Approval and Promulgation of Air Quality Implementation Plans; District of Columbia: Enhanced Motor Vehicle Inspection and Maintenance Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DC031-2004; DC032-2005; FRL-5617-1]

Approval and Promulgation of Air Quality Implementation Plans;

District of Columbia: Enhanced Motor Vehicle Inspection and Maintenance

Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed disapproval.

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SUMMARY: EPA is proposing disapproval of a State Implementation Plan

(SIP) revision submitted by the District of Columbia on July 13, 1995

and supplemented on March 27, 1996. This revision amends the District's

motor vehicle inspection and maintenance (I/M) program required to be

enhanced under the Clean Air Act. The intended effect of this action is

to propose disapproval of the enhanced I/M program proposed by the

District. This action is being taken under section 348 of the National

Highway System Designation Act of 1995 (NHSDA) and section 110 of the

Clean Air Act (CAA). EPA is proposing disapproval of the District's

enhanced I/M SIP revision because it is deficient with respect to the

requirements of the CAA and EPA's enhanced I/M program regulatory

requirements.

In taking action under section 110 of the CAA it is appropriate to

propose disapproval of the District's enhanced I/M submittal because

there are so many deficiencies with respect to CAA statutory and

regulatory requirements described in more detail below.

DATES: Comments must be submitted by November 12, 1996.

ADDRESSES: Comments may be mailed to David L. Arnold (mailcode 3AT21),

Chief, Ozone and Mobile Sources Section, United States Environmental

Protection Agency--Region III, 841 Chestnut Building, Philadelphia,

Pennsylvania 19107. Copies of the documents relevant to this action are

available for public inspection by appointment during normal business

hours at the U.S. EPA, 841 Chestnut Building, Philadelphia,

Pennsylvania 19107.

FOR FURTHER INFORMATION CONTACT: Kelly A. Sheckler (215) 566-2178.

SUPPLEMENTARY INFORMATION:

I. Background

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

and Implementation of Enhanced Inspection and Maintenance Programs

Under the Clean Air Act

The National Highway System Designation Act of 1995 (NHSDA)

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

previously developed by EPA. First, 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. Second, under the NHSDA, EPA

cannot disapprove a State's SIP revision, nor apply an automatic

discount to a State's 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 types for states to satisfy in designing enhanced 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. The NHSDA

specifically requires that I/M program submittals must otherwise comply

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

The NHSDA also requires states to swiftly develop, submit, and

begin implementation of these enhanced I/M programs, since the

anticipated start-up dates developed under the CAA and EPA's rules have

already been delayed. In requiring states to submit these plans within

120 days of the NHSDA passage, allowing these states to submit proposed

regulations for this plan (which can be finalized and submitted to EPA

during the interim period) and by providing expiration of interim

approval after 18 months of data collected during operation of program,

it is clear that Congress intended for states to begin testing vehicles

as soon as practicable.

Submission criteria described under the NHSDA allow 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 enhanced 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 interim rulemaking for a period of 18 months. The Conference

Report for 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.

[[Page 53167]]

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 the NHSDA. The NHSDA also

directs EPA and the states to review the program results at the end of

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

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 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

by the end of that period. Therefore, EPA believes Congress intended

for these programs to start-up as soon as possible, which EPA believes

should be at the latest, 12 months after the effective date of this

interim rule, November 15, 1997 so that approximately 6 months of

operational program data can be collected to evaluate the interim

program. EPA believes that in setting such a strict timetable for

program evaluations under the NHSDA, Congress recognized and attempted

to mitigate any further delay with the start-up of this program. For

the purposes of this program, ``start-up'' is defined as a fully

operational program which has begun regular, mandatory inspections and

repairs, using the final test strategy and covering each of a state's

required areas. If a state fails to start its program on this schedule,

an interim approval granted under the provisions of the NHSDA will

convert to a disapproval after a finding letter is sent to the state.

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 States (ECOS) group that is convening now and that was

organized for this purpose. EPA further anticipates that in addition to

the interim, short term evaluation, the state will conduct a long term,

ongoing evaluation of the I/M program as required in 40 CFR 51.353 and

51.366.

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

The District must submit a SIP revision correcting the deficiencies

identified herein as described below in order for EPA to withdraw this

proposed disapproval action, and to move forward to propose and

finalize approval of the District's enhanced I/M SIP revision under

sections 110, 182, 184 or 187 of the CAA.

II. EPA'S Analysis of The District of Columbia's Submittal

On July 13, 1995, the District of Columbia Department of Consumer

and Regulatory Affairs (DCRA) submitted revisions to its State

Implementation Plan (SIP) for an enhanced I/M program. On March 27,

1996, the District submitted, as a supplement to the July 13, 1995

submittal, a SIP revision requesting consideration under the NHSDA. The

revision consists of: enabling legislation that will allow the District

to implement a biennial I/M program (legal authorities to require the

operation of the program through to the attainment year and beyond as

necessary for maintenance of the standard and to dedicate funding to

develop and implement the program were not provided); final regulations

for portions of the program, and a brief description of the I/M

program. The District's SIP narrative stated that credit assumptions

were based upon a pilot demonstration conducted in the State of

California and data from a remote sensing prescreen demonstration in

Canada, credit for a technician training program as provided by EPA and

the application of the District's own estimate of the effectiveness of

its overall test only program.

A. Analysis of the NHSDA Submittal Criteria

Transmittal Letter

On March 27, 1996, the District of Columbia submittal an enhanced

I/M SIP revision to EPA, requesting action under the NHSDA and the CAA.

The official submittal was made by the appropriate District official,

Hampton Cross, Director of the Department of Consumer and Regulatory

Affairs, and was addressed to the appropriate official in the EPA

Region III Office.

Enabling Legislation

The District of Columbia has legislation at ``Motor Vehicle

Biennial Inspection Amendment Act of 1993'', D.C. Law 10-106, D.C. Code

section 40.201 et seq., effective April 26, 1994. The SIP narrative

provides a statement that Title 18 DCMR has no expiration date.

Enabling legal authority for a registration denial enforcement system

is not clearly provided in the SIP submittal although the SIP submittal

cites such an enforcement mechanism. The SIP submittal is also

deficient in that it lacks enabling authority to implement other

requirements of the I/M program in accordance with the CAA. A detailed

description of these deficiencies is provided below in the section by

section analysis of the District's submittal.

Proposed Regulations

Copies of the District of Columbia Register were provided which

indicated some of the submitted regulations had gone to public notice

and hearing. Public notices for amendments to Title 18 DCMR were

published on April 15, 1994 and July 1, 1994. There is no evidence that

the July 13, 1995 and March 27, 1996 SIP submittals were subject to

public notice and hearing.

Program Description

The District program is a centralized test only network. According

to the submittal's program description, light duty vehicles and trucks

and heavy duty vehicles model years 1968 and newer are covered by the

program. Vehicle model year 1979 and older will be subject to an idle

test. Vehicles model year 1980 and newer will be subject to a short

transient test (BAR31). Vehicles will be prescreened using a remote

sensing device. Vehicles failing the prescreen test will undergo the

appropriate test based upon model year. Passing vehicles will be waived

from the emission test. All vehicles are to be tested for gas cap

integrity and a randomly selected group of vehicles will be inspected

with a non-intrusive evaporative test system. A state-of-the-art

technician training program will be added to the District program.

Emission Reduction Claim and Basis for the Claim

The District's SIP revision assumes that BAR31 test is equivalent

to IM240. No data or any basis in fact is provided in the District's

submittal to support this claim. The District's proposed program

provides for a prescreen using remote sensing. A reduction in emission

credit for the prescreen is provided, however, the basis for the credit

claim is not provided. The District's SIP submittal does not provide

good faith estimates that the program meets the performance standard.

Without a basis in fact, the proposed program does not provide any

assurance that the necessary emission reductions will be achieved.

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

EPA summarizes the requirements of the I/M Rule as found in 40 CFR

51.350-51.372 and its analysis to the District's submittal below. A

more detailed analysis of the District's submittal is contained in a

Technical Support Document (TSD) available from the Region III office,

listed in the ADDRESSES section of this notice. Parties

[[Page 53168]]

desiring additional details on the I/M rule are referred to 40 CFR

51.350-51.372.

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

that do not pertain to network design or test type intact. Based upon

EPA's review of the District's submittal, EPA believes the District has

not complied with all aspects of the NHSDA, CAA and the I/M Rule. For

those sections of the I/M Rule, or of the CAA identified below, with

which the District has not fully complied, the District must submit a

revision to correct said deficiency.

The District must correct these major deficiencies in order for EPA

to provide approval under CAA section 110(k)(4). EPA has also

identified certain minor deficiencies in the SIP, which are itemized

below. EPA has determined that delayed correction of these minor

deficiencies will have a deminimis impact on the District's ability to

meet clean air goals. Therefore, the District need not correct these

deficiencies in the short term, and EPA will not disapprove the re-

submittal with respect to these deficiencies for purposes of interim

approval under the NHSDA, if these are the only outstanding

deficiencies. The District must correct the major deficiencies noted

herein and submit a revised SIP revision for interim approval. However,

even the minor deficiencies must be corrected prior to final full

approval by EPA of the District's enhanced I/M SIP after the 18 month

evaluation period.

Applicability--40 CFR 51.350

Sections 182(c)(3) and 184(b)(1)(A) of the CAA and 40 CFR 51.350(a)

require all states in the Ozone Transport Region (OTR) which contain

Metropolitan Statistical Areas (MSAs) or parts thereof with a

population of 100,000 or more to implement an enhanced I/M program. The

District is part of the OTR and is part of a MSA with a population of

100,000 or more. The entire District is classified as a serious ozone

nonattainment area and also is required to implement an enhanced I/M

program as per section 182(c)(3) of the CAA and 40 CFR 51.350(2). The

District I/M regulation requires that the enhanced I/M program be

implemented District wide. The District I/M legislative authority

(referred to as DC Law 10-106, DC Code 40, Title 18 DCMR throughout the

remainder of this notice) provides the legal authority to establish a

statewide biennial vehicle emission testing program. The federal I/M

regulation requires that the District's program not terminate until it

is no longer necessary. A SIP revision which does not allow termination

of the program prior to the attainment deadline for each applicable

area satisfies this requirement. The District's I/M enabling authority

itself does not address the length of time the program will be in

effect. The program must continue until the attainment dates for all

applicable nonattainment areas in the District. A statement in the SIP

narrative indicates that the enabling legislation has no expiration

date. The SIP submittal does not provide a list of ZIP codes of all

areas covered by the I/M program. Therefore, the District's SIP does

not meet the applicability requirements for geographical coverage.

These are minor deficiencies and must be ultimately corrected for EPA

to give final full approval.

Enhanced I/M Performance Standard--40 CFR 51.351

The enhanced 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, 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 District's submittal, the most current version was MOBILE

5a. Areas shall meet the performance standard for the pollutants which

cause them to be subject to enhanced I/M requirements. In the case of

ozone nonattainment areas, the performance standard must be met for

both nitrogen oxide (NOX) and hydrocarbons (HC). In the case of

carbon monoxide areas, the performance standard must be met for carbon

monoxide (CO). The District's submittal must meet the enhanced I/M

performance standard for HC, and NOX statewide.

EPA established an alternative, low enhanced I/M performance

standard to provide flexibility for nonattainment areas that are

required to implement enhanced I/M but which can meet the 1990 Clean

Air Act emission reduction requirements for Reasonable Further Progress

and attainment from other sources without the stringency of the high

enhanced I/M performance standard (60 FR 48029). 40 CFR 51.351(g)

provides that states may select the low enhanced performance standard

if they have an approved SIP for reasonable further progress in 1996,

commonly known as 15% plans. The District's 15% plan relies on credit

from a high enhanced I/M program for 48% of the 15% reduction required.

For this reason the District does not qualify for the low enhanced

performance standard.

EPA also established an alternate, Ozone Transport Region (OTR) low

enhanced I/M performance standard in order to provide OTR qualifying

areas the flexibility to implement a broader range of I/M programs (61

FR 39039). This standard is designed for states in the OTR which are

required to implement enhanced I/M in areas that are designated and

classified as attainment, marginal ozone nonattainment or moderate

ozone nonattainment with a population of under 200,000. The District is

classified as a serious ozone nonattainment area and therefore does not

qualify for the OTR low enhanced I/M performance standard.

The District's submittal includes the following program description

and design parameters:

Network type--Centralized

Start date--1997

Test frequency--biennial

Model year/ vehicle type coverage--1968+ LDV, LDT, HDT

Exhaust emission test type--idle on pre-1980 vehicles; transient BAR31

on 1980 and newer vehicles; all vehicles will be prescreened with

remote sensing device to determine if subject to an emission test

Emission standards--8 HC, 20 CO, 2 NOX

Emission control device--yes

Evaporative system function checks--pressure 1983 +, purge 1977 +

Stringency (pre-1981 failure rate)--20%

Waiver rate--3%

Compliance rate--96%

Evaluation dates--2000, 2005, 2010

The emission levels achieved according to the District's submittal

were modeled using MOBILE5a. The modeling demonstration is insufficient

to make a determination that it reflects the proposed program. Numerous

errors on the start date of various program elements were modeled. The

District's program assumes the BAR31 test as equivalent to IM240. No

test specification and procedures are provided for the BAR31 test. No

data to support the credit claim of equivalency for BAR31 is provided.

The District's

[[Page 53169]]

submittal claims it uses data provided from a California pilot study.

This data is not provided in the submittal. The remote sensing device

(RSD) prescreen feature of the District's program is not accounted for

by the current MOBILE model. Hand calculations are provided by the

District for the RSD portion of the program. However, the reductions

from using RSD and the credit claims are not supported by any data. The

District's submittal's demonstration uses credit from a mechanics

training program to make up the reduction loss from the use of RSD as a

prescreen. The credit assumed for mechanics training is inconsistent

with EPA policy. Furthermore, the modeling demonstration does not

provide headings or labels identifying the MOBILE5a runs making it

extremely difficult to perform a definitive review of the

demonstration. The summary sheets in the District's submittal are

inconsistent with the MOBILE5a runs. Another summary sheet lists all

the evaluated cutpoints but does not indicate which cutpoints the

District plans to use. The discrepancies with the program description

and regulations render the modeling insufficient to make a

demonstration that the District's proposed program meets the high

enhanced performance standard. The District's submittal does not meet

the enhanced I/M performance standards requirements of the federal I/M

rule. This major deficiency is in part the basis for EPA's proposed

disapproval of the District's I/M SIP.

Network Type and Program Evaluation--40 CFR 51.353

The enhanced program must include an ongoing evaluation to quantify

the emission reduction benefits of the program, and to determine if the

program is meeting the requirements of the CAA and the federal I/M

regulation. The SIP must include details on the program evaluation and

must include a schedule for submittal of biennial evaluation reports,

data from a state monitored or administered mass emission test of at

least 0.1% of the vehicles subject to inspection each year, a

description of the sampling methodology, the data collection and

analysis system and the legal authority enabling the evaluation

program.

The District has not committed to meet the program evaluation

requirements of 40 CFR 51.353 and no detailed description of the

biennial program evaluation, including the schedule and methodology is

provided in the submittal. The Environmental Council of States (ECOS)

has formed a committee to develop an evaluation protocol to be used by

states in order to evaluate program effectiveness. ECOS has recommended

that the states follow the long term program evaluation found in 40 CFR

51.353. 40 CFR 51.353 requires that a mass emission transient testing

(METT) be performed on 0.1% of the subject fleet each year. The

District's submittal includes a commitment to provide EPA with a report

two years after the program begins. However, in addition to the

requirements of program evaluation under 40 CFR 51.353, the NHSDA

provides that a state must submit a data analysis and revised SIP by

the end of the 18 month period. The District does not commit to or

provide any reference to this submittal. The District claims that data

will be collected by conducting random procurement of subject vehicles

and remote sensing for in-use vehicles, 2% random effectiveness of

repairs on failing vehicles, RSD on minimum 10,000 vehicles per year,

and covert inspections to evaluate inspectors. These methods are not

consistent with the federal enhanced I/M rule and the ECOS agreement

for the long term evaluation.

Although the submittal describes a test-only network type, there is

no regulation in the District that specifies that the program be

operated in a centralized, test-only format. Furthermore, the

District's SIP submittal includes regulations at section 605 of 18 DCMR

that allow for re-inspection at repair stations. It is EPA's

understanding that more recent regulations have been adopted for a full

test-only network (initial test and re-test). The narrative of the

District's submittal describes a test-only network with no mention of

re-tests at repair stations. The District must address this discrepancy

by submitting the revised versions of the regulations or providing a

basis in fact and effectiveness analysis for the test and repair

portion of the program. No regulations have been provided in the

District's submittal which prohibit owners and/or employees of official

I/M stations from referring vehicle owners to particular repair service

providers. A regulation must be adopted that provides for this. This is

a major deficiency and in part, is the basis for proposed disapproval

of the District's I/M program.

Adequate Tools and Resources--40 CFR 51.354

The federal regulation requires the District 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 it is demonstrated that the funding can be

maintained. Reliance on funding from the District's general fund is not

acceptable unless doing otherwise would be a violation of its

constitution. The SIP submittal must include a detailed budget plan

which describes the source of funds for personnel, program

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

must 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 District's submittal pending before EPA does not provide for

enabling legal authority establishing a dedicated fund. No

demonstration has been made that this would violate the District's

authorities. Currently, the District government is undergoing a

financial and administrative reorganization and many uncertainties

exist. In relation to consumer protection, the SIP must provide

assurance that adequate funding is available to develop and implement

the program as proposed. Furthermore, funds need to be secured to

implement and maintain the program through attainment. Lack of secured

funding dedicated to the I/M program jeopardizes the ability of the

program to meet the necessary emission reduction goals. The SIP needs

to describe how the emission targets will be met, describe the

resources to be used for all program operations (e.g. RSD prescreen,

quality assurance checks, etc.), and include a final budget plan

including description of equipment resources. The budget plan needs to

provide a demonstration that the District has adequate resources to

perform all program functions and insure future funding through

operation of program until attainment is achieved. Therefore, the

District submittal does not meet the adequate tools and resources

requirements set forth in the federal I/M rule. This major deficiency

in part is the basis for EPA's proposed disapproval of the District's

I/M SIP.

Test Frequency and Convenience--40 CFR 51.355

The enhanced I/M performance standard assumes an annual test

frequency; however, other schedules may be approved if the performance

standard is achieved. The SIP shall describe the test year selection

scheme, how the test frequency is integrated into the enforcement

process and shall

[[Page 53170]]

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 District's submittal provides for a program of biennial testing

in a centralized network. Many of the details related to this section

must still be developed by the District before EPA can determine if the

requirements are satisfied. Although the District expects sufficient

testing facilities using RSD as a prescreen, to provide adequate

convenience, there are no provisions for additional testing if

participation is lower than expected. The SIP fails to provide an

evaluation of how the RSD prescreen will ensure short wait times.

Furthermore, the SIP does not provide a description of the test

frequency, or regulations that ensure vehicles are tested at an assumed

frequency, including sufficient safeguards in the enforcement system to

ensure that vehicles are tested according to schedule. These are minor

deficiencies which the District must ultimately correct for EPA to give

final full approval.

Vehicle Coverage--40 CFR 51.356

The performance standard for enhanced I/M programs assumes coverage

of all 1968 and later model year light duty vehicles and light duty

trucks and heavy duty trucks up to 26,000 pounds 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 the same type of test network

as other vehicles in the state, 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 must include the

legal authority or rule necessary to implement and enforce the vehicle

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

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. Such exemptions shall be accounted for

in the emissions reduction analysis.

The District's SIP submittal does not provide a description of the

number and types (broken down by model year, fuel type, vehicle class,

a weight class) of vehicles the program will cover. The regulations

provide that vehicles model year 1968 and newer, up to a weight of

26,000 gross vehicle weight, must undergo an emissions test. The

District states in the SIP narrative text that it will provide self

testing for fleets, (testing at the fleets facilities, or during

special hours at the District stations), but no regulatory or legally

enforceable provisions are established to provide for this testing.

Although Federal fleets are subject to meet the same requirements as

all District registered vehicles, the District plan does not provide a

plan for testing of Federal vehicles. The SIP needs to provide a

description of the Federal fleet inspection program area. The

District's SIP submittal does not account for vehicles registered or

required to be registered in the programs. The SIP needs to provide an

estimate of unregistered vehicles. The District's SIP submittal claims

that number of vehicles that operate in the District but are not

registered in the District is insignificant. The District offers no

plan to inspect and certify these vehicles. Data to support the

District's claim of insignificance needs to be provided. In light of

the fact that the District of Columbia is a major commuting community

center for vehicles from suburban Maryland and Virginia, EPA questions

whether such vehicles are truly insignificant. Furthermore, the program

needs to provide provisions to account for these vehicles, whether or

not they are insignificant. The SIP submittal and modeling do not

provide a description and accounting of vehicles registered in the

District but operating primarily outside the District. These are minor

deficiencies that must ultimately be corrected for EPA final full

approval.

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

51.357 and in the EPA document entitled ``High-Tech I/M Test

Procedures, Emission Standards, Quality Control Requirements, and

Equipment Specifications'', EPA-AA-EPSD-IM-93-1, dated April 1994. The

federal I/M rule also requires vehicles that have been altered from

their original certified configuration (i.e. engine or fuel switching)

to be subject to the requirements of Sec. 51.357(d).

The District regulation Title 18 DCMR provides one set of standards

for all subject vehicles model years. The standards are in a grams per

mile (gpm) format, achieved with a transient test. The District

proposes to use an idle test on a certain percentage of the vehicle

fleet. Standards will need to be adopted in a parts per million (ppm)

format to accommodate the idle test. The District's program proposes to

utilize a BAR31 test, remote sensing prescreen and evaporative test. No

standards exist for remote sensing or the evaporative tests. Nor does

the District provide standards for switched engines. Furthermore, full

test procedures for all tests need to be provided.

The District's SIP states that tests are not to be performed

without prior repair, however, no regulations providing for such a

requirement are provided. No provisions are provided to ensure that the

vehicle owner has access to the test area to observe the entire

inspection. No provision ensures that when a failure on one part of a

test leads to failure on another part, the test procedure for a retest

is done on the originally failed component and the second component as

well. No provision is included which requires that an exhaust emission

retest be required along with a retest of the evaporative system

following an evaporative system failure and repair. No provisions are

provided that require all criteria pollutants be measured on a retest

after failure of a given pollutant. The District's submittal does not

meet the Test Procedures and Standards requirements of the federal I/M

rule. This major deficiency in part is the basis for EPA proposed

disapproval of the District's I/M SIP.

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 the state SIP submittal include written technical specifications

for all test equipment used in the program. The specifications shall

describe the

[[Page 53171]]

emission analysis process, the necessary test equipment, the required

features, and written acceptance testing criteria and procedures. The

District provides a draft Request for Bid (RFB) that details the test

equipment specifications. Appendix 8 of the District's submittal, the

draft RFB, provides for IM240 test equipment which the District

proposes to use with a BAR31 test. The evaporative purge system

specifications are not consistent with the requirements of EPA approved

specifications for a purge system. Furthermore, no specifications exist

for equipment used for the remote sensing prescreen. The District's

submittal does not contain the written technical specifications for

test equipment to be used in the program. These are minor deficiencies

and must ultimately be corrected for EPA to give final full approval.

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.

The District's submittal includes provisions which describe and

establish quality control measures for the emission measurement

equipment. However, the quality control procedures in Appendix 10 of

the District's SIP submittal are incomplete. Specifically in section

5.1.1 several blanks need to be filled in, figure 5-1 is missing, no

RSD specifications are provided. For the idle test being conducted on

pre-1980 vehicles no equipment specifications are provided (e.g.

housing construction requirements to protect analyzer bench and

electrical components from ambient temperature and humidity

fluctuations, automatic purge of system after each test). These are

minor deficiencies and must be ultimately corrected for EPA final full

approval.

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

enhanced I/M programs, an expenditure of at least $450 in repairs,

adjusted annually to reflect the change in the Consumer Price Index

(CPI) as compared to the CPI for 1989, 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 committed to in the SIP.

Although the District provides for the CAA waiver rate of $450.00

plus CPI adjustment, the regulations as adopted by the District do not

preclude the Mayor from changing the minimum waiver amount. At no time,

can the minimum waiver amount be lowered. The District will need to

amend its regulations to correct this deficiency. Time extensions are

provided for in the District program; however, no criteria or

procedures for issuance of these hardship waivers is provided. The

District needs to provide provisions to address hardship waiver

issuance criteria to support these waivers. These are minor

deficiencies that ultimately must be corrected for EPA to give final

full approval.

Motorist Compliance Enforcement--40 CFR 51.361

The federal rule requires that compliance shall be ensured through

the denial of motor vehicle registration in enhanced I/M programs

unless an exception for use of an existing alternative is approved. An

enhanced I/M area may use either sticker-based enforcement programs or

computer-matching programs if either of these programs were used in the

existing program, which was operating prior to passage of the 1990

Clean Air Act Amendments, and it can be demonstrated that the

alternative has been more effective than registration denial. The SIP

must provide information concerning the enforcement process, legal

authority to implement and enforce the program, and a commitment to a

compliance rate to be used for modeling purposes and to be maintained

in practice.

Although the District makes a statement in its SIP submittal that a

registration denial system will be used, the full text of its

legislative authority is not provided. No enforcement regulations or

procedures are provided in the SIP submittal. The District needs to

identify all agencies responsible for implementing the motorist

compliance program. A description of and accounting for all classes of

exempt vehicles needs to be provided. The SIP needs to include a

description of the plan for testing vehicles, rental car fleets, leased

vehicles, federal fleet vehicles, state and local government vehicles,

and other subject vehicles. Section 3.5 of the District's SIP claims

the current compliance rate and the effect of noncompliance due to

loopholes, counterfeiting, and unregistered vehicles is insignificant.

The District needs to explain why this is insignificant and the

rationale for such statement. The District claims a 96% compliance

rate, however, no commitment is provided that the District will

maintain this enforcement level, at a minimum, in practice. No penalty

schedule for noncompliance is provided. There is no requirement that

noncompliance cases are not to be closed until compliance is

demonstrated. No procedures are provided that prevent owners or lessors

of vehicles from avoiding the testing program through the manipulation

of the registration or titling requirements. No mechanism is provided

for certifying vehicles that have met the testing requirements and have

been passed or waived. Although the District requires that license tags

and window stickers be used, linkage of sticker issuance and

registration denial is not provided. Procedures must be established

that clearly determine when a vehicle is tested under the biennial

testing schedule. These are major deficiencies. The District's

submittal does not meet the Motorist Compliance Enforcement

requirements of the federal I/M rules. This in part the basis for EPA's

proposed disapproval of the District's I/M SIP.

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 submittal provides enforcement procedures to oversee the program to

meet the requirements of this section.

[[Page 53172]]

Quality Assurance--40 CFR 51.363

An ongoing quality assurance program must be implemented to

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

The program must 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 District provides some quality

assurance procedures. However, the procedures on covert audits are not

provided. In addition, the quality assurance procedures for equipment

audits do not include the remote sensing equipment. Equipment audits on

the RSD equipment need to be performed. This is a minor deficiency. In

addition, the procedures manual states the District will establish a

training program for auditors and a program to audit, independently,

the auditors performance. The federal I/M rule requires that auditors

to be audited at least once a year. Appendix 10.7.3 of the District SIP

submittal provides that auditors will be audited periodically, as

needed. These are minor deficiencies and must be ultimately corrected

for final full EPA approval.

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

Enforcement against licensed stations, 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 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, unless constitutionally prohibited. An official

opinion explaining any state constitutional impediments to immediate

suspension authority must be included in the submittal. The SIP must

describe the administrative and judicial procedures and

responsibilities relevant to the enforcement process, including which

agencies, courts and jurisdictions are involved, who will prosecute and

adjudicate cases and the resources and sources of those resources which

will support this function.

The District provides a citation of its legislative authority to

enforce against contractors, inspectors and stations. However, a copy

of such legal authority is not provided. The District SIP does not

contain a penalty schedule for noncompliance and list the offenses. The

first offense must be no less than $100 or 5 times the inspection fee.

The judicial procedures and the responsibilities of each person in the

judicial process are not provided. No description of resources

allocated to the judicial and enforcement process are provided. No

legal authority and/or regulation exists that provides for the

immediate suspension of station/inspector for a violation. The District

needs regulations that (1) require inspectors to receive training or

retraining where a violation or discovery of incompetence has occurred;

(2) bar certified inspectors from any involvement in inspection while

on penalty suspension; and, (3) provide auditors the authority to

temporarily suspend station and inspectors licenses or certificates

immediately upon finding a violation or equipment failure. The District

SIP provides a commitment to report to EPA statistics on enforcement

activities. The reports must at a minimum include all warnings, civil

fines, suspensions, revocations, and violations. These are minor

deficiencies and must be ultimately corrected before final full

approval.

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.

The District provides a commitment to meet all of the data

collection requirements of the federal I/M regulations. The District

will need to provide these procedures upon completion to EPA as an

official SIP revision. The District's SIP meets the requirements of the

federal I/M rule for Data Collection.

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 state 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 of each year

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 District's SIP commits to conform to the federal I/M

regulations for data analysis and reporting procedures. The District's

SIP meets the requirements of the federal I/M rule for data analysis

and reporting.

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

District's narrative indicates that the requirements for inspector

training and licensing or certification meet the federal I/M

regulations. The District commits to maintain an inspector training

program and to ensure it meets or exceeds the standards of 40 CFR

51.367 (a). The training program will cover the materials specified in

the federal I/M rule and are located in the District's regulation at 18

DCMR 617.6. An adequate description of the program must be included.

This is a minor deficiency and must be ultimately corrected for final

full approval.

Public Information and Consumer Protection--40 CFR 51.368

The federal I/M regulation requires the SIP to include public

information and consumer protection programs. The District's SIP

submittal contains a public awareness plan to meet the requirements of

this section.

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 of the federal

regulation and a description of the repair technician training

resources available in the community. The District's submittal claims

an enhanced I/M

[[Page 53173]]

training center will be administered to meet the requirements of

diagnostic and repair technician assistance. However, the lack of

funding to support the development of the District's proposed enhanced

state-of-the-art training center, remains a concern to EPA. The

District's SIP submittal does not identify when the facility will be

established and fully operational. The SIP submittal does not address

the requirement for a technician hotline service. These are minor

deficiencies and must be ultimately corrected for final full approval.

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 and/or renewing the vehicle registration.

The District's submittal does not provide any recall provisions,

including authority to require owners to show proof of compliance with

recalls in order to complete inspections and receive registration. No

commitment to submit to EPA annual reports on recall compliance is

provided by the District. No quality control procedures are provided to

track recall repairs. In light of EPA final regulations for recall

notices, the District can commit to adopt the EPA approved recall rules

upon promulgation. These are minor deficiencies and must be ultimately

addressed for final full approval.

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 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 but are

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

required to pass an out-of-cycle test. The District's SIP submittal

commits to test 0.5% of fleet, however no regulations/procedures are

provided. The District's submittal needs to provide an adequate

description of the on-road testing program. This is a minor deficiency

and must be ultimately corrected for final full approval.

State Implementation Plan Submissions/Implementation Deadlines--40 CFR

51.372-373

The submittal contains a schedule which is dependent on action by

the Financial Control Board to secure funds. The general schedule has 3

Phases: Design/Build/Operate Contract, Construction of SW Inspection

Station, and Program Effectiveness Evaluation. In Phase 1 which begins

in March 1996 and runs through to February 1997, the District plans to

issue a request for proposal (RFP), evaluate the technical content of

RFP and award a contract. In Phase 2 which begins in February 1997 and

ends January 1998, the District plans to transfer District inspectors

from the SE inspection station to the NE inspection station to continue

basic I/M and safety inspection, build and renovate a new SW inspection

station, train contractor inspectors and implement contractor control/

audit mechanisms. In Phase 3 which begins July 1996 and ends January

1998, the District plans to design effectiveness evaluation criteria,

test vehicles on IM240 and DC36 test procedures, evaluate test

procedure effectiveness and evaluate repair effectiveness. The District

needs to provide a schedule of testing of vehicles (phase-in and full),

explanation of what vehicles will be tested (model years/number

thereof), what test will be used, and when each test and program

element goes into effect (e.g. RSD prescreen, evaporative test,

technician training, full stringency cutpoints, etc.). The schedule

provides that phase-in of new inspection equipment will begin by

September 1997. The program must be fully implemented with all enhanced

program features by November 15, 1997. The performance standard

modeling start years are not consistent with the schedule provided by

the District in this section. These are minor deficiencies and must be

ultimately corrected for final full approval.

III. Discussion for Rulemaking Action

EPA's review of the District's I/M SIP revision, which was

submitted on July 13, 1995 and supplemented on March 27, 1996, finds

that it does not meet all of the relevant requirements of the NHSDA or

Clean Air Act, and 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 notice.

Proposed Action

EPA is proposing to disapprove this revision to the District SIP

for an enhanced I/M program. EPA is proposing to disapprove this action

because the District's I/M program does not meet all of the

requirements of the NHSDA, the Clean Air Act and the federal I/M rule.

Today's notice proposes to disapprove the District's I/M SIP until

such time as the District corrects the major elements of the SIP that

EPA considers deficient.

These major elements are:

(1) The proposed I/M program does not provide for a dedicated

funding mechanism to develop, implement and maintain the program

through attainment of the ozone standard. The Clean Air Act requires

that a dedicated fund be established. The District must demonstrate

that adequate funding of the program is available. Alternative funding

approaches are acceptable if it is demonstrated that the funding can be

maintained. The District does not provide for enabling legislation

establishing such secured funding.

(2) The District uses unapproved test types and claims credit

equivalency without a clear basis for those claims. The deficiencies in

the credit claims of the District's I/M program include the following:

(a) Assumes full IM240 emission reduction credit for BAR31 test

without data to support this claim.

(b) Uses remote sensing as a testing prescreen without providing

data to support emission reductions and credit calculation.

(c) Assumes full credit for a non-intrusive evaporative test with

no data to support this assumption.

(3) The submittal contains insufficiently demonstrates that the

District's program meets the high enhanced performance standard, which

is necessary for the District's air quality attainment plan. The

demonstration is insufficient due to the test equivalency stated in (2)

above and inaccurate calculation of emission reductions detailed in the

section by section analysis.

(4) The District's SIP submittal provides a citation for

registration denial but the full text of the legislation is not

provided. The District's program lacks regulatory requirements for a

registration denial system.

(5) The District's SIP is deficient in meeting the requirements of

Network Type and Program Evaluation because it contains no commitment

to evaluate the program using mass emission transient

[[Page 53174]]

testing on 0.1% of the subject fleet each year.

(6) The SIP submittal is deficient in providing adopted regulations

and procedures for each test type.

Major deficiencies must be corrected with regard to sections,

51.351, Enhanced I/M Performance Standard, 51.353, Network Type and

Program Evaluation, 51,354, Adequate Tools and Resources, 51.357, Test

Procedures and Standards, and 51.360, Motorist Compliance Enforcement.

In addition, the District's submittal does not meet a number of

miscellaneous requirements of the I/M rule. Specifically sections:

51.350, Applicability, 51.355, Testing Frequency and Convenience,

51.356, Vehicle Coverage, 51.358, Test Equipment, 51.359, Quality

Control, 51.360 Waivers and Compliance via Diagnostic Inspection,

51.362 Motorist Compliance Enforcement Program Oversight, 51.363,

Quality Assurance, 51.364 Enforcement against Contractors, Stations and

Inspectors, 51.365 Data Collection, 51.366, Data Analysis and

Reporting, 51.367 Inspection Training and Licensing or Certification,

51.368, Public Information and Consumer Protection, 51.369, Improving

Repair Technician Effectiveness, 51.370, Compliance with Recall

Notices, 51.371, On-Road Testing, and 51.372, State Implementation Plan

Transmittals. These deficiencies, described in more detail above in the

section by section analysis, must be corrected before EPA could provide

full approval for the District's I/M SIP revision.

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.

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. Sections 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.

EPA's disapproval of the District's request under Section 110 and

subchapter I, part D of the CAA does not affect any existing

requirements applicable to small entities. Any pre-existing federal

requirements remain in place after this disapproval. Federal

disapproval of the state submittal does not affect its state-

enforceability. Moreover, EPA's disapproval of the submittal does not

impose any new Federal requirements. Therefore, EPA certifies that this

disapproval action does not have a significant impact on a substantial

number of small entities because it does not remove existing

requirements and impose any new Federal requirements.

Under Section 202 of the Unfunded Mandate 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 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 small governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the disapproval action proposed does not

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

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

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

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

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

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

action.

Under section 801(a)(1)(A) of the Administrative Procedures Act

(APA) as amended by the Small Business Regulatory Enforcement Fairness

Act of 1996, EPA submitted a report containing this rule and other

required information to the U.S. Senate, the U.S. House of

Representatives and the Comptroller General of the General Accounting

Office prior to publication of the rule in today's Federal Register.

This rule [is/is not] a ``major rule'' as defined by section 804(2) of

the APA as amended.

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 Administrator's decision to approve or disapprove the

District's enhanced I/M 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.

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.

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

Dated: September 19, 1996.

Michael M. McCabe,

Regional Administrator, Region III.

[FR Doc. 96-25983 Filed 10-9-96; 8:45 am]

BILLING CODE 6560-50-P