Approval and Promulgation of Air Quality Implementation Plans; Alaska: Motor Vehicle Inspection and Maintenance Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AK12-7100; FRL-5634-1]

Approval and Promulgation of Air Quality Implementation Plans;

Alaska: Motor Vehicle Inspection and Maintenance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed interim rule.

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SUMMARY: EPA is proposing an interim approval of a State Implementation

Plan (SIP) revision submitted by the State of Alaska. This revision

requires the continued implementation of an inspection and maintenance

(I/M) program in the Municipality of Anchorage (MOA) and the Fairbanks

North Star Borough (FNSB). Alaska's current program was reviewed and

approved by EPA in a SIP action that became effective on June 5, 1995.

The intended effect of this action is to propose interim approval for a

revised I/M program credit claim proposed by the State, based upon the

state's good faith estimate, which asserts that the state's claimed

network design credits are appropriate and the revision is otherwise in

compliance with the Clean Air Act (CAA). This action is being taken

under section 348 of the National Highway System Designation Act of

1995 (NHSDA) and section 110 of the CAA.

DATES: Comments must be received in writing and postmarked on or before

November 12, 1996.

ADDRESSES: Comments may be mailed to: Montel Livingston, SIP Manager,

Office of Air Quality (OAQ 107), Environmental Protection Agency,

Region 10, 1200 Sixth Avenue, Seattle, Washington, 98101. Copies of the

documents relevant to this action are available for public inspection

during normal business hours at: EPA Region 10, Office of Air Quality,

1200 Sixth Avenue, Seattle, Washington, 98101, and the Alaska

Department of Environmental Conservation, 410 Willoughby, Suite 105,

Juneau, Alaska, 99801-1795.

FOR FURTHER INFORMATION CONTACT: Ed Jones, EPA, Office of Air Quality

(OA-107), 1200 Sixth Avenue, Seattle, Washington, 98101, (206) 553-

1743.

SUPPLEMENTARY INFORMATION:

I. Background

A. Impact of the National Highway System Designation Act on the Design

and Implementation of Inspection & Maintenance Programs Under the Clean

Air Act

The National Highway System Designation Act of 1995 (NHSDA)

establishes two key changes to the I/M rule requirements previously

developed by EPA. Under the NHSDA, EPA cannot require states to adopt

or implement centralized, test-only IM240 enhanced vehicle inspection

and maintenance programs as a means of compliance with section 182, 184

or 187 of the CAA. Also under the NHSDA, EPA cannot disapprove a State

SIP revision, nor apply an automatic discount to a State SIP revision

under section 182, 184 or 187 of the CAA, because the I/M program in

such plan revision is decentralized, or a test-and-repair program.

Accordingly, the so-called 50% credit discount that was established by

the EPA's I/M Program Requirements Final Rule, (published November 5,

1992, and herein referred to as the I/M Rule) has been effectively

replaced with a presumptive equivalency criteria, which places the

emission reductions credits for decentralized networks on par with

credit assumptions for centralized networks, based upon a state's good

faith estimate of reductions as provided by the NHSDA and explained

below in this section.

EPA's I/M Rule established many other criteria unrelated to network

design or test type for states to use in designing I/M programs. All

other elements of the I/M Rule, and the statutory requirements

established in the CAA continue to be required of those states

submitting I/M SIP revisions under the NHSDA, and the NHSDA

specifically requires that these submittals must otherwise comply in

all respects with the I/M Rule and the CAA.

Submission criteria described under the NHSDA allows for a State to

submit proposed regulations for this interim program, provided that the

State has all of the statutory authority necessary to carry out the

program. Also, in proposing the interim credits for this program,

states are required to make good faith estimates regarding the

performance of their I/M program. Since these estimates are expected to

be difficult to quantify, the state need only provide that the proposed

credits claimed for the submission have a basis in fact. A good faith

estimate of a State's program may be an estimate that is based on any

of the following: the performance of any previous I/M program; the

results of remote sensing or other roadside testing techniques; fleet

and vehicle miles traveled (VMT) profiles; demographic studies; or

other evidence which has relevance to the effectiveness or emissions

reducing capabilities of an I/M program.

This action is being taken under the authority of both the NHSDA

and section 110 of the CAA. Section 348 of the NHSDA expressly directs

EPA to issue this interim approval for a period of 18 months, at which

time the interim program will be evaluated in concert with the

appropriate state agencies and EPA. At that time, the Conference Report

on section 348 of the NHSDA states that it is expected that the

proposed credits claimed by the State in its submittal, and the

emissions reductions demonstrated through the program data may not

match exactly. Therefore, the Conference Report suggests that EPA use

the program data to appropriately adjust these credits on a program

basis as demonstrated by the program data.

B. Interim Approvals Under the NHSDA

The NHSDA directs EPA to grant interim approval for a period of 18

months to approvable I/M submittals under this Act. This Act also

directs EPA and the states to review the interim program results at the

end of 18 months, and to make a determination as to the effectiveness

of the interim program. Following this demonstration, EPA will adjust

any credit claims made by the state in its good faith effort to reflect

the emissions reductions actually measured

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by the state during the program evaluation period. The NHSDA is clear

that the interim approval shall last for only 18 months, and that the

program evaluation is due to EPA at the end of that period. Evaluation

periods must begin such that at least 6 months of operational program

data can be collected to demonstrate the effectiveness of the interim

program.

The program evaluation to be used by the State during the 18 month

interim period must be acceptable to EPA. EPA anticipates that such a

program evaluation process will be developed by the Environmental

Council of State (ECOS) group that is convening now and that was

organized for this purpose. In addition to this interim evaluation, EPA

further encourages the State to conduct a longer term, ongoing

evaluation of its I/M program.

C. Process for Full Approvals of This Program under the CAA

As per the NHSDA requirements, this interim rulemaking will expire

within 18 months of the final interim approval, or the date of final

approval. A full approval of the state's final I/M SIP revision (which

will include the state's program evaluation and final adopted state

regulations) is still necessary under section 110 and under section

182, 184 or 187 of the CAA. After EPA reviews the State's submitted

program evaluation, final rulemaking on the State's SIP revision will

occur.

II. EPA's Analysis of Alaska's Submittal

On March 26, 1996, the Alaska Department of Environmental

Conservation (ADEC) submitted a revision to its State Implementation

Plan (SIP) for an I/M program to qualify under the NHSDA. The revision

consists of enabling legislation that will allow the state to continue

implementing the I/M program, proposed regulations, a description of

the I/M program (including a modeling analysis and detailed description

of program features), and a good faith estimate that includes the

state's basis in fact for emission reductions claims of the program.

The state's credit assumptions should be based upon the removal of the

50% credit discount for all portions of the program that are based on a

test-and-repair network, and the application of the State's own

estimate of the effectiveness of its decentralized test and repair

program.

A. Analysis of the NHSDA Submittal Criteria

Transmittal Letter

On March 26, 1996, Alaska submitted an I/M SIP revision to EPA,

requesting action under the NHSDA of 1995 and the CAA of 1990. The

official submittal was made by the appropriate state official, Michele

Brown, Commissioner of ADEC, and was addressed to the appropriate EPA

official in the Region.

Enabling Legislation

The State of Alaska has regulations at 18 AAC 52, enabling the

implementation of a basic I/M program.

Proposed Regulations

On April 5, 1995, the state of Alaska was granted EPA approval for

their basic I/M program (60 FR 17232). The approval became effective on

June 5, 1995. On March 26, 1996 the state proposed amendments to the

approved program. The state anticipates fully adopting amended

regulations by November 1996.

Program Description

Alaska currently operates an approved basic I/M program. Amendments

to the program submitted on March 26, 1996, and acted upon in this

notice, do not modify the operation of the program in any manner.

Emission Reduction Claim and Basis for the Claim

Alaska has approved basic I/M programs in the Fairbanks North Star

Borough (FNSB) and the Municipality of Anchorage (MOA). Currently, to

comply with national policy related to the efficacy of test-and-repair

I/M operations, the SIP discounts these programs by 50% (in relation to

centralized I/M programs). The SIP revision submitted by the state

establishes a level of credit for Alaska's basic, de-centralized I/M

program at 85% of the credit applied to centralized programs. Alaska's

claim is based on: (1) an estimation of approximate equivalency with

California's ``Smog Check'' I/M program; (2) the California I/M Review

Committee's 1993 evaluation of the Smog Check program (entitled

``Evaluation of the California Smog Check Program and Recommendations

for Program Improvements, Fourth Report to the Legislature'') and the

Report's conclusions about the program's effectiveness; and, (3) an

assertion that the carbon monoxide emission reduction effectiveness

claimed for the California program should be translatable into at least

85% of the credit applied to test-only programs.

Although the evidence submitted in support of Alaska's claim that

their I/M program is at least 85% as effective as a centralized, test-

only program is insufficient by itself to gain full approval of the

credit claim, EPA believes that the state's assertion may be borne out

by a well-designed demonstration study. It is also the Agency's

position that this preliminary credit estimate, however speculative at

this time, is based on a factual argument that has been prepared in

good faith. EPA, therefore, proposes to conclude that Alaska's 85%

estimate for I/M effectiveness merits interim approval for the eighteen

month evaluation period.

B. Analysis of the EPA I/M Regulation and CAA Requirements

As previously stated, the NHSDA left those elements of the 1992 I/M

Rule that do not pertain to network design and test type intact. Based

upon EPA's review of Alaska's submittal, and the lack of any actual

modification to the approved program, EPA believes the state has

complied with all aspects of the NHSDA, the CAA and the 1992 I/M Rule.

Alaska's currently approved SIP includes provisions that assure

that applicable federal regulations contained in 40 CFR 51.350 through

51.373 are met. As part of this Federal Register action, no

modifications to these SIP provisions are acted upon.

III. Explanation of the Interim Approval

At the end of the 18 month interim period, pursuant to the NHSDA,

the approval status for this program will automatically lapse. It is

expected that the state will at that time be able to make a

demonstration of the program's effectiveness using an appropriate

evaluation criteria. EPA expects that the state will have at least 6

months of program data that can be used for the demonstration. If the

state fails to provide a demonstration of the program's effectiveness

to EPA within 18 months of the final interim rulemaking, the interim

approval will lapse, and EPA will be forced to disapprove the state's

permanent I/M SIP revision. If the state's program evaluation

demonstrates that a lesser amount of emission reductions were actually

realized than were claimed in the state's March 26, 1996 submittal, EPA

will adjust the state's credits accordingly, and use this information

to act on the state's permanent I/M program.

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IV. Requirements for Permanent I/M SIP Approval

At the end of the 18 month period, final approval of the state's

full SIP revision will be granted based upon the following criteria:

1. EPA's review of the state's program evaluation confirms that the

appropriate amount of program credit was claimed by the state and

achieved with the interim program,

2. Final program regulations are submitted to EPA, and

3. The state I/M program continues to meet all of the requirements

of EPA's I/M Rule.

V. EPA's Evaluation of the Interim Submittal

EPA's review of this material indicates that a credit claim of 85%

of test-only credit was prepared in good faith and is based in fact.

EPA is therefore proposing an interim approval of the Alaska SIP

revision for I/M program credit claims, which was submitted on March

26, 1996. EPA is soliciting public comments on the issues discussed in

this notice or on other relevant matters. These comments will be

considered before taking final action. Interested parties may

participate in the Federal rulemaking procedure by submitting written

comments to the EPA Regional office listed in the ADDRESSES section of

this document.

VI. Proposed Action

This action proposes to modify sections III.A, III.B, and III.C of

the Alaska SIP, and add an appendix to Section III.B entitled

``Estimating the Emission Reductions from the Alaska I/M Programs.''

The proposal is for interim approval of these modifications and

additions. Not all the revisions submitted on March 26 have been acted

upon and proposed for interim approval, however. Pages proposed for

interim approval by this action include:

(1) Page III.A.2-5.

(2) Page III.A.2-6. Table A.2-1.

(3) Page III.A.2-30, Milestone Table, with the exception of

revisions calling for biennial testing.

(4) Page III.B.3-1, second paragraph.

(5) Page III.B.5-13, fourth paragraph revisions prior to the new

section entitled ``Level of Proposed Credit,'' except for sentence

related to biennial testing.

(6) Page III.B.5-13, section entitled ``Level of Proposed Credit.''

(7) Page III.B.5-14, Table B.5-1.

(8) Page III.C.3-1, second paragraph.

(9) Page III.C.5-6, first paragraph revisions prior to the new

section entitled ``Level of Proposed Credit,'' except for sentence

related to biennial testing.

(10) Page III.C.5-6, section entitled ``Level of Proposed Credit.''

(11) Page III.C.5-7, Table C.5-1.

(12) Appendix to Section III.B entitled ``Estimating the Emission

Reductions from the Alaska I/M Programs.''

Pages submitted by the state as revisions, but not acted upon, and

therefore not proposed for interim approval include:

(1) Page III.B.3-1, last partial paragraph.

(2) Page III.B.3-3, Table B.3-2.

(3) Page III.B.6-5.

(4) Page III.B.6-6, Figure B.6-1.

(5) Page III.B.8-6.

(6) Page III.B.8-7, Figure B.8-1 and the section entitled ``State

Oxygenated Fuels Program.''

(7) Page III.B.8-8, Figure 8-2.

(8) Page III.B.8-9.

(9) Page III.B.8-10.

(10) Page III.C.3-1, after the second paragraph (reference to Table

III.C.3-2).

(11) Page III.C.3-3, Table C.3-2.

(12) Page III.C.3-7, Table C.3-3.

(13) Page III.C.3-7 and 3-8.

(14) Page III.C.5-4.

(15) Page III.C.5-5, Figure C.5-1.

(16) Page III.C.8-2.

(17) Page III.C.8-3 and 8-4.

(18) Page III.C.8-3, Figure III.C.8-1.

(19) appendix to Section III.A entitled ``Mobile Source CO

Emissions Inventory Update #3.''

This latter group of revisions relates to: the effectiveness of the

I/M program in the context of total carbon monoxide emission reductions

in Anchorage and Fairbanks; state oxyfuel programs; and/or, future

biennial I/M testing. Since these topics have not been considered

appropriate for inclusion within an action leading to interim approval,

the respective revisions will be reviewed, together with other separate

state submittals, in a future SIP action by EPA.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

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

the state implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

VII. Administrative Requirements

Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 review.

Regulatory Flexibility Act

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

must prepare a regulatory flexibility analysis assessing the impact of

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

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

significant impact on a substantial number of small entities. Small

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

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and subchapter I, part D of the

Clean Air Act 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, the

Administrator certifies that it does not have a significant impact on

any small entities affected. Moreover, due to the nature of the

Federal-State relationship under the CAA, preparation of a flexibility

analysis would constitute Federal inquiry into the economic

reasonableness of state action. The Clean Air Act forbids EPA to base

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

EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2). The

Administrator's decision to approve or disapprove the SIP revision will

be based on whether it meets the requirements of section 110(a)(2)(A)-

(K) and part D of the Clean Air Act, as amended, and EPA regulations in

40 CFR Part 51.

Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

final that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any

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small governments that may be significantly or uniquely impacted by the

rule.

EPA has determined that the approval action proposed does not

include a Federal mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves pre-

existing requirements under State or local law, and imposes no new

Federal requirements. Accordingly, no additional costs to State, local,

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

action.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Intergovernmental relations, Reporting and recordkeeping requirements.

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

Dated: September 13, 1996.

Chuck Clarke,

Regional Administrator.

[FR Doc. 96-25981 Filed 10-9-96; 8:45 am]

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