Approval and Promulgation of Air Quality Implementation Plans; State of Maryland; Enhanced Motor Vehicle Inspection and Maintenance Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MD037-3008, MD037-3009; FRL-5642-3]

Approval and Promulgation of Air Quality Implementation Plans;

State of Maryland; Enhanced Motor Vehicle Inspection and Maintenance

Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed Conditional Approval.

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SUMMARY: EPA is proposing conditional approval of a State

Implementation Plan (SIP) revision submitted by the State of Maryland.

This revision establishes and requires the implementation of an

enhanced motor vehicle inspection and maintenance (I/M) program in the

counties of Anne Arundel, Baltimore, Calvert, Carroll, Cecil, Charles,

Frederick, Harford, Howard, Montgomery, Prince George's, Queen Anne's,

and Washington, and the City of Baltimore. The intended effect of this

action is to propose conditional approval of the Maryland enhanced

motor vehicle I/M program. EPA is proposing conditional approval

because Maryland's SIP revision is deficient in

[[Page 56184]]

some manner with respect to requirements of the CAA and EPA's I/M

program regulations. EPA regards the following deficiencies of the

Maryland program as those most significantly affecting its operation:

lack of legal authority, performance standard remodeling, and finalized

program regulations. EPA expects that Maryland will work quickly to

remedy these items. EPA also cites below other flaws of the program.

While these areas are less significant to the program's immediate

success, they still need to be corrected so as to achieve the program's

full air quality potential. This action is taken under Section 110 of

the 1990 Clean Air Act (the Act, or CAA).

DATES: Comments must be received on or before December 2, 1996.

ADDRESSES: Comments may be mailed to David L. Arnold, Chief, Ozone/CO &

Mobile Sources Section, Mailcode 3AT21, U.S. Environmental Protection

Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania

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

for public inspection during normal business hours at the Air,

Radiation, and Toxics Division, U.S. Environmental Protection Agency,

Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107 and

the Maryland Department of the Environmental, 2500 Broening Highway,

Baltimore, Maryland 21224.

FOR FURTHER INFORMATION CONTACT: Catherine L. Magliocchetti @ 215-566-

2174, at the EPA Region III address above, or via e-mail at

[email protected]. While information may be

requested via e-mail, comments must be submitted in writing to the

Region III office.

SUPPLEMENTARY INFORMATION:

I. Introduction

Motor vehicles are significant contributors of volatile organic

compounds (VOC), carbon monoxide (CO) and nitrogen oxide (NOX)

emissions. An important control measure to reduce these emissions is

the implementation of a motor vehicle inspection and maintenance (I/M)

program. Despite being subject to the most rigorous vehicle pollution

control program in the world, cars and trucks still create toxic

contaminants, about half of the ozone air pollution and nearly all of

the carbon monoxide air pollution in United States cities. Of all

highway vehicles, passenger cars and light-duty trucks emit most of the

vehicle-related carbon monoxide and ozone-forming hydrocarbons. They

also emit substantial amounts of nitrogen oxides and air toxics.

Although the U.S. has made progress in reducing emissions of these

pollutants, total fleet emissions remain high. This is because the

number of vehicle miles traveled on U.S. roads has doubled in the last

20 years to 2 trillion miles per year, offsetting much of the

technological progress in vehicle emission control over the same two

decades. Projections indicate that the steady growth in vehicle travel

will continue. Ongoing efforts to reduce emissions from individual

vehicles will be necessary to achieve our air quality goals.

Today's cars are absolutely dependent on properly functioning

emission controls to keep pollution levels low. Minor malfunctions in

the emission control system can increase emissions significantly, and

the average car on the road emits three to four times the new car

standard. Major malfunctions in the emission control system can cause

emissions to skyrocket. As a result, 10 to 30 percent of cars are

causing the majority of the vehicle-related pollution problem.

Unfortunately, it is rarely obvious which cars fall into this category,

as the emissions themselves may not be noticeable and emission control

malfunctions do not necessarily affect vehicle driveability.

Effective I/M programs, however, can identify these problem cars

and assure their repair. I/M programs ensure that cars are properly

maintained during customer use. I/M produces emission reduction results

soon after the program is put in place.

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

polluted cities 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 urbanized

populations of 200,000 or more; CO areas that exceed a 12.7 parts per

million (ppm) design value 1 with urbanized populations of 200,000

or more; and all metropolitan statistical areas with a population of

100,000 or more in the Northeast Ozone Transport Region.

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\1\ The air quality design value is estimated using EPA

guidance. Generally, the fourth highest monitored value with 3

complete years of data is selected as the ozone design value because

the standard allows one exceedance for each year. The highest of the

second high monitored values with 2 complete years of data is

selected as the carbon monoxide design value.

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``Basic'' and ``enhanced'' I/M programs both achieve their

objectives by identifying vehicles that have high emissions as a result

of one or more malfunctions, and requiring them to be repaired. An

``enhanced'' program covers more of the vehicles in operation, employs

inspection methods that are better at finding high emitting vehicles,

and has additional features to better assure that all vehicles are

tested properly and effectively repaired.

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), herein

referred to as the November 1992 I/M Rule. Flexibility amendments to

this rule, which provided for a low enhanced I/M performance standard

were published on September 18, 1995 (60 FR 48029) and additional I/M

flexibility amendments for qualified areas in the OTR were published on

July 25, 1996 (61 FR 39031).

Under sections 182(c)(3), 187(a)(6) and 187(b)(1) of the Act, any

area having a 1980 Bureau of Census-defined urbanized area population

of 200,000 or more and that is either: (1) designated as serious or

worse ozone nonattainment or (2) moderate or serious CO nonattainment

areas with a design value greater than 12.7 ppm, shall implement

enhanced I/M in the 1990 Census-defined urbanized area. The Act also

established the ozone transport region (OTR) in the northeastern United

States which includes the States of Maine, Vermont, New Hampshire,

Massachusetts, Rhode Island, Connecticut, New York, New Jersey,

Maryland, Delaware, and Northern Virginia and the District of Columbia.

Sections 182(c)(3) and 184(b)(1)(A) of the Act require the

implementation of enhanced I/M programs in all metropolitan statistical

areas (MSAs) located in the OTR that have a population of 100,000 or

more people.

The I/M regulation establishes minimum performance standards for

basic and enhanced I/M programs as

[[Page 56185]]

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

enhanced I/M programs is based on a high-technology transient test,

known as IM240, for new technology vehicles (i.e, those with closed-

loop control and, especially, fuel injected engines), including a

transient loaded exhaust short test incorporating hydrocarbons (HC), CO

and NOx cutpoints, an evaporative system integrity (pressure) test and

an evaporative system performance (purge) test.

Under the November 1992 I/M Rule enhanced I/M programs were

required to initially begin phased-in implementation by January 1,

1995, with final full implementation slated for January 1, 1996. Due to

recent EPA rule changes, and the flexibility afforded by the National

Highway Systems Designation Act of 1995 (NHA), EPA believes, as

explained below, that all states should be afforded extra time to begin

full implementation of their enhanced I/M programs.

II. Background

The State of Maryland is part of the OTR and contains the following

MSAs or parts thereof with populations of 100,000 or more: Baltimore;

Washington, DC; Hagerstown; and the Philadelphia-Wilmington-Trenton

Consolidated MSA. Sections 182(c)(3) and 184(b)(1)(A) of the Act

require all states in the OTR region which contain MSAs or parts

thereof with populations of 100,000 or more, to submit a SIP revision

for an enhanced I/M program.

On July 11, 1995 the Maryland Department of the Environment (MDE)

submitted to EPA a SIP revision for an enhanced I/M program. This SIP

revision included a copy of the final enhanced I/M regulations, the

Maryland Transportation Article at Title 23, Subtitle 2 (herein

referred to as Subtitle 2 of the Maryland Transportation Article); the

Maryland I/M Request for Proposals (RFP); the Maryland I/M legislation,

and supporting documents. On March 27, 1996, MDE submitted an amendment

to this SIP revision, in response to changes to the federal program

requirements resulting from new federal legislation governing enhanced

I/M programs, and EPA rule changes to the program. Maryland originally

had submitted fully adopted state regulations in the July 11, 1995

revision. Parts of the Maryland I/M regulations were reproposed by

Maryland because of the flexibility afforded from the federal and state

legislative changes, and Maryland's amendment to the SIP revision

contains proposed regulatory changes to Maryland's program. As a

condition of this rulemaking, Maryland will need to fully adopt and

submit final regulations to EPA.

EPA's summary of the requirements of the federal I/M rule as found

in 40 CFR 51.350 through 51.373, and EPA's analysis of Maryland's

submittal are outlined below. A more detailed analysis of Maryland's

submittal is contained in a Technical Support Document (TSD) dated

September 3, 1996 which is available from the Region III office, listed

in the ADDRESSES section. Parties desiring additional details on the

federal I/M regulation are referred to the November 5, 1992 Federal

Register document (57 FR 52950) or 40 CFR 51.350 through 51.373, as

well as the I/M Flexibility Amendments in the September 18, 1995

Federal Register document (60 FR 48029) and the additional I/M

flexibility amendments for qualified areas in the OTR, published on

July 25, 1996 at (61 FR 39031).

III. EPA's Analysis of Maryland Enhanced I/M Program

As discussed above, sections 182(c)(3), 184(b)(1)(A), 187(a)(6) and

187(b)(1) of the Act require that States adopt and implement

regulations for an enhanced I/M program in certain areas. Based upon

EPA's review of Maryland's submittal, EPA believes Maryland has not

complied with all aspects of the Act and the I/M rule. For certain

sections of the I/M rule and/or of the Act, which are identified below

and with which Maryland has not yet fully complied, EPA proposes to

conditionally approve the SIP revision if EPA receives a commitment

from Maryland to correct said deficiencies. Before EPA can continue

with the rulemaking process, Maryland must make a commitment within 30

days of October 31, 1996 to correct these deficiencies by a date

certain within 1 year of EPA's conditional approval. If Maryland does

not make this commitment, EPA proposes in the alternative to disapprove

the Maryland I/M SIP revision. In addition, Maryland must correct these

deficiencies by the date specified in the commitment, or the

conditional approval will convert to a disapproval under the Act

section 110(k)(4).

Applicability--40 CFR 51.350

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

require all states in the OTR which contain MSAs or parts thereof with

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

The State of Maryland is part of the OTR and contains the following

MSAs or parts thereof with populations of 100,000 or more: Baltimore;

Washington, DC; Hagerstown; and the Philadelphia-Wilmington-Trenton

Consolidated MSA. The Baltimore; Washington, DC; and Philadelphia areas

are also classified as serious or worse nonattainment areas and are

also required to implement an enhanced I/M program as per section

182(c)(3) of the Act and 40 CFR 51.350(2).

Under the requirements of the Act, the following 14 jurisdictions

in Maryland (which are located in the above listed MSAs) are subject to

the enhanced I/M program requirements: Anne Arundel, Baltimore,

Carroll, Calvert, Cecil, Charles, Frederick, Harford, Howard,

Montgomery, Prince George's, Queen Anne's, and Washington counties, and

the City of Baltimore.

The Maryland I/M legislative authority (Subtitle 2 of the Maryland

Transportation Article) provides the legal authority to establish the

geographic boundaries of the program. The program boundaries listed in

Appendix C of the SIP revision are the inclusive zipcode listings for

all of the jurisdictions listed above, and meet the federal I/M

requirements under Sec. 51.350.

The federal I/M regulation requires that the state program shall

not sunset until it is no longer necessary. EPA interprets the federal

regulation as stating that a SIP which does not sunset prior to the

attainment deadline for each applicable area satisfies this

requirement.

Maryland's legislative authority for this program states in section

23-208 that unless changed by Act of the legislature the program shall

sunset on December 31, 2001, which is before Baltimore's severe

nonattainment deadline of November 15, 2005. However, section 23-202 of

the legislative authority apparently

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supersedes section 23-208, stating that this program shall remain in

effect for as long as required by federal law. EPA needs confirmation

from the State Attorney General's Office that section 23-202 applies to

Maryland's program, and whether section 23-202 constitutes an Act of

the legislature extending the sunset date in section 23-208. Therefore,

EPA proposes to conditionally approve the Maryland SIP based upon a

commitment from Maryland within 30 days, to either provide such an

opinion from the State Attorney General's Office that clearly says that

Maryland's interpretation of the sunset date is no earlier than

November 15, 2005; or in the absence of such an opinion, to commit to

provide EPA with new legislative authority that allows for such an

extended sunset date of the program. Maryland's commitment must provide

for either, (a) the opinion, or (b) the authority, to be provided to

EPA by a date certain within 1 year of the final conditional ruling. If

Maryland fails to make the commitment, EPA proposes in the alternative

to disapprove this SIP. If Maryland fails to meet the condition by the

date specified, EPA proposes to convert this rulemaking to a

disapproval at that time by letter.

Enhanced I/M Performance Standard--40 CFR 51.351

In accordance with the Act and with the I/M rule, 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 modeling

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. 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

NOX and HC. The Maryland submittal must meet the enhanced I/M

performance standard for HC and NOX in all subject I/M areas.

The Maryland submittal includes a modeling demonstration of the

performance standard that uses the following program design parameters.

EPA here notes that not all of Maryland's parameter assumptions are

acceptable, and as a condition of this rulemaking Maryland must remodel

its program and demonstrate compliance with the I/M performance

standard:

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Parameter Maryland's program

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Network type................. Centralized, test-only.

Start date................... 1984 (existing program); 1989 and 1997

(new pressure and purge testing

elements).

Test frequency............... Biennial (i.e. every two years).

Model year/vehicle type 1968 and newer model year (1968 +) light

coverage. duty gasoline vehicles (LDGV); light

duty gasoline trucks 1 & 2 (LDGT1,

LDGT2); heavy duty gasoline vehicles up

to 26,000 lbs gross vehicle weight

(HDGV).

Exhaust emissions test type.. IM240, transient test type for all model

year vehicles in program.

Emission standards........... 0.8 gpm HC, 15 gpm CO, 2.0 gpm NOX up

until January 1, 1999; 0.6 gpm HC, 15

gpm CO and 1.5 gpm NOX after December

31, 1998. [Also, transient standards can

be found in the Maryland I/M

regulations; June 10, 1994 edition of

the Maryland Bulletin.]

Emission control device Pressure and purge check on all model

visual inspection. year vehicles.

Evaporative system function Pressure decay test 1968 +

checks. vehicles.

Purge test 1984 + vehicles.

Stringency rate pre-1981 40%.

vehicle failure).

Waiver rate.................. 3%.

Compliance rate.............. 100%.

Evaluation dates............. July 1999, July 2002, July 2005.

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Since Maryland used inappropriate assumptions in modeling the

program, Maryland's modeling demonstration was not performed correctly,

and submittal of a proper modeling demonstration by Maryland is a

condition for full approval of the SIP revision. Therefore, Maryland

must remodel the program using valid assumptions and verify for EPA

that the I/M program in Maryland meets or exceeds the model I/M program

performance standard. This demonstration must prove that the Maryland

program design will meet the minimum enhanced I/M performance standard,

expressed in gpm, for HC, and NOx, for the years 2002 and 2005 for

all areas of Maryland covered by the program. These evaluation years

represent a change from the originally required dates of 1999, 2002 and

2005. EPA believes that new modeling of the program should not include

a 1999 evaluation year, due to changes in program implementation

schedules as per the National Highway Systems Designations Act of 1995.

Other program assumptions should be carefully verified by Maryland when

this demostration is made to EPA. A more detailed discussion of the

program design parameters can be found in the Technical Support

Document (TSD), dated September 3, 1996, compiled by EPA in evaluating

Maryland's program. Maryland should refer to the TSD for further

instructions on remodeling of the program as designed.

Therefore, EPA proposes to conditionally approve the Maryland SIP

based on receiving within 30 days of the publication of this document,

Maryland's commitment to submit to EPA by a date certain, within 1 year

of the final conditional rulemaking, a modeling demonstration of the

program using the appropriate assumptions and methodology (which are

further discussed in more detail in the TSD). If Maryland fails to make

the commitment EPA proposes in the alternative to disapprove the SIP.

If Maryland fails to meet the condition by the date specified, EPA

proposes to convert this rulemaking to a disapproval at that time by

letter.

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

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program, and to determine if the program is meeting the requirements of

the Act and the federal I/M regulation. The SIP shall include details

on the program evaluation and shall 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, description of the sampling

methodology, the data collection and analysis system and the legal

authority enabling the evaluation program. In addition to these

requirements, the state should also be prepared, in accordance with

this section of the I/M rule, to provide in the biennial report, the

results of undercover surveys of inspector effectiveness related to

identifying vehicles in need of repair. Also, the state should be

prepared in its biennial reports to provide local fleet emission

factors in assessing the actual effectiveness of the I/M program.

The submittal includes an ongoing program evaluation that meets the

federal I/M regulation requirements. EPA believes that Maryland has the

authority to implement this portion of the program under its general

authority for the program.

Adequate Tools and Resources--40 CFR 51.354

The federal regulation requires the state 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 the 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 July 1995 SIP revision documented sufficient funds, equipment

and personnel have been appropriated to meet program operation

requirements for 1995 and 1996. However, no update on the program's

financial figures were provided with the SIP revision amendment made in

March 1996. In the 1995 submittal, a test fee of $17 was set by

Maryland and the contractor to cover the operation costs of the

program, and approximately $6 from each fee which was to cover

Maryland's administrative costs for quality control and assurance.

Since the test fee was capped at $14 by a change in the program's

enabling legislation, the quality control budget for this program

appears to have been cut by one half. Therefore, as a condition of this

rulemaking, Maryland should commit to providing updated budget

information to EPA for the years 1997 and 1998, including a detailed

explanation of the number of personnel dedicated to quality assurance,

data analysis, program administration, and enforcement. Further,

Maryland should give its budget allotment for the equipment resources

that will be needed to run an effective quality assurance program,

including facilities and computer costs required for data analysis,

processing and reporting.

EPA understands that Maryland has made certain provisions to

account for changes cited above in the program's budget structure and

test fee, and EPA is merely requesting an update of the program's

budgetary documentation in order to satisfy this condition.

Maryland's submittal has not provided the necessary documentation

for this section to show that Maryland meets the adequate tools and

resources requirements set forth in the federal I/M regulations and is

therefore, not approvable.

Therefore, EPA proposes to conditionally approve the Maryland SIP

based upon a commitment from Maryland within 30 days, to obtain and/or

demonstrate to EPA that adequate funding and tools exist to execute the

I/M program in accordance with this section of the I/M rule, by a date

certain within 1 year. If Maryland fails to make the commitment EPA

proposes in the alternative to disapprove the SIP. If Maryland fails to

meet the condition by the date specified, EPA proposes to convert this

rulemaking to a disapproval at that time by letter.

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 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 Maryland enhanced I/M regulation provides for a biennial test

frequency. Maryland's Transportation Article and Maryland's I/M

regulation provide the legal authority to implement and enforce the

biennial test frequency. The Maryland I/M Request for Proposals (RFP),

and the Maryland I/M contractors's bid response provide sufficient

evidence that convenient services will be provided to the motorist.

The Maryland submittal meets the test frequency and convenience

requirements of the federal I/M regulations and is approvable.

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 up to 8,500 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 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

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 Maryland enhanced I/M program requires coverage of all 1977 and

newer

[[Page 56188]]

LDGV, LDGT1 and LDGT2, and HDGV up to 26,000 pounds GVWR which are

registered or required to be registered in the I/M program area. As of

the date of the SIP submittal, 1.4 million vehicles per year (2.8

million biennially) will be subject to enhanced I/M testing. Maryland's

regulation does not currently include vehicles operating on all fuel

types but Maryland commits to adding the required testing of these

vehicles once EPA promulgates regulations on alternative fueled vehicle

I/M testing. Subtitle 2 of the Transportation Article and the Maryland

I/M regulation provide the legal authority to implement and enforce the

vehicle coverage.

Maryland's program provides for fleet self-testing for the first

year of the program, using the same testing requirements and the same

quality control standards as the contractor-run component. Maryland's

plan for testing fleet vehicles is acceptable and meets the

requirements of the federal I/M regulation. Maryland's regulation

requires vehicles which are operated on Federal installations located

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

vehicles are registered in the State or local I/M area, and is

approvable.

Maryland's regulation provides for special exemptions for fire,

rescue, and ambulance equipment owned or leased by State or local

governments, and for rescue squad, voluntary fire department or

ambulance company vehicles registered as emergency vehicles. Also

exempted are motorcycles, gasoline trucks greater than 26,000 lbs,

Class E and F trucks and tractors, Class H school vehicles, Class L

historic vehicles, Class N street rods, Class P passenger buses, diesel

and electric vehicles, all model year 1976 and older model years, and

military tactical vehicles. These exemptions are acceptable under this

section of the I/M requirements.

The SIP revision does not include a full description of the State's

plan for how subject vehicles will be identified. Also, Maryland does

not describe the mechanism for identification of vehicles that are

routinely operated in the program area but that may not be registered

in the area. The SIP does not provide an estimate of the number of

unregistered vehicles operating in the program area. Maryland should

ensure that all elements of this section of the I/M rule are addressed

for SIP purposes, and for the purpose of implementing an effective

program.

Therefore, EPA proposes to conditionally approve the Maryland SIP

based upon a commitment from Maryland within 30 days, to provide an

explanation of how all subject vehicles in the program will be

identified, and cure all of the deficiencies related to this section of

the I/M rule as explained above, by a date certain within 1 year. If

Maryland fails to make the commitment EPA proposes in the alternative

to disapprove the SIP. If Maryland fails to meet the condition by the

date specified, EPA proposes to convert this rulemaking to a

disapproval at that time by letter.

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 regulation also requires vehicles that have been altered

from their original certified configuration (i.e. engine or fuel

switching) to be tested in the same manner as other subject vehicles.

Maryland regulations and Section VII of the RFP provide written

test procedures for transient emission and evaporative system purge and

pressure testing in accordance with the requirements of the I/M rule.

However, proposed changes to Maryland regulations will prohibit the

invasive testing procedures previously recommended by EPA and

originally adopted by Maryland. The proposed non-invasive gas-cap only

check does not have written procedures given in the SIP revision

amendment. EPA notes that Maryland was unable to provide written

procedures for this element in the March submittal since this test is

different from the pressure test originally slated for Maryland's

program. EPA also understands that Maryland did not have gas-cap test

procedures avaiable at the time of the March 1996 submittal, as a

result of legislative changes at Maryland and federal level. However,

Maryland should now be able to quickly encorporate testing procedures

for this element into its program, and provide these specifications as

part of its SIP revision to EPA. EPA cautions Maryland however, that

this type of pressure check does not achieve the emission reduction

credit of that in EPA's pressure test regulations. Maryland anticipates

non-invasive purge and pressure procedures will be developed in the

future, and commits to adopting non-invasive purge procedures when they

become available.

The Maryland regulation provides for two sets of permanent emission

standards for the transient test, one set which applies from 1997

through 1998; and a second set of more stringent standards that will

apply in calendar year 1999 and later. The schedule for implementation

of the permanent standards is approvable and should be used in the

performance standard modeling demonstration.

Maryland regulations do not meet the requirements of the I/M rule

on several counts. Maryland must include by regulation, a provision to

prohibit against prior repair or adjustment to vehicles at the testing

facilities at the time the inspection is being performed. Maryland

should also include as part of its SIP revision, all applicable state

regulations that address testing of vehicles with switched engines and

regulations that address vehicles with no certified engine

configuration.

Therefore, EPA proposes to conditionally approve the Maryland SIP

based upon a commitment from Maryland within 30 days, to amend

Maryland's regulation to prohibit repair or adjustment at testing

facilities and cure all of the deficiencies related to this section of

the I/M rule as explained above, by a date certain within 1 year. If

Maryland fails to make the commitment EPA proposes in the alternative

to disapprove the SIP. If Maryland fails to meet the condition by the

date specified, EPA proposes to convert this rulemaking to a

disapproval at that time by letter. Under this commitment, Maryland

must adopt pressure test procedures beyond the gas-cap check if

Maryland is to take credit for pressure testing in its modeling

demonstration of the performance standard.

EPA proposes to conditionally approve the Maryland SIP based on

Maryland's commitment to amend its regulations at the time when non-

invasive procedures become available from EPA. Maryland need not submit

a commitment to adopt purge procedures, since one is already contained

in the SIP revision amendment.

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 SIP submittal include written technical specifications for all

test equipment used in the program. The specifications shall describe

the emission analysis process, the necessary test equipment,

[[Page 56189]]

the required features, and written acceptance testing criteria and

procedures.

Maryland's submittal contains the written technical specifications

for all emission test equipment to be used in the program. The

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. EPA believes that Maryland has

adequately addressed the requirement to update emission test equipment,

in order to accommodate new technology vehicles and changes to the

program, through the annual reporting requirement found in Maryland's

SIP revision.

Maryland's program is deficient with respect to the gas-cap check

referenced in COMAR 11.14.08.12, which does not have written

specifications as required by the I/M rule, and therefore must be made

a condition of this rulemaking. EPA again notes that Maryland was

unable to provide specifications for this element in the March

submittal since this test is different from the pressure test

originally slated for Maryland's program. EPA also understands that

Maryland did not have gas-cap test specifications available at the time

of the March 1996 submittal, as a result of legislative changes at the

state and federal level. However, Maryland should now be able to

quickly incorporate testing specifications for this element into its

program, and provide these specifications as part of its SIP revision

to EPA.

Therefore, EPA proposes to conditionally approve the Maryland SIP

based upon a commitment from Maryland within 30 days, to incorporate

written gas-cap check testing procedures into Maryland's regulations,

by a date certain within 1 year. If Maryland fails to make the

commitment EPA proposes in the alternative to disapprove the SIP. If

Maryland fails to meet the condition by the date specified, EPA

proposes to convert this rulemaking to a disapproval at that time by

letter.

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.

Maryland's submittal contains the State's regulations, the RFP and

the contractor's bid response, which together describe and establish

quality control measures 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. Maryland believes, and EPA agrees that the unique

identification number given on each vehicle inspection report (VIR) is

an adequate measure that Maryland uses to maintain counterfeit

resistant compliance documents. Further, the VIRs issued to each lane

inspector are accounted for on a numbered basis, and lane inspectors

are responsible for the number of compliance documents issued while on

duty.

Maryland's SIP revision meets all of this section's requirements,

and is approvable with respect to those r.

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. 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.

Subtitle 2 of Maryland's Transportation Article, and the Maryland

I/M regulation provide the necessary authority to issue waivers, set

and adjust cost limits, administer and enforce the waiver system, and

set a $450 cost limit and allow for an annual adjustment of the cost

limit to reflect the change in the CPI as compared to the CPI in 1989.

The Maryland regulation, the RFP, and the contractor's bid response

include provisions that address waiver criteria and procedures,

including cost limits, tampering and warranty related repairs, quality

control and administration. These provisions meet the federal I/M

regulations requirements and are approvable. In cases of economic

hardship, time extensions are allowed under the program, but the length

of the extension may not exceed one test cycle. Maryland has set a

maximum waiver rate of 3% for both pre-1981 and 1981 and later vehicles

and has Stated that corrective action will be taken if the waiver rate

exceeds 3%. Maryland should use this waiver rate in the performance

standard modeling demonstration.

The Maryland SIP revision does not specify the criteria that it

will use to determine economic hardship, and it is unclear to EPA if

Maryland intends to grant full waivers from compliance with the program

as a result of economic hardship, or if Maryland only intends to issue

time extensions for the purpose of compliance with the program.

Therefore, as a condition of approval, Maryland should provide further

documentation for this area, and fully explain the criteria that

Maryland will use to issue these exemptions or extensions.

Therefore, EPA proposes to conditionally approve the Maryland SIP

based upon a commitment from Maryland within 30 days, to fully document

this aspect of the program and establish, if necessary, criteria for

granting hardship exemptions by regulation or procedures manual and

cure all of the deficiencies related to this section of the I/M rule as

explained above, by a date certain within 1 year. If Maryland fails to

make the commitment EPA proposes in the alternative to disapprove the

SIP. If Maryland fails to meet the condition by the date specified, EPA

proposes to convert this rulemaking to a disapproval at that time by

letter.

Motorist Compliance Enforcement--40 CFR 51.361

The federal regulation 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. The SIP shall 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.

Title 23, Subtitle 2, of the Maryland Transportation Article and

the Maryland I/M regulation provide the legal authority to implement a

registration denial system. Maryland's program will use a registration

suspension mechanism, followed by registration denial if the vehicle is

not in compliance with the inspection requirement on the subsequent

registration renewal period.

[[Page 56190]]

As a condition of this approval, Maryland needs to provide EPA with

a description of the compliance enforcement program for those vehicles

routinely operated in, but not necessarily registered in the program

area. The Maryland SIP revision does state that MVA routinely

identifies such vehicles, but more information is needed as to how this

targeting and enforcement takes place in Maryland. Maryland needs to

track and limit the use of out-of-state exemptions as well. An

explanation as to the handling of out-of-state vehicles should be

provided to EPA as a condition of this rulemaking. Further, Maryland

needs to describe the mechanism for encouraging the enforcement of

vehicle transfer requirements when vehicle owners move into the I/M

area. For the purposes of remodeling the program's demonstration of

meeting the I/M performance standard, Maryland will need to either use

the default value of 96% for the compliance rate (as documented in the

July 1995 SIP revision submitted to EPA), or provide further

documentation to EPA that proves Maryland's subsequent claim of 100%

compliance is more appropriate for modeling purposes. Maryland's

modeling demonstration should include an assessment of noncompliance

due to loopholes, counterfeiting and unregistered vehicles in the area,

as well as the number of vehicles operating in the area without valid

registrations. Maryland should include estimates of compliance losses

and the impact of fixes to the compliance enforcement program based

upon a detailed analysis of actual program data. Maryland must also

commit to a minimum enforcement level to be used in modeling and

maintained in operation of the program. Maryland needs to supply EPA

with documentation that motorists are routinely cited for noncompliance

with the registration requirement of Maryland's law.

Under Maryland's regulation, those motorists who choose not to

comply with the inspection requirement will have their vehicle

registrations suspended. The I/M rule requires that penalties for

noncompliance with the program be mandatory and meaningful.

Noncompliance with the Maryland program subjects a motorist to up to

$500 in penalties. While EPA does consider this penalty meaningful when

compared to the minimum waiver expenditure of $450 in 1998, Maryland

should adjust the penalty for noncompliance to a higher rate in later

years, when the waiver limit is adjusted to include the CPI increase.

In this way, noncompliance with the program will continue to be at

least as costly as compliance with the program. Further, EPA

understands that in lieu of a court appearance for a registration

suspension, a motorist may plead guilty and pay $250 plus court costs,

and accept a misdemeanor conviction under State law. EPA needs

clarification from Maryland as to whether a motorist's vehicle is

impounded when a motorist is cited for driving with a suspended

registration. Maryland should clarify if this is the case, and if so,

EPA considers the $250 fine coupled with seizure of the vehicle as an

adequate and meaningful measure for the purposes of this section.

Also per the I/M rule, Maryland is required to have an external,

readily visible means of determining a vehicle's compliance with the

registration requirement. While Maryland does not provide such

information in its SIP revision, EPA recognizes that such an element is

present in Maryland's registration process. EPA expects that Maryland

will continue the practice of issuing month/year stickers to affix to a

vehicle's license plate for the purpose of externally identifying

complying vehicles. Maryland will need to keep this practice instituted

for as long as the I/M program is operational in order for this program

to remain approvable. Should Maryland discontinue or change this

practice, Maryland will need to notify EPA as to the replacement

enforcement mechanism that will be used for this requirement, or EPA

may find that Maryland has failed to implement the program.

Maryland also needs to supply EPA with proof that all types of

fraud are prevented at the time of vehicle registration, especially

through manipulation of registration or titling requirements. All

exemption-triggering elements to a vehicle's registration should be

confirmed through physical examination of the vehicle. Maryland does

require valid documentation to prove address changes into or out of the

I/M program areas, however, there is no evidence in the SIP revision

that Maryland visually verifies exemption-triggering registration

status for vehicles. This is an important facit of the program

implementation, and Maryland will need to submit a commitment to

correct this provision for the purposes of compliance with this

section.

Therefore, EPA proposes to conditionally approve the Maryland SIP

based upon a commitment from Maryland within 30 days, to demonstrate

that an acceptable enforcement compliance program exists in accordance

with this section of the I/M rule and cure all of the deficiencies

related to this section of the I/M rule as explained above, by a date

certain within 1 year. If Maryland fails to make the commitment EPA

proposes in the alternative to disapprove the SIP. If Maryland fails to

meet the condition by the date specified, EPA proposes to convert this

rulemaking to a disapproval at that time by letter.

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 Maryland SIP does not describe how the enforcement program

oversight is quality controlled and quality assured. The SIP revision

does not include the procedures document that will detail the specifics

of the implementation of the oversight program. Maryland should include

a description of the program's information management activities, as

well as the written procedures for the activities of enforcement

personnel involved in monitoring the program, and the procedures used

for auditing the enforcement personnel. The penalties associated with

testing stations' missing program documents should also be included in

Maryland's quality assurance program, and should reflect the ``street

value'' of such items (i.e. test fee plus the minimum waiver

expenditure).

Maryland needs to specify how and when periodic auditing and

analysis of the testing database will occur. Comparison of the testing

and enforcement database needs to be done to determine program

effectiveness and to trigger additional enforcement activities if

irregularities are found in the system. Compliance of the in-use fleet

should be assessed through parking lot surveys and road-side pullovers.

Therefore, EPA proposes to conditionally approve the Maryland SIP

based upon a commitment from Maryland within 30 days, to demonstrate

that an acceptable enforcement compliance oversight program exists in

accordance with this section of the I/M rule and cure all of

[[Page 56191]]

the deficiencies related to this section of the I/M rule as explained

above, by a date certain within 1 year. If Maryland fails to make the

commitment EPA proposes in the alternative to disapprove the SIP. If

Maryland fails to meet the condition by the date specified, EPA

proposes to convert this rulemaking to a disapproval at that time by

letter.

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 Maryland submittal commits to establishing separate procedures

for conducting overt and covert audits. These audits results should be

recorded and retained in station and inspector files. As a condition of

this rulemaking, Maryland should provide EPA with this documentation.

Performance audits of inspectors will consist of both covert and overt

audits. Maryland does not specify in the SIP revision the minimum

number of covert vehicles that will be employed to conduct covert

auditing.

Therefore, EPA proposes to conditionally approve the Maryland SIP

based upon a commitment from Maryland within 30 days, to establish

acceptable auditing procedures in accordance with this section of the

I/M rule and cure all of the deficiencies related to this section of

the I/M rule as explained above, by a date certain within 1 year. If

Maryland fails to make the commitment EPA proposes in the alternative

to disapprove the SIP. If Maryland fails to meet the condition by the

date specified, EPA proposes to convert this rulemaking to a

disapproval at that time by letter.

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 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.

Maryland does not provide a penalty schedule for enforcement

against Maryland's contractor, stations and inspectors. The program

does not give descriptions of the administrative and judicial

procedures and responsibilities relevant to the enforcement process.

There is no listing of the responsible agencies, courts, and

jurisdictions involved in the enforcement procedures, nor are the

prosecuting and adjudicating parties identified. No funding allocations

are described in the SIP revision for this section. Maryland should

ensure that penalties against the contractor and individual inspectors

conform with Sec. 51.364 of the I/M rule. These penalties should

include suspensions, retainage of pay, and retraining of inspectors who

exhibit improper conduct. The oversight agency should have the

authority to impose penalties against the contractor, even if the

contractor had no direct knowledge of the inspector's violation.

Therefore, EPA proposes to conditionally approve the Maryland SIP

based upon a commitment from Maryland within 30 days, to provide for an

acceptable penalty schedule in accordance with this section of the I/M

rule and cure all of the deficiencies related to this section of the I/

M rule as explained above, by a date certain within 1 year. If Maryland

fails to make the commitment EPA proposes in the alternative to

disapprove the SIP. If Maryland fails to meet the condition by the date

specified, EPA proposes to convert this rulemaking to a disapproval at

that time by letter.

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 Sec. 51.359. Maryland's regulation and RFP require the

collection of data on each individual test conducted and describe 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 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 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 Maryland I/M SIP 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 on meets the federal I/M regulation requirements

and is approvable. Maryland commits to submit annual reports on these

programs to EPA by July of the subsequent year. A commitment to submit

a biennial report to EPA which addresses reporting requirements set

forth in 40 CFR 51.366(e) is also included in the SIP.

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 Maryland I/M regulation requires all inspectors to receive

formal training, and be certified by the MVA. Maryland's I/M

regulation, the RFP and the contractors' proposal include a description

of and the information covered in the training program, a description

of the required written and hands-on tests and a description of the

[[Page 56192]]

certification process. However, recertification of inspectors is not

required by Maryland regulation. As a condition of this rulemaking,

Maryland must ensure that inspectors are required to be recertified at

least every two years.

Therefore, EPA proposes to conditionally approve the Maryland SIP

based upon a commitment from Maryland within 30 days, to ensure by

State regulation that recertification of inspectors is required at

least every 2 years and cure all of the deficiencies related to this

section of the I/M rule as explained above, by a date certain within 1

year. If Maryland fails to make the commitment EPA proposes in the

alternative to disapprove the SIP. If Maryland fails to meet the

condition by the date specified, EPA proposes to convert this

rulemaking to a disapproval at that time by letter.

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.

Maryland must provide for the protection of whistle blowers and

needs to document how it intends to follow up on complaints by the

public or others involved in the program.

Therefore, EPA proposes to conditionally approve the Maryland SIP

based upon a commitment from Maryland within 30 days, to provide for

the protection of whistle blowers in the program and to provide a plan

for how public complaints are handled by the State of Maryland, by a

date certain within 1 year. If Maryland fails to make the commitment

EPA proposes in the alternative to disapprove the SIP. If Maryland

fails to meet the condition by the date specified, EPA proposes to

convert this rulemaking to a disapproval at that time by letter.

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 Maryland SIP revision requires the implementation of a

technical assistance program which includes a hot line service to

assist repair technicians and a method of regularly informing the

repair facilities of changes in the program, training courses, and

common repair problems. A repair facility performance monitoring

program is also included in Maryland's I/M regulation, the RFP, and the

I/M contractors' proposal which includes providing the motorist whose

vehicle fails the test a summary of local repair facilities

performances, provides regular feedback to each facility on their

repair performance and requires the submittal of a completed repair

form at the time of retest. The performance monitoring program design

meets the criteria described in the federal regulation and is

approvable. Maryland's regulation provides for the establishment and

implementation of a repair technician training program which, at a

minimum, covers the four types of training described in 40 CFR 51.369

of the federal regulation.

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 a emission related recall receive the required repairs prior to

completing the emission test and/or renewing the vehicle registration.

Under Maryland's regulation, owners are required to comply with

emission related recalls before completing the emission test and

renewing the vehicle registration. The SIP includes procedures to be

used to incorporate national database recall information into

Maryland's inspection database and quality control methods to insure

recall repairs are properly documented and tracked. The submittal

includes a commitment to submit an annual report to EPA which includes

the recall related information as required in 40 CFR 51.370(c).

Maryland has complied with all elements of this section, and it is

approvable.

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 and are

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

required to pass an out-of-cycle test.

Legal authority to implement the on-road testing program and

enforce off-cycle inspection and repair requirements is contained in

Title 23, Subtitle 2, of the Maryland Transportation Article and

Maryland's I/M regulation. The SIP submittal requires the use of RSD to

test 20,000 vehicles per year in the I/M program area and will be

implemented by the contractor. A description of the program which

includes test limits and criteria, resource allocations, and methods of

collecting, analyzing and reporting the results of the testing are

detailed in the submittal. The on-road testing program described in the

SIP meets federal requirements and is approvable.

State Implementation Plan Submissions/Implementation Deadlines--40 CFR

51.372 through 52.373

The Maryland submittal included the State's final I/M regulations,

legislative authority to implement the program, a final RFP, portions

of the contractor's proposal, the signed contract between the State and

the contractor, and a detailed discussion on each of the required

program design elements. The start date for implementation of full-

stringency cutpoints will be June 1, 1997. These cutpoints will be

further tightened by the State in calendar year 1999 and beyond.

Onboard diagnostic (OBD) checks will be required for 1994 vehicle model

years and later, which are equipped with OBD equipment.

While Maryland did not resubmit I/M program design changes under

the National Highway System Designation Act of 1995 (NHSDA), some

elements of that legislation do affect the manner in which EPA is

ruling on Maryland's SIP revision. The NHSDA directed EPA to grant

interim approval for a period of 18 months to approvable I/M submittals

under this Act. The NHSDA 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 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.

Therefore, EPA believes Congress intended for these programs to start-

up as soon as possible, which EPA believes should be on or before

[[Page 56193]]

November 15, 1997, so that at least 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, that 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.

EPA believes that for equity reasons even states that ultimately

decided not to take advantage of the NHSDA should be able to start

their programs in the same time frame. Because of the recent enactment

of the NHSDA, many states, including Maryland, delayed implementation

of their programs while analyzing the provisions of the NHSDA and

determining whether or not to take advantage of its provisions. EPA

believes that states such as Maryland that ultimately decided not to

make a submission under the NHSDA should not be penalized in relation

to states that did make such a submission with respect to start date

requirements. These states should also start their programs as soon as

currently possible in light of the delays occasioned by the NHSDA.

Maryland has indicated that it intends to start its program by June 1,

1997. Therefore, as with submissions under the NHSDA, EPA proposes that

if Maryland fails to start its program as soon as possible, or by

November 15, 1997 at the latest, the proposed approval will convert to

a disapproval at that time after a finding letter is sent to Maryland.

Maryland has not adequately completed a modeling demonstration

showing that the program design meets the performance standard, and

Maryland must provide evidence of adequate funding and resources to

implement the program in the years 1997 and 1998. As explained above in

previous sections of this discussion, as a condition of this

rulemaking, Maryland will need to sufficiently meet the requirements of

the I/M rule for these two areas. As a further condition, Maryland will

need to fully adopt and submit to EPA, final regulations for the

program.

Therefore, EPA proposes to conditionally approve the Maryland SIP

based upon a commitment from Maryland within 30 days, to adopt and

submit final regulations to EPA and cure all of the deficiencies

related to this section of the I/M rule as explained above, by a date

certain within 1 year. If Maryland fails to make the commitment EPA

proposes in the alternative to disapprove the SIP. If Maryland fails to

meet the condition by the date specified, EPA proposes to convert this

rulemaking to a disapproval at that time by letter.

EPA's review of the material indicates that with the conditions

described above, Maryland has adopted an enhanced I/M program in

accordance with the requirements of the Act. EPA is proposing to

conditionally approve the Maryland SIP revision and the addendum to the

revision for an enhanced I/M program, which were submitted on July 11,

1995 and March 27, 1996, respectively, subject to the conditions

described above. EPA is soliciting public comments on the issues

discussed in this document 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.

Proposed Action

EPA is proposing to conditionally approve this revision to the

Maryland SIP for an enhanced I/M program based on certain

contingencies. The conditions for approvability of this SIP revision

are explained in detail under each applicable section of the I/M rule

discussion found above.

EPA proposes to conditionally approve this SIP if Maryland commits

within 30 days of this proposal to correct the deficiencies identified

in this document by a date certain within 1 year of the final

conditional ruling. If Maryland corrects the deficiencies by that date,

and submits a new SIP revision, EPA will conduct rulemaking to fully

approve the revision. Each of the conditions must be fulfilled by

Maryland and submitted to EPA as an amendment to Maryland's I/M SIP

revision. If such commitment is not made with 30 days, EPA proposes in

the alternative to disapprove the SIP revision. If Maryland does make a

timely commitment, but the conditions are not met by the specified date

within 1 year, EPA proposes that this rulemaking will convert to a

final disapproval. EPA will notify Maryland by letter that the

conditions have not been met and that the conditional approval has

converted to a disapproval. Furthermore, EPA proposes that Maryland's

program must start no later than November 15, 1997. EPA also proposes

that if Maryland fails to start its program as defined in this document

and on this schedule, the conditional approval will convert to a

disapproval after a finding letter is sent to Maryland.

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 Act

do not create any new requirements but simply approve requirements that

Maryland 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 Act,

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).

If the conditional approval is converted to a disapproval under

section 110(k), based on Maryland's failure to meet the commitment, it

will not affect any existing State requirements applicable to small

entities. Federal disapproval of Maryland's submittal would not affect

its state-enforceability. Moreover, EPA's disapproval of the submittal

would not impose a new Federal requirement. Therefore, EPA certifies

that should this approval convert to a disapproval, this disapproval

action would not have a significant impact on a substantial number of

small entities because it would not remove existing requirements nor

would it substitute a new federal requirement.

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 the 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

[[Page 56194]]

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 approval action proposed/promulgated

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 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.

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.

The Administrator's decision to approve or disapprove the Maryland

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.

If Maryland fails to meet any of the conditions of this approval

action, the EPA Regional Administrator would directly make a finding,

by letter, that the conditional approval had converted to a disapproval

and the clock for imposition of sanctions under section 179(a) of the

Act would start as of the date of the letter. Subsequently, a document

would be published in the Federal Register announcing that the SIP

revision has been disapproved.

The Administrator's decision to approve or disapprove the Maryland

I/M SIP revision will be based on whether it meets the requirements of

section 110(a)(2)(A)-(K) 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: October 16, 1996.

Stanley L. Laskowski,

Acting Regional Administrator, Region III.

[FR Doc. 96-27882 Filed 10-30-96; 8:45 am]

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