program, data analysis, program administration, enforcement,

public education and assistance and other necessary functions.

The Jefferson County, Kentucky, program is to be funded by direct

reimbursement of the primary contractor from vehicle inspection fees. A

portion of the vehicle inspection fee will be returned to APCD to cover

the cost of program oversight and will be sufficient to cover the

activities of the audit contractor, and the Department of Planning and

Environmental Management. This method meets the Federal regulation and

is approvable. The submittal demonstrates that sufficient funds,

equipment and personnel have been appropriated to meet program

operation requirements. The Commonwealth submittal meets the adequate

tools and resources requirements set forth in the Federal I/M

regulations and is approvable.

Test Frequency and Convenience--40 CFR 51.355

The SIP shall describe the test year selection scheme, how the test

frequency is integrated into the enforcement process and shall include

the legal authority, regulations or contract provisions to implement

and enforce the test frequency. The program shall be designed to

provide convenient service to the motorist by ensuring short wait

times, short driving distances and regular testing hours.

The Jefferson County, Kentucky, I/M regulation provides for an

annual test frequency for all covered vehicles. A vehicle is assigned a

test month. Prior to the assigned test month, the program contractor

notifies the vehicle owner when their vehicles may be tested. The

vehicle may be tested in either the month prior to the assigned month

or in the assigned month. Vehicle owners not complying with the testing

requirement by the end of the assigned month are notified they are in

violation and subject to criminal prosecution. Continued noncompliance

results in a court appearance. A guilty verdict results in a fine and

the mandatory payment of court costs. The assignment of test months

within each test year will be made using a method to be determined by

the program contractor, and is based on the registration month of the

vehicle. The program RFP sets standards for station convenience and

requires a station in each quadrant of Jefferson County. The contract

calls for all lanes to be operational at peak times as defined in the

Request For Proposals (RFP). The contract also calls for additional

lanes to be opened as practical whenever queuing in all operating lanes

at a station exceeds an average of five cars per operating lane. The

submittal meets the requirements for testing frequency and convenience

and is approvable.

Vehicle Coverage--40 CFR 51.356

The performance standard for basic I/M programs assumes coverage of

all 1968 and later model year light duty vehicles (LDV) and light duty

trucks (LDT) up to 8,500 pounds gross vehicle weight rating (GVWR), and

includes vehicles operating on all fuel types. Other levels of coverage

may be approved if the necessary emission reductions are achieved.

Vehicles registered or required to be registered within the I/M program

area boundaries and fleets primarily operated within the I/M program

area boundaries and belonging to the covered model years and vehicle

classes comprise the subject vehicles. Fleets may be officially

inspected outside of the normal I/M program test facilities, if such

alternatives are approved by the program administration, but shall be

subject to the same test requirements using the same quality control

standards as non-fleet vehicles and shall be inspected in independent,

test-only facilities, according to the requirements of 40 CFR

51.353(a). Vehicles which are operated on Federal installations located

within an I/M program area shall be tested, regardless of whether the

vehicles are registered in the state or local I/M area.

The Federal I/M regulation requires that the SIP shall include the

legal authority or rule necessary to implement and enforce the vehicle

coverage requirement, a detailed description of the number and types of

[[Page 38703]]

vehicles to be covered by the program and a plan for how those vehicles

are to be identified including vehicles that are routinely operated in

the area but may not be registered in the area, and a description of

any special exemptions including the percentage and number of vehicles

to be impacted by the exemption.

The Jefferson County I/M regulation requires all vehicles up to

18,000 pounds gross vehicle weight registered in the county except

diesel vehicles, two stroke motorcycles, and vehicles which the APCD

Administrator has determined shall not be tested because of fuel or

engine characteristics, to be tested annually. In addition to light

duty vehicles and light duty trucks, motorcycles, motorhomes, and large

gasoline powered vehicles are subject to testing. Vehicle owners are

notified that the vehicle is required to be tested prior to

registration via a computer matching mechanism. Noncomplying vehicle

owners are issued a Notice of Violation. Regulation 8.03 also requires

commuters into Jefferson County to have their vehicles tested. This

regulation requires all employers to submit a list of employees that

live outside of Jefferson County but commute to their jobs in Jefferson

County. Fleet self testing is allowed only for businesses not involved

in the general repair or sales of vehicles. Quality control

requirements apply equally to both the centralized testing stations and

the fleet self testers. Federally owned vehicles are subject to the

testing requirements. Vehicles from other areas may be tested and the

APCD will also accept test results from other approved testing

programs. Exempted vehicles are taken into account in the performance

standard demonstration.

The Commonwealth's plan for testing fleet vehicles is acceptable

and meets the requirements of the Federal I/M regulation.

Owners of vehicles which are registered in the program area but are

operated more than 250 miles outside of the area for extended periods,

such as with students and military personnel, may apply for an

extension. The vehicle owner must present a sworn affidavit with

documentation that the vehicle will be based at the remote location for

the time period claimed. The vehicle must be presented for testing once

it is returned to Jefferson County. The Kentucky submittal meets the

requirements of this section.

Test Procedures and Standards--40 CFR 51.357

Written test procedures and pass/fail standards shall be

established and followed for each model year and vehicle type included

in the program. Test procedures and standards are detailed in 40 CFR

Part 51.357 and in the EPA document entitled ``Recommended I/M Short

Test Procedures For the 1990's: Six Alternatives.''

The Commonwealth's I/M submittal includes a description of the test

procedure used in the Louisville I/M program. The program contract

requires the procedure described in Appendix H, which contains the EPA

short tests mentioned above, to be utilized. Specifically, Test 1

provides for minor modifications to EPA's ``Idle Test Procedure with

Loaded Preconditioning.'' Test 2 contains the same modifications to

EPA's ``Idle Test Procedure.'' The modification is to allow the

Contractor to declare an Initial Test Mode Failure at less than the

overall maximum initial test time of 55 seconds which shall result in

performing the second chance as prescribed in the referenced EPA

document. Regulation 8.02 added the requirement for testing the

evaporative system with the EPA recommended pressure test. The

evaporative system pressure test procedure is the EPA procedure

described in Appendix B, Subpart 5, Part 51.

These test procedures conform to EPA approved test procedures and

are approvable. The I/M regulation for Jefferson County establishes

hydrocarbon (HC) and carbon monoxide (CO) pass/fail exhaust standards

for all test procedures for each applicable model year and vehicle

type. The exhaust standards adopted by the Commonwealth conform to EPA

established standards and are approvable. The Jefferson County I/M

regulation establishes evaporative pressure test standards which

conform to EPA established standards and are approvable.

Test Equipment--40 CFR 51.358

Computerized test systems are required for performing any

measurement on subject vehicles. The Federal I/M regulation requires

that state SIP submittals include written technical specifications for

all test equipment used in the program. The specifications shall

describe the emission analysis process, the necessary test equipment,

the required features, and written acceptance testing criteria and

procedures.

The Jefferson County I/M regulation and RFP require exhaust

analyzers that meet the BAR90 performance specifications. These

specifications require the use of computerized test systems. The

specifications also include performance features and functional

characteristics of the computerized test systems which meet the Federal

I/M regulations and are approvable.

Quality Control--40 CFR 51.359

Quality control measures shall insure that emission measurement

equipment is calibrated and maintained properly, and that inspection,

calibration records, and control charts are accurately created,

recorded and maintained.

Section 9 of the Jefferson County regulations, the RFP, and the

contract all contain quality control requirements for the emission

measurement equipment, record keeping requirements and measures to

maintain the security of all documents used to establish compliance

with the inspection requirements. A special software encryption

algorithm codes the ``Inspection Number'' field on the test form and

cannot be duplicated without access to the source code. The RFP also

contains the requirement for two mobile audit vans which provide overt

audit capability. They are provided by the contractor, but used by APCD

personnel. This portion of the Kentucky submittal complies with the

quality control requirements set forth in the Federal I/M regulation

and is approvable.

Waivers and Compliance via Diagnostic Inspection--40 CFR 51.360

The Federal I/M regulation allows for the issuance of a waiver,

which is a form of compliance with the program requirements that allows

a motorist to comply without meeting the applicable test standards. For

basic I/M programs, an expenditure of at least $75 for pre-81 vehicles

and $200 for 1981 and later vehicles in repairs, is required in order

to qualify for a waiver. Waivers can only be issued after a vehicle has

failed a retest performed after all qualifying repairs have been made.

Any available warranty coverage must be used to obtain repairs before

expenditures can be counted toward the cost limit. Tampering related

repairs shall not be applied toward the cost limit. Repairs must be

appropriate to the cause of the test failure. Repairs for 1980 and

newer model year vehicles must be performed by a recognized repair

technician. The Federal regulation allows for compliance via a

diagnostic inspection after failing a retest on emissions and requires

quality control of waiver issuance. The SIP must set a maximum waiver

rate and must describe corrective action that would be taken if the

waiver rate exceeds that contained in the SIP.

The Jefferson County regulation provides the necessary authority to

[[Page 38704]]

issue waivers, set cost limits, administer and enforce the waiver

system. The submittal commits to a maximum waiver rate as established

in the performance standard demonstration and commits to corrective

action to reduce the waiver rate if this value is exceeded. The

Jefferson County Regulation 8.01 sets a $75 cost limit for pre-81

vehicles and $200 for 1981 and newer vehicles. The regulation includes

provisions which address waiver criteria and procedures, including cost

limits, tampering and warranty related repairs, quality control and

administration. A unique feature of the regulation is any vehicle owner

requesting a waiver must submit the vehicle for review at the APCD

referee test center and must show a measurable improvement in

emissions. A vehicle repair form must be submitted by the owner at that

time, verifying the repairs. The vehicle is diagnosed by APCD personnel

that must be ASE certified Master Mechanics as well as sworn Kentucky

peace officers and EPA Administrator designated representatives for

tampering and fuels. These provisions meet the Federal I/M regulations

requirements and are approvable.

Motorist Compliance Enforcement--40 CFR 51.361

The Federal regulation requires that compliance shall be ensured

through the denial of motor vehicle registration in I/M programs.

However, a basic area may use an alternative enforcement mechanism if

it demonstrates that the alternative will be as effective as

registration denial. The SIP shall provide information concerning the

enforcement process, legal authority to implement and enforce the

program, a commitment to a compliance rate to be used for modeling

purposes and to be maintained in practice. The Jefferson County

regulation provides the legal authority to implement a computer

matching enforcement system. The RFP contains a detailed description of

the enforcement process. The contractor is responsible for data

operations. This includes a requirement to update the database every

Monday. A database of tested vehicles is compared to a database of

registered subject vehicles. The testing process for the vehicle owner

begins when the owner is sent a reminder of the testing requirement by

the contractor. Any owner failing to obtain a certificate of compliance

by the end of the assigned month will be sent a notice of violation

(NOV) which states that if the vehicle is brought in for testing that

month no further action will be taken. A legal notice called Notice of

Court Action (NOCA) will be sent by the contractor to the vehicle owner

who fails to have the vehicle tested by the end of the NOV month. This

notice states that, if the owner obtains a certificate of compliance by

a specified cutoff date, a criminal complaint which has already been

prepared in his name, will not be processed by the Jefferson County

District Court. The cutoff date is established by the APCD each month.

When an owner fails to obtain a certificate of compliance by the cutoff

date, a sworn criminal complaint is filed in the Jefferson district

court pursuant to the Kentucky Rules of Criminal Procedure. The fine

for violations shall not be less than $10 and not more than $50 for the

first offense and not less than $50 or more than $100 for each

subsequent offense. Payment of court costs by a defendant, upon

conviction, shall be mandatory and cannot be probated or suspended.

Jefferson County Regulation 8.03 contains a requirement that people

living outside of the County but working in it must have their vehicles

inspected. The employer is responsible for providing a list of vehicle

owners subject to this requirement. An employer may be fined up to $500

per day per offense. Enforcement against vehicle owners is the same as

for residents of Jefferson County. The submittal commits to maintaining

the compliance rate used in the performance standard demonstration.

This portion of the Kentucky submittal meets the Federal requirements

and is approvable.

Motorist Compliance Enforcement Program Oversight--40 CFR 51.362

The Federal I/M regulation requires that the enforcement program

shall be audited regularly and shall follow effective program

management practices, including adjustments to improve operation when

necessary. The SIP shall include quality control and quality assurance

procedures to be used to insure the effective overall performance of

the enforcement system. An information management system shall be

established which will characterize, evaluate and enforce the program.

The Jefferson County regulation provides the legal authority to

implement a computer matching enforcement system. The RFP contains a

detailed description of the enforcement process. The submittal also

describes the process used in auditing the computer matching

enforcement mechanism. Compliance with the vehicle inspection program

is audited by the Jefferson County APCD by routine checks of Kentucky

vehicle registration records against I/M test records. Additionally,

Jefferson County APCD enters all court records of all noncompliance

cases into a computer program to verify appropriate action was taken.

Cases are identified as ultimately receiving the inspection after

appropriate legal action, the vehicle being removed from the owner's

record because of sale or scrappage of vehicle, or no test required

because the vehicle has been removed from use on the road. This portion

of the Kentucky submittal meets the Federal requirements and is

approvable.

Quality Assurance--40 CFR 51.363

An ongoing quality assurance program shall be implemented to

discover, correct and prevent fraud, waste, and abuse in the program.

The program shall include covert and overt performance audits of the

inspectors, audits of station and inspector records, equipment audits,

and formal training of all state I/M enforcement officials and

auditors. A description of the quality assurance program which includes

written procedure manuals on the above discussed items must be

submitted as part of the SIP.

The Kentucky submittal includes a quality assurance program which

describes details and procedures for implementing inspector, records,

and equipment audits. Performance audits of inspectors and testing

equipment will be performed by the APCD personnel. Regulation 8,

Sections 8 and 9 require various quality assurance and control

functions be performed to insure correct program operation. These

include overt and covert audits and remote observation of inspection

personnel performing testing. Overt audits may be performed by APCD

personnel at any time, unannounced, during station operation. Covert

audits are required to use a range of vehicles which have been set to

fail the inspection test. The RFP requires the contractor to develop

quality assurance and control procedures as well as operations manuals.

The quality assurance requirements and procedures in the Jefferson

County program meet the Federal I/M regulation requirements and are

approvable.

Enforcement Against Contractors, Stations and Inspectors--40 CFR 51.364

Enforcement against licensed stations or contractors, and

inspectors shall include swift, sure, effective, and consistent

penalties for violation of program requirements. The Federal I/M

regulation requires the establishment of minimum penalties for

violations of

[[Page 38705]]

program rules and procedures which can be imposed against stations,

contractors and inspectors. The legal authority for establishing and

imposing penalties, civil fines, license suspensions and revocations

must be included in the SIP. State quality assurance officials shall

have the authority to temporarily suspend station and/or inspector

licenses immediately upon finding a violation that directly affects

emission reduction benefits. The SIP shall 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 the resources

and sources of those resources which will support this function.

The Kentucky submittal includes the legal authority to establish

and impose penalties against stations, contractors and inspectors. The

Jefferson County enforcement program is staffed by Kentucky peace

officers and immediate action and prosecution is taken when needed. The

Jefferson County APCD auditors can suspend licenses and operations

immediately upon detection of a violation. The RFP establishes fines to

the contractor for failure to perform as required. Inspectors may be

decertified. The Jefferson County I/M program meets the requirements of

this section and is approvable.

Data Collection--40 CFR 51.365

Accurate data collection is essential to the management, evaluation

and enforcement of an I/M program. The Federal I/M regulation requires

data to be gathered on each individual test conducted and on the

results of the quality control checks of test equipment required under

40 CFR 51.359.

Jefferson County Regulation 8.01, Section 7, specifies the

information contained on the inspection form. The RFP requires the

collection of data, and subsequent analysis, on each individual test

conducted and describes the type of data to be collected. The type of

test data collected meets the Federal I/M regulation requirements and

is approvable. The submittal also commits to gather and report the

results of the quality control checks required under 40 CFR 51.359 and

is approvable.

Data Analysis and Reporting--40 CFR 51.366

Data analysis and reporting are required to allow for monitoring

and evaluation of the program by the states and EPA. The Federal I/M

regulation requires annual reports to be submitted which provide

information and statistics and summarize activities performed for each

of the following programs: testing, quality assurance, quality control

and enforcement. These reports are to be submitted by July and shall

provide statistics for the period of January to December of the

previous year. A biennial report shall be submitted to EPA which

addresses changes in program design, regulations, legal authority,

program procedures and any weaknesses in the program found during the

two year period and how these problems will be or were corrected.

The Jefferson County I/M program RFP provides for the analysis and

reporting of data for the testing program, quality assurance program,

quality control program and the enforcement program. The type of data

to be analyzed and reported meets the Federal I/M regulation

requirements and is approvable. Jefferson County commits to submit all

required reports to EPA. Additionally, Jefferson County APCD commits to

submitting the annual reports on these programs to EPA by July of the

subsequent year. These annual reports will be submitted July 1, 1996,

and each July 1 thereafter, covering the previous test year. The

submittal commits to the reports required under 40 CFR 51.366 and is

approvable.

Inspector Training and Licensing or Certification--40 CFR 51.367

The Federal I/M regulation requires all inspectors to be formally

trained and licensed or certified to perform inspections.

The Jefferson County I/M regulation requires all inspectors to

receive formal training, be certified by APCD and renew the

certification every year. The inspector must attend a training course

and pass an examination with at least a score of 80%. The SIP meets the

Federal I/M regulation requirements for inspector training and

certification and is approvable.

Public Information and Consumer Protection--40 CFR 51.368

The Federal I/M regulation requires the SIP to include a public

information and consumer protection program. The RFP includes a public

information program which educates the public on I/M, Commonwealth and

Federal regulations, air quality and the role of motor vehicles in the

air pollution problem and other items as described in the Federal rule.

The consumer protection program includes provisions for a challenge

mechanism, protection of whistle blowers and providing assistance to

motorists in obtaining warranty covered repairs. The public information

and consumer protection programs contained in the SIP submittal meet

the Federal regulations and are approvable.

Improving Repair Effectiveness--40 CFR 51.369

Effective repairs are the key to achieving program goals. The

Federal regulation requires states to take steps to ensure that the

capability exists in the repair industry to repair vehicles. 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 required in the Federal

regulation and a description of the repair technician training

resources available in the community.

The Jefferson County regulations contain a provision regarding

vehicle repair forms. These must be completed by a professional

mechanic registered with the APCD, or the vehicle owner in cases of

self-repair. A mechanic registered by the APCD must pass an APCD

training course in which air pollution and vehicles are discussed. The

APCD also maintains a hotline staffed by ASE certified master

technicians. Motorists whose vehicles fail the test are given a repair

facility report card. This report card contains information regarding a

facility's success in repairing vehicles and having them pass the

inspection retest. The APCD provides regular feedback to each facility

on their repair performance. The performance monitoring program design

meets the criteria described in the Federal regulation and is

approvable. The repair effectiveness program described in the SIP meets

the Federal regulation and is approvable.

Compliance With Recall Notices--40 CFR 51.370

The Federal regulation requires the states to establish methods to

ensure that vehicles that are subject to enhanced I/M and are included

in an emission related recall receive the required repairs prior to

completing the emission test or renewing the vehicle registration.

The Jefferson County nonattainment area is classified as moderate

and therefore not subject to this provision.

On-road Testing--40 CFR 51.371

On-road testing is required in enhanced I/M areas. The use of

either remote sensing devices (RSD) or roadside pullovers including

tailpipe emission testing can be used to meet the Federal regulations.

The program must

[[Page 38706]]

include on-road testing of 0.5% of the subject fleet or 20,000

vehicles, whichever is less, in the nonattainment area or the I/M

program area. Motorists that have passed an emission test and are found

to be high emitters as a result of a on-road test shall be required to

pass an out-of-cycle test.

The Jefferson County nonattainment area is classified as moderate

and therefore not subject to this provision.

State Implementation Plan Submissions/Implementation Deadlines--40 CFR

51.372-373

The Federal regulation requires centralized basic I/M programs to

be fully implemented by January 1, 1994. The Jefferson County I/M

program has been in operation since 1984. The changes required by the

CAA were implemented during 1993. The SIP meets the SIP submission and

implementation deadline requirements set forth in the Federal I/M

regulation.

EPA's review of the material indicates that the Commonwealth has

adopted a basic I/M program in accordance with the requirements of the

Act. EPA is approving the Kentucky SIP revision for a basic I/M program

in Jefferson County, which was submitted on November 12, 1993.

Final Action

The EPA is approving the Jefferson County I/M revision and is

publishing this action without prior proposal because the agency views

this as a noncontroversial amendment and anticipates no adverse public

comments. However, in a separate document in this Federal Register

publication, the EPA is proposing to approve the SIP revision should

adverse or critical comment be filed. This action will be effective

September 26, 1995 unless, by August 28, 1995 adverse or critical

comments are received.

If EPA receives such comments, this action will be withdrawn before

the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will then be

discussed in a subsequent final rule based on the separate proposed

rule. The EPA will not institute a second comment period for this

action. Any parties interested in commenting on this action should do

so at this time. If no such comments are received, the public is

advised that this action will be effective September 26, 1995.

EPA is approving this revision to the Kentucky SIP for a basic I/M

program. The Agency has reviewed this request for revision of the

Federally-approved SIP for conformance with the provisions of the 1990

Amendments enacted on November 15, 1990. The Agency has determined that

this action conforms with those requirements.

Under section 307(b)(1) of the Act, 42 U.S.C. 7607 (b)(1),

petitions for judicial review of this action must be filed in the

United States Court of Appeals for the appropriate circuit by September

26, 1995. Filing a petition for reconsideration by the Administrator of

this final rule does not affect the finality of this rule for purposes

of judicial review nor does it extend the time within which a petition

for judicial review may be filed, and shall not postpone the

effectiveness of such rule or action. This action may not be challenged

later in proceedings to enforce its requirements. (See section

307(b)(2) of the Act, 42 U.S.C. 7607 (b)(2).)

The Office of Management and Budget has exempted this rule from the

requirements of section 6 of Executive Order 12866.

Nothing in this action shall be construed as permitting or allowing

or establishing a precedent for any future request for a revision to

any state implementation plan. Each request for revision to the state

implementation plan shall be considered separately in light of specific

technical, economic, and environmental factors and in relation to

relevant statutory and regulatory requirements.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under 110 and subchapter I, Part D of the CAA do not

create any new requirements, but simply approve requirements that the

State is already imposing. Therefore, because the Federal SIP approval

does not impose any new requirements, I certify that it does not have a

significant impact on any small entities affected. Moreover, due to the

nature of the Federal-state relationship under the CAA, preparation of

a regulatory flexibility analysis would constitute Federal inquiry into

the economic reasonableness of state action. The CAA forbids EPA to

base its actions concerning SIPs on such grounds. Union Electric Co. v.

U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. sections

7410(a)(2) and 7410(k)(3).

Under Sections 202, 203 and 205 of the Unfunded Mandates Reform Act

of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995,

EPA must undertake various actions in association with proposed or

final rules that include a Federal mandate that may result in estimated

costs of $100 million or more to the private sector, or to State,

local, or tribal governments in the aggregate.

Through submission of this state implementation plan or plan

revision, the State and any local or tribal governments have elected to

adopt the program provided for under Section 182 of the Clean Air Act.

These rules may bind State, local and tribal governments to perform

certain actions and also require the private sector to perform certain

duties. To the extent that the rules being approved by this action will

impose any mandate upon the State, local, or tribal governments either

as the owner or operator of a source or as a regulator, or would impose

any mandate upon the private sector, EPA's action will impose no new

requirements; such sources are already subject to these regulations

under State law. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

EPA has also determined that this final action does not include a

mandate that may result in estimated costs of $100 million or more to

State, local, or tribal governments in the aggregate or to the private

sector.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Nitrogen oxides, Ozone, Reporting and Recordkeeping requirements.

Dated: June 28, 1995.

Patrick M. Tobin,

Acting Regional Administrator.

Part 52 of chapter I, title 40, 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 S--Kentucky

2. Section 52.920, is amended by adding paragraph (c)(72) to read

as follows:

[[Page 38707]]

Sec. 52.920 Identification of plan.

* * * * *

(c) * * *

(72) Modifications to the existing basic I/M program in Jefferson

County to implement an anti-tampering check, pressure testing of the

evaporative control system, and testing of commuter vehicles submitted

by the Commonwealth of Kentucky on November 12, 1993.

(i) Incorporation by reference. Regulation 8.01 and 8.02, adopted

on February 17, 1993, and Regulation 8.03 adopted on February 17, 1993.

(ii) Other material. None.

* * *

[FR Doc. 95-18513 Filed 7-27-95; 8:45 am]

BILLING CODE 6560-50-P