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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA 056-5015; FRL-5647-5]

Approval and Promulgation of Air Quality Implementation Plans;

Virginia; Enhanced Motor Vehicle Inspection and Maintenance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed interim rule.

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SUMMARY: EPA is proposing conditional, interim approval of a State

Implementation Plan (SIP) revision submitted by the Commonwealth of

Virginia. This revision establishes and requires the implementation of

an enhanced inspection and maintenance (I/M) program in the following

Northern Virginia localities: the Counties of Arlington, Fairfax,

Fauquier, Loudoun, Prince William, and Stafford, and the Cities of

Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park.

The intended effect of this action is to propose conditional

interim approval of the enhanced I/M program proposed by Virginia for

the Northern Virginia program area, based upon the Commonwealth's good

faith estimate that the proposed test-and-repair network design is

appropriate and will achieve the expected emissions reductions and that

the revision is otherwise in compliance with the Clean Air Act (CAA).

EPA is proposing conditional approval because the Commonwealth's SIP

revision is deficient with respect to certain requirements of the CAA

and/or EPA's I/M program regulatory requirements.

DATES: Comments must be received on or before December 6, 1996.

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

and Mobile Sources Section, Mail code 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

[[Page 57344]]

Division, U.S. Environmental Protection Agency, Region III, 841

Chestnut Building, Philadelphia, Pennsylvania 19107; and at the

Virginia Department of Environmental Quality, 629 East Main Street,

Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Brian Rehn, (215) 566-2176, at the EPA

Region III address above or via e-mail at Rehn.B[email protected].

While information may be requested via e-mail, comments must be

submitted in writing to the EPA Region III address indicated in the

Addresses section.

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. Under the NHSDA, EPA cannot require states

to adopt or implement centralized, test-only IM240 enhanced vehicle

inspection and maintenance programs as a means of compliance with

section 182, 184 or 187 of the CAA. Also under the NHSDA, EPA cannot

disapprove a state SIP revision, nor apply an automatic discount to a

state SIP revision under section 182, 184 or 187 of the CAA, because

the I/M program in such plan revision is decentralized, or a test-and-

repair program. Accordingly, the so-called ``50% credit discount'' that

was established by the EPA's I/M Program Requirements Final Rule,

(published November 5, 1992, and herein referred to as the I/M rule)

has been effectively replaced with a presumptive equivalency criteria,

which places the emission reductions credits for decentralized networks

on par with credit assumptions for centralized networks, based upon a

state's good faith estimate of reductions as provided by the NHSDA and

explained below in this section.

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

design or test type for states to use in designing 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, and the NHSDA

specifically requires that these 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, and in allowing these states to submit

proposed regulations for this plan (which can be finalized and

submitted to EPA during the interim period) it is clear that Congress

intended for states to begin testing vehicles as soon as practicable,

now that the decentralized credit issue has been clarified and directly

addressed by the NHSDA.

Submission criteria described under the NHSDA allows for a state to

submit proposed regulations for this interim program, provided that the

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

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

states are required to make good faith estimates regarding the

performance of their 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 issue this interim approval for a period of eighteen months, at

which time the interim program will be evaluated in concert with the

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

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

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

emissions reductions demonstrated through the program data may not

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

the program data to appropriately adjust these credits on a program

basis as demonstrated by the program data.

Furthermore, EPA believes that in also taking action under section

110 of the CAA, it is appropriate to grant a conditional approval to

this submittal since there are some deficiencies with respect to CAA

statutory and regulatory requirements (identified herein) that EPA

believes can be corrected by the state during the interim period.

Finally, it should also be noted that Virginia has submitted a

separate SIP revision addressing a ``basic'' I/M program requirement

for the Richmond area. EPA is not acting upon that submittal in today's

rulemaking action, and intends to act upon that submittal at a later

date.

B. Interim Approvals Under the NHSDA

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

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

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

at the end of eighteen 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 eighteen 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 on or before 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 proposes

that if the state fails to start its program on this schedule, the

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 by the I/M Rule in

Secs. 51.353 and 51.366.

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

As per the NHSDA requirements, this interim rulemaking will expire

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

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

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

state regulations) is still necessary under section 110 and under

section 182, 184 or 187 of the CAA. After EPA reviews the

Commonwealth's submitted program evaluation, final rulemaking on the

state's SIP revision will occur.

II. EPA's Analysis of Virginia's Submittal

On March 27, 1996, the Virginia Department of Environmental Quality

(DEQ) submitted a revision to its State Implementation Plan (SIP) for

an enhanced I/M program to qualify under the NHSDA. That revision

consists of enabling legislation that will allow the state to implement

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

(including a modeling analysis and detailed description of program

features), and a good faith estimate that includes the state's basis in

fact for emission reductions claims of the program. The state's credit

assumptions are based upon the removal of the 50% credit discount for

all portions of the program that are based on a test-and-repair

network, and the application of the state's own estimate of the

effectiveness of its decentralized test and repair program.

A. Analysis of the NHA submittal criteria

Transmittal Letter

On March 27, 1996, Virginia submitted an enhanced I/M SIP revision

to EPA, requesting approval action under the NHSDA of 1995 and the CAA

of 1990. The official submittal was made by the appropriate state

official, Peter W. Schmidt, Director of the Department of Environmental

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

Region.

Enabling Legislation

The Commonwealth of Virginia has enabling legislation at the Motor

Vehicle Emissions Control Law at Title 46.2, Subtitle III, Chapter 10,

Article 22 of the Code of Virginia. This legislation provides for the

implementation of a decentralized, test-and-repair program network

utilizing ASM 5015 testing equipment, with testing on a biennial basis.

Proposed Regulations

Prior to submitting its March 27, 1996 submittal, the Commonwealth

of Virginia proposed regulations before its Air Pollution Control Board

in accordance with 40 CFR Part 51, establishing an enhanced I/M

program. The Commonwealth anticipates fully adopting regulations by

October 30, 1996.

Program Description

The Commonwealth's proposed enhanced I/M program applies to the

Northern Virginia metropolitan area, and includes biennial testing of

1968 and newer gasoline powered light-duty vehicles (LDGV) and light-

duty trucks (LDGT) up to 10,000 pounds gross vehicle weight rating

(GVWR) in a fully test-and-repair network. Test methods are to include

a two-mode acceleration simulation mode (ASM) exhaust emissions test as

the primary test method for newer-technology (i.e. 1981 and newer)

LDGVs. Two-speed idle testing will be performed on: LDGTs, older

technology (i.e. pre-1981) LDGVs, and on any LDGV equipped with full-

time four wheel drive or full-time anti-lock brake systems.

Additionally, evaporative system testing is to be performed, including

an evaporative system pressure test for 1973 and newer vehicles, and an

evaporative system purge test (for 1981 and newer vehicles which

receive ASM testing). On 1973 and newer vehicles, a visual inspection

for the presence of certain emissions control components or systems

will eventually be performed. The following systems will be checked:

the air injection system, catalytic converter system, fuel evaporative

emissions control system, positive crankcase ventilation (PCV) system,

exhaust gas recirculation (EGR) system, and the thermostatic air

cleaner system. Finally, a fuel filler cap check for 1973 and newer

vehicles is included. Motorists will be required to pass all aspects of

emissions testing prior to re-registering their vehicles. On-road

testing will be used to ensure that motorists comply with testing

requirements and that vehicle emissions remain below pollution

standards between biennial tests.

Emission Reduction Claim and Basis for the Claim

As Virginia stated in the March 27, 1996 SIP submittal, the

Commonwealth is claiming additional I/M program effectiveness for their

test-and-repair network, when compared to EPA's assumed credit discount

for this type of testing network. Virginia claims that its test-and-

repair network will be 93.8% as effective as an equivalent test-only

network, in terms of hydrocarbon and oxides of nitrogen pollutant

reductions. Per the recently enacted National Highway Systems

Designation Act, the Commonwealth has 18 months from the date of EPA

final interim approval of the March 27, 1996 SIP revision to obtain the

data on operation of its program in order to prove its effectiveness

claims.

The Commonwealth's good faith estimate achieves credit through the

following measures, which are part of the March 27, 1996 SIP submittal:

1. A program effectiveness demonstration of the existing Northern

Virginia I/M program, compiled in conjunction with EPA, entitled

``Study to Demonstrate Increased Emissions Reduction Credit for the

Northern Virginia Test-and-Repair Program'', dated December 21, 1995;

2. A more stringent on-road testing program than required by

federal requirements, through remote sensing and a civil penalty system

for noncompliance;

3. Implementation of a technician training and certification

program and a repair facility certification program; and

4. Improved data entry automation, including bar code readers at

test stations to read bar-coded registration forms to eliminate data

entry errors.

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

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 Virginia's submittal, EPA believes the Commonwealth has

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

For those sections of the I/M rule, or of the CAA, identified below,

with which the state has not yet fully complied, EPA proposes to

conditionally approve the SIP upon receipt of a commitment from the

state to correct each said deficiency. Before EPA can continue with the

interim rulemaking process, the Commonwealth must make a commitment

within 30 days of November 6, 1996 to correct these major SIP

element(s) by a date certain within 1 year of EPA interim approval.

The Commonwealth must correct these major deficiencies by the date

specified in the commitment, or this approval will convert to a

disapproval 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 de minimis

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impact on a state's ability to meet clean air goals. Therefore, the

state need not commit to correct these deficiencies in the short term,

and EPA will not impose conditions on interim approval with respect to

these deficiencies. Virginia must correct these deficiencies during the

eighteen month term of the interim approval, as part of the fully

adopted rules that the Commonwealth will submit to support full

approval of its I/M SIP. So long as Virginia corrects these minor

deficiencies prior to final action on the I/M SIP, EPA concludes that

failure to correct these minor deficiencies in the short term will not

adversely affect EPA's ability to give interim approval to the proposed

I/M program.

Applicability--40 CFR 51.350

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

require states, or portions of states, located in the Ozone Transport

Region (OTR), containing Metropolitan Statistical Areas (MSAs), or

parts thereof, with a population of 100,000 or more (as of 1990) to

implement an enhanced I/M program. The Northern Virginia portion of the

Washington, D.C. MSA is part of the OTR and has a population of 100,000

or more. This area is also classified as a serious ozone nonattainment

area and would therefore be required to implement an enhanced I/M

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

Under the above Clean Air Act requirements, the following

localities in Virginia are subject to the enhanced I/M program

requirements: the Counties of Arlington, Fairfax, Loudoun, Prince

William and Stafford; and the Cities of Alexandria, Fairfax, Falls

Church, Manassas, and Manassas Park. Under the federal I/M rule,

specifically 40 CFR 51.350(b), some rural counties having a population

density of less than 200 persons per square mile based on the 1990

census could be excluded from program coverage provided that at least

50% of the MSA population is included in the program. No counties

within the Northern Virginia MSA qualify for this low population

density exemption, however. The Commonwealth's proposed I/M regulation,

as submitted with the SIP, requires that the enhanced I/M program be

implemented in the localities listed above, and also in Fauquier

County.

Virginia's I/M legislative authority provides the legal authority

to establish the proposed geographic boundaries. The program boundaries

are defined in Virginia's Regulation for the Control of Motor Vehicle

Emissions, located at 9 VAC 5-91-20. That portion of the regulation

defines the ``Northern Virginia Program Area'' to include the counties

identified above. EPA is proposing to find that the geographic

applicability requirements are satisfied. 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. The Virginia I/M enabling

legislation and regulation provides for the program to continue past

the attainment dates for all enhanced I/M program areas in the

Commonwealth.

Virginia's SIP satisfies all the requirements related to 40 CFR

51.350 and is therefore approvable.

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, or ``model'' program design,

on the basis of emission levels expressed in area-wide average grams

per mile (gpm) for certain pollutants. The performance standard is

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 Virginia submitted its SIP, the most

current version was MOBILE5a. Subject localities shall meet the

performance standard for the pollutants which necessitate the enhanced

I/M requirements. In the case of ozone nonattainment areas, the

performance standard must be met for both oxides of nitrogen (NOX)

and hydrocarbons (HC). Thus, the Commonwealth's submittal must meet the

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

M areas in the Northern Virginia area.

In enacting the NHSDA, Congress evidenced an intent to have states

promptly implement I/M programs under interim approval status to gather

the data necessary to support state claims of appropriate credit for

alternative network design systems. By providing that such programs be

submitted within four months of passage of the NHSDA, that EPA could

approve I/M programs on an interim basis, solely upon proposed

regulations, and that such approvals would last only for an 18-month

period, it is clear that Congress anticipated both that these programs

would start quickly and that EPA would act quickly to give them interim

approval.

The Virginia submittal includes the following program design

parameters:

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Parameter Virginia's program

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Network type.................................................................. Decentralized, test-and-repair,

(privatized).

Start date.................................................................... 1983 (existing program); 1997

(new program elements).

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

Model year/vehicle type coverage.............................................. 1968 and newer model year

(1968+) vehicles/gasoline-

powered vehicles (up to 10,000

lbs. gross vehicle weight

rating (GVWR)).

Exhaust emissions test type................................................... Acceleration simulation mode

(ASM2)test.

1981+ vehicles:

LDGV, LDGT, HDGT (i.e. under

8,500 lbs. GVWR).

2-speed idle test.

1968-1980 vehicles

(all vehicles).

1968+ heavy-duty

vehicles (8500-10000 lbs.

GVWR).

1981+ vehicles (0-

8500 lbs GVWR), with full-

time four wheel drive.

All vehicles having

full-time traction control or

ABS.

Emission standards (for 1981+ model year vehicles)............................ Acceleration simulation mode

(ASM2) test.

0.8 gpm HC; 15 gpm

CO; 2.0 gpm NOX [equivalent].

2-speed idle test.

220 ppm HC, 1.2 %

CO.

[[Page 57347]]

Emission control device visual inspection..................................... Air pump, catalyst, EGR system,

evaporative emissions control

system, PCV system, and gas cap

check.

Evaporative system function checks............................................ Pressure decay test

1981+ vehicles.

Purge test 1981+

vehicles.

Stringency rate (pre-1981 vehicle failure).................................... 35%.

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

Compliance rate............................................................... 96%.

Evaluation date............................................................... July 1999.

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Virginia's modeling also includes credit for a mandatory emissions

repair technician training and certification (TTC) program in the

Northern Virginia program area.

In order to determine whether the proposed I/M program meets the

enhanced performance standard, the Commonwealth needed to model its

program to demonstrate that it had met the enhanced performance

standard. Because of delayed I/M program start up and program

reconfiguration, the existing modeling used by the state to demonstrate

compliance with the performance standard is no longer accurate, as it

is based on start up and phase-in of testing and cutpoints that do not

reflect the current program configuration or start dates that the state

will actually implement. Additionally, modeling must be performed to

demonstrate compliance with the performance standard for all affected

localities. Therefore, the Commonwealth must conduct new modeling to

verify that the performance standard will in fact be met. For example,

actual start dates corresponding to each test-type and cutpoints

correct program start up dates should be included in the new modeling.

EPA proposes that interim approval of Virginia's I/M SIP be

conditioned, in part, upon the requirement that the state conduct and

submit the necessary new modeling to demonstrate that the program will

meet the performance standard, by a fixed date within one year from

final interim approval. In order to facilitate conditional approval of

the Virginia SIP, Virginia must submit to EPA a commitment, within 30

days of publication of this notice, to perform this modeling within the

time frame set forth above. If the state fails to commit to perform

this re-modeling, EPA proposed in the alternative to disapprove the

SIP. If the state fails to perform and submit the new modeling by the

date committed to, EPA proposes that the interim approval will convert

to a disapproval upon a letter from EPA indicating that the state has

failed to meet the conditions of approval by failing to timely submit

the modeling and to demonstrate compliance with the performance

standard.

Network Type and Program Evaluation--40 CFR 51.353

The enhanced program shall 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 Act and the

federal I/M rule. The SIP shall include details on the program

evaluation and shall include a schedule for submittal of biennial

evaluation reports, data from state monitored or administered mass-

based, transient emissions testing 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. Virginia's SIP provides for

a decentralized, test-and-repair network design, which will be operated

in multiple private inspection stations. Testing will be required on a

biennial basis.

In addition, the federal I/M rule requires the state to demonstrate

that the program meets the performance standard by fixed evaluation

dates. The first such date is January 1, 2000. However, few state

programs will be able to meet the performance standard by then, as a

result of delays in program start-up and the phased-in nature of

various testing requirements. EPA believes that based on the provisions

of the NHSDA, the evaluation dates in the current I/M rule have been

superseded. Congress provided in the NHSDA for state development of I/M

programs that would start significantly later than the start dates in

the current I/M rule. Consistent with Congress's intent exhibited in

the NHSDA with regard to program start-up, such programs by definition

will not achieve full compliance with the regulatory performance

standard by the beginning of the year 2000.

Therefore, EPA has concluded that the NHSDA superseded the start

date requirements of the I/M rule, but that states should still be

required to start their programs as soon as possible, which EPA has

determined would be by no later than November 15, 1997. EPA now

believes that pursuant to the NHSDA, the initial evaluation date should

be January 1, 2002. This evaluation date will allow states to fully

implement their I/M programs and to complete one cycle of testing at

full cutpoints in order to demonstrate compliance with the performance

standard.

The Commonwealth's SIP contains a commitment to perform an ongoing

program evaluation, consisting of administration or oversight of

inspections by Department of Environmental Quality (DEQ) personnel of

at least 0.1% of the annually subject vehicle population. EPA

interprets this broad commitment to indicate that Virginia staff will

merely oversee or conduct testing in actual test stations using state-

approved I/M test methods. This program evaluation does not comply with

the evaluation protocol set forth by EPA in 40 CFR 51.353(c).

The Environmental Council of States (ECOS) has formed a committee

to develop an evaluation protocol to be used by states in order to

evaluate overall program effectiveness. The ECOS group has agreed that

states must follow the long term program evaluation defined in 40 CFR

51.353. 40 CFR 51.353 requires that mass-emission based, transient

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

submittal also fails to address other program evaluation elements

specified in 40 CFR 51.353(b)(1) and (c), including a program

evaluation schedule, a protocol for the evaluation testing, and a

system for collection and analysis of program evaluation data.

EPA, therefore, proposes to conditionally approve Virginia's SIP

based on receiving the Commonwealth's commitment within 30 days to

submit to EPA by a date certain within twelve months of the final

interim ruling, the final Virginia I/M regulation which requires METT

be performed on 0.1% of the subject fleet each year as per 40 CFR

51.353(c)(3) and meets the program evaluation elements as specified in

40 CFR 51.353(c). If this condition is not

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met EPA will promptly issue a letter to the Commonwealth indicating

that the conditional approval has been converted to a disapproval.

Adequate Tools and Resources--40 CFR 51.354

The federal I/M rule requires the Commonwealth 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 a state demonstrates that the level of

funding can be maintained. Reliance upon funding from a state or local

general fund is not acceptable, unless doing otherwise would be a

violation of the state's constitution. The SIP shall include a detailed

budget plan which describes the source of funds for personnel, program

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

shall also detail the number of personnel dedicated to the quality

assurance program, data analysis, program administration, enforcement,

public education and assistance and other necessary functions.

Virginia DEQ's I/M oversight program will be funded through a per

vehicle I/M inspection fee, which is currently set at $20; along with a

separate administrative registration fee of $2 per vehicle. The

administrative fee will be deposited in a dedicated fund, to be used

solely for program oversight.

The SIP contains a detailed budget synopsis describing the

personnel dedicated to the quality assurance program, program

oversight, data collection and analysis, enforcement, public education,

and other necessary functions. Virginia's SIP indicates that this level

of personnel resources is adequate to properly oversee the program, and

that private contract personnel may be utilized, as needed, for special

program functions (e.g. temporary audit staff, on-road testing

contractors, etc).

The Virginia submittal meets the requirements for adequate tools

and resources, as set forth in the federal I/M regulations. Therefore,

this portion of Virginia's SIP is approvable.

Test Frequency and Convenience--40 CFR 51.355

The enhanced I/M performance standard assumes an annual testing

frequency; however, alternative 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.

Section 46.2-1177 of Virginia's Motor Vehicle Emissions Control Law

and Virginia's proposed I/M regulation provide the legal authority to

implement the program with a biennial testing frequency. Virginia's

proposed enhanced I/M regulation provides for a biennial testing, with

initial testing for new vehicles required two years after initial

registration. The Commonwealth has submitted modeling to demonstrate

this biennial program's equivalency to the performance standard.

However, this modeling analysis did not fully satisfy the requirements

of 40 CFR 51.351. Upon satisfaction of the re-modeling condition in

today's rulemaking action pertaining to the requirements of 40 CFR

51.351, Virginia will have satisfied the equivalency of their biennial

testing scheme to the annual scheme contained in the model program.

Virginia's SIP lacks a detailed description of how emissions

testing is scheduled for subject vehicles and the test selection scheme

for assigning testing under the biennial program. Additionally, the SIP

does not describe how the test frequency will be integrated with the

registration denial motorist enforcement process. These elements

constitute a minor deficiency in Virginia's SIP, which must be

corrected in the final I/M SIP revision submitted by the end of the 18-

month interim period. This portion of Virginia's SIP otherwise

satisfies the requirements of 40 CFR 51.355, and is therefore

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 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 I/M rule 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 not registered in the area. Additionally, the SIP must

contain a description of any special testing 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 Northern Virginia enhanced I/M program requires coverage of all

1968 and newer, private or publicly owned, gasoline-powered vehicles up

to 10,000 pounds gross vehicle weight rating (GVWR) which are

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

Additionally, affected motor vehicles which are primarily operated on

or commute to a state, local or federal government facility, are also

subject to testing. As of the date of the SIP submittal, Virginia

estimates that approximately 1.25 million vehicles will be subject to

enhanced testing in the program area.

Virginia's proposed regulation exempts the following vehicles:

motorcycles, diesel-fueled vehicles, electric-powered vehicles, clean-

fueled vehicles (as defined by Sec. 46.2-2 and 46.2-100 of the Code of

Virginia), and vehicles registered as antiques. Additionally, Virginia

SIP provides that testing may be deferred for vehicles (up to four

model years old) held for sale by licensed car dealers, for up to one

year from the date of sale. Section 46.2-1178 of the Virginia Motor

Vehicle Control Law authorizes testing for the vehicles covered by

Virginia's regulation, and Sec. 46.2-1180 of the Motor Vehicle Control

Law provides for the exemptions in the regulation, as listed above.

This level of vehicle coverage is approvable, provided the performance

standard can be demonstrated to have been met with this level of

exemptions.

Virginia's SIP requires fleet vehicles, both public and privately

owned, to be

[[Page 57349]]

tested. Virginia's regulation allows fleet owners having 20 or more

vehicles to self test, provided they are licensed to do so by the

Commonwealth. These fleet testing stations are subject to the same

testing procedures and the same quality control procedures as official

public testing stations. The fleet testing program is approvable, as it

meets the requirements of 40 CFR 51.356(a).

Virginia has not fully accounted for all of its testing exceptions,

as a percentage of the entire subject fleet, in the SIP. Any exceptions

to testing requirements must be accounted for in the emissions

reductions analysis. Virginia has committed to better account for the

number of excepted vehicles after the program commences operation.

Since the exceptions are not expected to comprise a significant portion

of the subject fleet, this is considered by EPA to be a minor

deficiency. The state must better estimate these exceptions and account

for them in their performance standard modeling demonstration prior to

the end of the 18-month interim approval period.

This portion of Virginia's SIP otherwise satisfies the requirements

of 40 CFR 51.356, and is approvable.

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 documents entitled ``High-Tech I/M Test

Procedures, Emission Standards, Quality Control Requirements, and

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

``Acceleration Simulation Mode Test Procedures, Emission Standards,

Quality Control Requirements, and Equipment Specifications'', EPA-AA-

RSPD-IM-96-2, dated July 1996. 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 section 51.357(d).

For the Northern Virginia enhanced program, Virginia has proposed a

two-mode acceleration simulation mode (ASM2) exhaust test as its

primary test method for newer-technology (i.e. 1981 and newer) light-

duty vehicles. This test actually consists of two separate tests,

referred to as ASM 5015 and ASM 2525. Two-speed idle testing will be

performed on subject heavy-duty vehicles, older technology (i.e. pre-

1981) light-duty vehicles, and on vehicles with full-time four wheel

drive or full-time anti-lock brake systems. Additionally, evaporative

system testing consisting of pressure testing (for 1973 and newer

vehicles) and purge testing (for 1981 and newer vehicles receiving ASM

testing) are included in the SIP. Virginia's regulation also calls for

a visual inspection for the presence, on 1973 and newer vehicles, of

certain emissions control components or systems, including the: air

injection system, catalytic converter system, fuel evaporative

emissions control system, positive crankcase ventilation (PCV) system,

exhaust gas recirculation (EGR) system, and the thermostatic air

cleaner system. Finally, the SIP calls for a fuel filler cap check for

1973 and newer vehicles.

The Commonwealth's regulation requires vehicles that have been

altered from the original certified configuration to which they were

manufactured (i.e. vehicles in which the engine or fuel type has been

switched) to be tested to their originally certified design.

The Commonwealth's SIP does not contain detailed ASM2 test

procedures that are acceptable to EPA. The Commonwealth's regulation

incorporates by reference the appropriate section of the Code of

Federal Regulations (CFR) for I/M test procedures for 2-speed idle

testing and for evaporative pressure and purge testing. However, the

Virginia SIP allows for possible alternative evaporative system tests

to those referenced by the Commonwealth's regulation. No test

procedures are specified for any alternative evaporative system test,

with the exception of a fuel filler cap check procedure. In order for

the Commonwealth to include alternative evaporative tests in the

performance standard demonstration and to require testing with these

tests, the SIP must contain EPA approved test procedures for such

tests. The final SIP must include detailed, approvable test procedures

for all test methods to be utilized in the enhanced I/M program.

The SIP includes hydrocarbon (HC), carbon monoxide (CO), and oxide

of nitrogen (NOX) pass/fail standards (or ``cutpoints'') for the

ASM2 test for each subject model year and vehicle type. HC and CO

cutpoints are provided in Virginia's regulation for the 2-speed idle

test procedure for all subject model year and types of vehicles.

Standards will be phased-in over one biennial testing cycle, with final

standards to apply at that time. EPA must receive all test procedures,

specifications and standards before EPA can proceed with a final

interim rulemaking action. EPA recently (August, 1996) released ASM

test procedures, specifications and standards. In light of the

finalization of these standards, EPA expects the Commonwealth to submit

its ASM test procedures, specifications and standards in the near

future.

If within 30 days of the proposed interim rulemaking, the

Commonwealth submits to EPA a commitment to adopt approvable test

procedures for its two-mode ASM test, accompanied by a draft procedures

document or a revised proposed regulation referencing or containing

approved procedures, then EPA proposes to conditionally approve this

portion of the SIP. The Commonwealth's commitment must include a date

certain (prior to the date by which testing is to commence), within

twelve months of the final interim ruling, by which the final Virginia

I/M regulation or test procedure document will be formally submitted.

If within 30 days of the proposed interim ruling, the above submittal/

commitment requirement has not been met, then this notice proposes in

the alternative to disapprove the Virginia I/M SIP. If the condition to

submit the final regulation or test procedures document which

incorporates an approvable ASM2 test procedure is not met by the date

committed to by the Commonwealth from the final interim ruling, then

EPA will promptly issue a letter to the Commonwealth indicating that

the conditional approval has been converted to a disapproval.

Finally, Virginia's regulation must require that retests conducted

after the performance of repairs shall include the performance of all

emissions tests and for all pollutants for which the vehicle was

originally subject, not merely the test and pollutant for which the

vehicle initially failed. This is a minor deficiency, and must be

corrected prior to the end of the 18-month interim approval period.

Test Equipment--40 CFR 51.358

Computerized test systems are required for performing any emission

measurement on subject vehicles. The federal I/M rule requires that the

state 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, the

required features, and written acceptance testing criteria and

procedures.

The Commonwealth's submittal lacks written technical specifications

for all test equipment to be used in the program. The Commonwealth's

regulation incorporates by reference 40 CFR part 51, subpart S (i.e.,

the I/M program requirements rule) and 40 CFR

[[Page 57350]]

part 85, subpart W (i.e., emissions performance warranty short tests

rule). However, the regulation does not specifically include or

reference EPA approved I/M test equipment specifications. Neither, does

the SIP does not contain specifications to address performance features

and functional characteristics of the computerized test systems. The

Commonwealth's rule does, however, require the use of computerized test

systems.

Virginia must submit written test equipment specifications for the

ASM2 test equipment and 2-speed idle test equipment, as well as the

specifications for the necessary pressure and purge, and fuel filler

cap check equipment. In light of the recent release of ASM test

equipment specifications, in August 1996, EPA expects that the

Commonwealth will adopt final test specifications in the near term.

If within 30 days of the proposed interim rulemaking, the

Commonwealth submits to EPA a commitment to adopt approvable test

equipment specifications for all the I/M test procedures contained in

its regulation, accompanied by draft specifications documents or by a

revised proposed regulation referencing or containing approved test

equipment specifications, then EPA proposes to conditionally approve

this portion of the SIP. The Commonwealth's commitment must include a

date certain (prior to the date by which testing is to commence),

within twelve months of the final interim ruling, by which the final

Virginia I/M regulation or test equipment specifications documents will

be formally submitted. If within 30 days of the proposed interim

ruling, the above submittal/commitment requirement has not been met,

then this notice proposes in the alternative to disapprove the Virginia

I/M SIP. If the condition to submit the final regulation or test

procedure document which incorporates approvable test equipment

specifications is not met by the date certain within twelve months (by

which the Commonwealth commits to submit final test procedures) from

the final interim ruling, EPA will promptly issue a letter to the

Commonwealth indicating that the conditional approval has been

converted to a disapproval.

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 Virginia submittal lacks a description of

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.

Virginia has committed in its SIP to develop and submit to EPA

quality control procedures to ensure that the Commonwealth provides its

motorists with accurate emissions test results. Some aspects of record

keeping and document security are addressed in Virginia's regulation.

However, the SIP presently does not satisfy quality control

requirements.

This is considered a minor deficiency, which must be corrected

prior to expiration of the 18-month interim approval period. Virginia

must develop quality control procedures, to be addressed within the

Commonwealth's I/M regulation, test equipment specifications, quality

control procedures manual, or other ordinance or documents to satisfy

all the quality control requirements of 40 CFR 51.359.

Waivers and Compliance Via Diagnostic Inspection--40 CFR 51.360

The federal I/M rule 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. EPA recently amended the I/M rule to allow waivers to be

phased-in after commencement of testing, but no later than January 1,

1998 and to allow repairs conducted by recognized repair technicians up

to 60 days prior to testing to apply towards the waiver expenditures.

Waivers may 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 provides states the option to allow 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.

Virginia's Motor Vehicle Emissions Control Law and the

Commonwealth's proposed I/M regulation provide the necessary authority

to issue waivers, set and adjust cost limits, administer and enforce

the waiver system, and to set a $450 waiver cost limit (adjusted

annually by the CPI, as compared to the CPI in 1989).

Virginia's regulation phases in the waiver limits, beginning with

the commencement of testing, over one biennial test cycle, to the

federal limit by July 1, 1998. EPA is approving this phase-in schedule,

because the commencement of I/M testing was delayed by the deadlines

set forth in the NHSDA. EPA contends that this is consistent with its

interpretation that start dates and evaluation dates may be extended by

approximately two years under authority of the NHSDA, and phasing in

the waiver over a similar time period is appropriate. Also, EPA's I/M

rule provides one cycle to phase in the waiver after the start of

testing, so it is acceptable for Virginia to phase in the waiver over

one cycle after the start date set forth by the NHSDA.

The Commonwealth's proposed regulation allows emission inspection

station inspectors to issue waivers. The I/M rule, 40 CFR 51.360(c)(1),

only allows the state or a single contractor to issue waivers. This is

a minor deficiency and must be corrected in the final I/M SIP revision

submitted by the end of the 18-month interim period.

The Commonwealth has set a 3% maximum waiver rate, as a percentage

of failed vehicles, for both pre-1981 and 1981 and later vehicles. The

Commonwealth has committed, per 40 CFR 51.360, to take corrective

action if the waiver rate exceeds 3%. This waiver rate was used in the

Commonwealth's existing performance standard modeling demonstration,

and should be maintained in the new performance standard modeling

demonstration.

Otherwise, the Commonwealth's SIP satisfies the waiver requirements

of 40 CFR 51.360, and is approvable.

Motorist Compliance Enforcement--40 CFR 51.361

The federal I/M rule requires that compliance 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

[[Page 57351]]

to be used for modeling purposes and to be maintained in practice.

Chapter 10, Sec. 46.2-1183 of the Motor Vehicle Emissions Control

Law provides the legal authority to implement registration denial

motorist enforcement. Virginia's I/M regulation requires that motorists

obtain an emissions certificate demonstrating that they have passed a

test or received a waiver in order to obtain a vehicle registration

from the Department of Motor Vehicles (DMV). The Virginia SIP commits

to maintain a compliance rate of 96%, which was used in the performance

standard modeling demonstration.

The motorist compliance enforcement program is to be implemented in

part by the DMV, which is the lead agency for registration issuance.

The Department of State Police and local police authorities are charged

with enforcement against motorists who fail to comply with registration

requirements.

The Virginia SIP does not address mechanisms by which motorists

will be notified of testing, readily visible means of determining

compliance with the I/M program, penalties for motorists failing to

comply with motor vehicle testing and registration, or mechanisms to

prevent vehicle owners from avoiding testing by manipulating

registrations. These, along with all other requirements of 40 CFR

51.361 must be addressed in the SIP. Virginia has committed in the SIP

to prepare a registration procedures manual to govern registration

aspects of this portion of the program. It is expected that some of

these requirements will be addressed in that procedures document.

The requirements listed above are relatively minor in nature. These

requirements must be satisfied prior to the end of the 18-month interim

approval period. Virginia's SIP otherwise satisfies the requirements of

40 CFR 51.361, and is approvable.

Motorist Compliance Enforcement Program Oversight--40 CFR 51.362

The federal I/M rule 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 must include quality control and quality assurance procedures

to be used to insure the effective overall performance of the

enforcement system. An information management system must be

established which will characterize, evaluate and enforce the program.

Virginia has not developed its procedures manual for its oversight

program to ensure motorist compliance. Virginia must submit a

procedures manual which satisfies the quality control and information

management responsibilities of the motorist compliance enforcement

oversight program section of the federal I/M rule, at 40 CFR 51.363.

For a complete list of specific deficiencies with respect to 40 CFR

51.362, refer to the technical support document (TSD) for this action,

found in the EPA docket. These deficiencies are minor in nature, and

must be addressed prior to the end of the 18-month interim approval

period.

Other than the deficiencies noted above, this portion of Virginia's

SIP satisfies the requirements of 40 CFR 51.362, and is approvable.

Quality Assurance--40 CFR 51.363

An ongoing quality assurance program shall be implemented to

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

The program shall include covert and overt performance audits of the

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

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

auditors. A description of the quality assurance program which includes

written procedure manuals on the above discussed items must be

submitted as part of the SIP.

Virginia's SIP contains a detailed description of the elements of

the quality assurance program and an appendix describing quality

assurance and audit procedures. Virginia commits to conduct at least

one covert audit per year per inspection bay, and at least two overt

audits per year per inspection bay. However, the procedures manuals for

use by Commonwealth quality assurance auditors have not yet been

completed. These manuals must include detailed covert and overt audit

procedures to be used by the Commonwealth for program oversight

purposes. Virginia has committed to complete these audit manuals by

December 1, 1996.

This lack of detailed audit procedures manuals is a minor

deficiency, and therefore the Commonwealth must complete and submit

these manuals by the end of the 18-month interim approval period.

The Virginia SIP otherwise meets the quality assurance requirements

of section 40 CFR 51.363, and is approvable.

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 rule 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.

Virginia's regulations establish a general enforcement process,

including: issuance of notices of violation (NOVs), hearing processes,

and avenues of appeal. Virginia has several avenues for adjudicating

violation cases--including formal fact findings, formal DEQ hearings,

and the ability to suspend stations or inspectors without a hearing, in

certain instances. Virginia's regulation provides that penalties may be

imposed against station owner permittees or against stations, as well

as against inspectors.

In the cases where testing privileges are suspended, inspectors

must demonstrate their ability to properly perform test procedures

before testing privileges may be restored. Suspended inspectors are

barred from participating in inspection operations during the term of

the suspension.

Virginia's SIP includes provisions to maintain and submit to EPA

records of all enforcement actions, including: warnings, violations,

civil fines, suspensions, and license revocations, and violations. The

DEQ will maintain this information in a ``Violation History Report''

for each station and each inspector.

The Virginia SIP includes legal authority to establish and impose

penalties against stations and inspectors participating in the enhanced

I/M program. The Commonwealth has not yet adopted and submitted a

penalty schedule for inspectors and test stations in the SIP, however

the SIP contains a commitment to do so prior to program

[[Page 57352]]

start-up. The lack of a penalty schedule is a minor deficiency, and

Virginia must adopt and submit an acceptable penalty schedule prior to

the end of the 18-month interim approval period.

With the exception of the lack of a penalty schedule, this

submittal meets the enforcement requirements of this section of the I/M

rule.

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.

Virginia's I/M regulation does not indicate specific data elements

to be entered by inspectors and reported to the Commonwealth. However,

the regulation does require the inspector to accurately identify and

enter vehicle and owner information for the specific test.

The Commonwealth does commit to submit annual reports containing

summaries of test data, quality assurance, and quality control

information based upon program test data. A commitment to submit

biennial reports to EPA which adequately address reporting requirements

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

The submittal does not require that the specific data elements

identified in 40 CFR 51.365(a) be collected and reported to the

Commonwealth. This is a minor deficiency which must be corrected prior

to the end of the 18-month interim approval period. This requirement

can be satisfied by Virginia requiring these data elements to be

collected. Two avenues for this requirement are via the regulation, or

through the test equipment specifications (i.e. by requiring the test

equipment to prompt the inspector to enter these elements and by

blocking testing if the data is not entered).

With the exception of a requirement for collection of the specific

data elements, described above, the Virginia SIP meets the data

analysis and reporting requirements of this section of the I/M rule.

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

rule 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.

Virginia's SIP commits to submit annual statistical data summaries

of activities related to testing, quality assurance, quality control,

and enforcement programs, beginning January 1, 1998, containing data

from the previous calendar year. Since Virginia's program is scheduled

to begin in the month of July, not January, this reporting schedule is

acceptable. Virginia's SIP contains an appendix (Appendix 12) which

describing program statistics specific data elements in these annual

reports. The data elements specified comply with the requirements of 40

CFR 51.366.

For a list of the specific data elements to be submitted in each of

the annual reports, refer to the TSD for this rulemaking action.

Inspector Training and Licensing or Certification--40 CFR 51.367

The federal I/M rule requires all inspectors to be formally trained

and licensed or certified to perform inspections.

Virginia's SIP contains regulatory authority requiring that program

inspectors complete DEQ-approved formal training courses and then pass

a qualification test, prior to becoming a licensed inspector. A

description of the written and hands-on tests that inspectors are

required to pass are described in Virginia's regulation and in Appendix

13 of the SIP. The SIP also addresses requirements for obtaining an

inspector's license and describes the licensing process. A list of

elements to be covered by Virginia's inspector training program is

included in Virginia's I/M rule, and is detailed in the TSD for this

action.

Virginia's regulation requires inspectors to be relicensed every

three years, and requires inspectors to undergo the same training and

hands-on testing required to initially obtain a license, in order to be

relicensed. EPA rules require relicensing every two years, however,

since Virginia's requirements are stricter than federal rules require,

EPA considers the Commonwealth's three-year license period to be

acceptable.

The Virginia SIP satisfies the inspector training and licensing

requirements of 40 CFR 51.367, and is approvable.

Public Information and Consumer Protection--40 CFR 51.368

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

information and consumer protection programs.

Virginia's plan to develop public information and consumer

protection plans is described in SIP, and elements to be included in

those plans are listed in a ``Public Information Plan'' contained in

Appendix 15 of the SIP. Virginia commits in the SIP to complete

development of the actual plan by January 1, 1997.

The Commonwealth intends to operate public referee stations, where

testing disputes can be resolved. Additionally, the Commonwealth

intends to operate consumer complaint hotline services to subject

motorists. Additionally, Virginia describes strategies to educate the

public on the I/M program in a public awareness plan contained in the

SIP. Finally, Virginia intends to make statistical information

available to the public regarding the repair performance effectiveness

of repair facilities within the program area, per 40 CFR 51.369. For

details regarding elements to be included in the ``Public Information

Plan'', refer to the TSD for this action or to the SIP narrative

document contained in the SIP.

The Virginia SIP submittal meets the public information and

consumer protection requirements of the I/M rule, however, Virginia

must finalize and formally submit its ``Public Information Plan''. This

is a minor deficiency, which must be corrected prior to the end of the

18-month interim approval period. Other than the deficiency cited

above, Virginia's SIP satisfies the requirements of 40 CFR 51.368, and

is approvable.

Improving Repair Effectiveness--40 CFR 51.369

Effective repairs are the key to achieving program goals. The

federal

I/M rule 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.

[[Page 57353]]

Virginia's SIP commits to track the effectiveness of repair

facilities in the conducting emissions repairs under the enhanced I/M

program. The SIP also contains a commitment to provide to the affected

public the minimum performance monitoring information required by 40

CFR 51.369. A completed repair form, will be required prior to

motorist's receipt of a retest. However, the SIP does not contain a

detailed plan for performance monitoring, per 40 CFR 51.369(b).

Virginia has established in its SIP that insufficient emissions

repair training exists and commits to work with vocational schools to

provide for availability of better training. Virginia also commits in

its SIP to establish or operate a repair technician hotline to assist

repair technicians and to provide technical repair information for

emissions-related repairs. A description of repair training available

in the community must be submitted.

The Virginia SIP meets the requirements for improving repair

effectiveness, with the exception of a repair performance monitoring

program, per 40 CFR 51.369(b) and a description of available training,

per 40 CFR 51.369(c). However, this is a minor deficiency and must be

corrected prior to the end of the 18-month interim approval period in

order for EPA to fully approve the I/M SIP revision.

Other than the minor deficiencies cited above, this requirement

satisfies the requirements of 40 CFR 51.369, and is approvable.

Compliance With Recall Notices--40 CFR 51.370

The federal I/M rule requires states to establish methods to ensure

that vehicles that are subject to enhanced

I/M and are included in an emission related recall receive any recall

related repairs prior to receiving an emission test and renewing

vehicle registration.

Virginia's I/M regulation requires that motor vehicles show proof

of compliance with emissions-related recalls prior to receiving an

emissions inspection under the enhanced I/M program. Per EPA's I/M

rule, Virginia must maintain a database of outstanding emissions-

related recalls for vehicles registered in the I/M program area.

Motorists having vehicles which are subject to an outstanding recall

must show proof of compliance with the recall in order to obtain an

emissions test.

Virginia has not yet completed its recalls compliance procedures,

since EPA has not completed its guidance on emissions recall

compliance. The Commonwealth has committed in its SIP to complete its

recall procedures within six months of EPA's completion of recall

guidance. These procedures must address a process for notifying

motorists of outstanding recalls, a means of identifying vehicles

having an unresolved recall at I/M testing stations, quality control

methods to ensure recall compliance, and a database system to identify

and track vehicles subject to outstanding recalls. Additionally,

Virginia must prepare and submit annual reports with statistical

information regarding compliance with emissions recalls in the enhanced

I/M program area.

Virginia lacks only detailed recall compliance procedures and a

commitment to annually report recall compliance information to EPA,

therefore, this is a minor deficiency. However, Virginia must correct

this deficiency prior to the end of the 18-month interim approval

period. Otherwise, Virginia's SIP satisfies the requirements of 40 CFR

51.370.

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 enhanced 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.

Section 46.2-1178.1 of the Virginia Motor Vehicle Emissions Control

Law provides Virginia legal authority to conduct on-road testing and to

assess civil penalties against motorists whose vehicles emit over

regulatory standards set by the Commonwealth for on-road testing,

unless the vehicle passes or is waived under an out-of-cycle emissions

test.

Virginia's I/M regulation sets forth a description of the on-road

testing program and the emissions standards cars must meet to pass this

testing. On-road testing in Virginia's program will be conducted via

either remote sensing equipment, or by roadside pullover and a two-

speed idle test. Vehicles must comply with standards set by Virginia

for relevant pollutants, including CO for remote sensing tests, and HC

and CO for two-speed idle tests. Virginia will engage a contractor, as

needed, to conduct roadside testing to satisfy the requirements of 40

CFR 51.371.

Under Virginia's proposed program, vehicles which fail on-road

testing standards may be retested (outside of the normal biennial

cycle) and repaired, or waived, to avoid civil penalties. Motorists'

vehicles that receive a waiver from regularly scheduled I/M testing are

exempt from civil penalties related to on-road testing. Motorists

having vehicles that fail an on-road test, who either do not obtain a

follow-up test, or whose vehicles fail the test and are not repaired to

pass an emissions test are subject to the penalties set forth in

Virginia's regulation.

The Commonwealth's SIP submittal does not, however, contain

sufficient information regarding on-road testing resource allocations,

including information on staffing requirements for both the

Commonwealth and the private testing vendor. Additionally, the SIP

lacks methods for analyzing and reporting the results of on-road

testing. These are, however, minor deficiencies and must be corrected

in the final I/M SIP revision submitted by the end of the 18-month

interim period, either by submitting an on-road testing procedures

manual or the request for proposals (RFP) for the contractor hired to

operate the on-road testing program.

Otherwise, this submittal satisfies the requirements of 40 CFR

51.371, and is approvable.

State Implementation Plan Submissions/Implementation Deadlines--40 CFR

51.372-51.373

The federal I/M rule requires states to provide in their I/M SIP a

schedule for implementation of the enhanced I/M program described in

the SIP, including interim milestone dates leading to mandatory

testing. A list of milestones which must be included, at a minimum, is

contained in 40 CFR 51.372. Additionally, 40 CFR 51.373 sets deadlines

by which I/M programs must be adopted and put in place. However,

language in the recently enacted National Highway Systems Designation

Act, granted states additional time to adopt and submit I/M SIPs to

satisfy the requirements of the Clean Air Act. States were to submit

SIPs, including proposed regulations if necessary, to EPA by March 27,

1996, and were granted eighteen months from the date of EPA interim

approval to establish the effectiveness of the program. The NHSDA

deadlines supersede any program implementation deadlines contained in

40 CFR 51.373.

Virginia's SIP contains a list of milestones and associated dates.

Under this schedule, testing to include all aspects of the new enhanced

I/M program, using phase-in test standards and a phased in waiver

limit, is to commence on July 1, 1997. Final test

[[Page 57354]]

procedures and test equipment specifications are to be adopted by

October 1, 1996. All official testing inspectors and stations are to be

licensed by June 1, 1997. Virginia's waiver cost limit will be fully

phased in over one biennial test cycle, to be at the full federal limit

by July 1, 1998. Final testing standards, or cutpoints, will replace

the phase-in standards at the beginning of the second biennial test

cycle, July 1, 1999.

Virginia has not listed dates by which all outstanding procedures

documents are to be finalized and submitted to EPA. Virginia has made

commitments to complete many of these procedures throughout the SIP.

Milestones and dates for completion of any outstanding procedures

documents should be listed in this portion of the SIP. This is however,

a minor deficiency, which the Commonwealth must complete prior to the

end of the 18-month interim approval period.

Otherwise, Virginia's SIP satisfies the requirements of 40 CFR

51.372 and 51.373, and is therefore approvable.

III. Discussion for Rulemaking Action

Today's notice of proposed rulemaking begins a 30 day clock for the

state to make a commitment to EPA to correct the major elements of the

SIP that EPA considers deficient. These elements include the: enhanced

I/M performance standard modeling demonstration, program evaluation

methodology, I/M test procedures, and I/M test equipment

specifications. If the Commonwealth does not make such commitments

within 30 days, EPA today is proposing in the alternative that this SIP

revision be disapproved.

Within 30 days, the Commonwealth must make a commitment to EPA to

correct these deficiencies by a date certain within 1 year of the

interim approval date, or in certain cases a date certain prior to the

commencement of testing.

If the Commonwealth makes the commitment within 30 days, EPA's

conditional approval of the plan will last until the date by which the

state has committed to cure all of the deficiencies. EPA expects that

within this period Virginia will not only correct the deficiencies as

committed to by the Commonwealth, but that Virginia will also begin

program start-up within 12 months of the final interim rulemaking. If

the state does not correct deficiencies and implement the interim

program by November 15, 1997, EPA is proposing in this notice that the

interim approval will convert to a disapproval after a finding letter

is sent to the state.

IV. Explanation of the Interim Approval

At the end of the 18-month interim period, the approval status for

this program will automatically lapse pursuant to the NHSDA. It is

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

demonstration of the program's effectiveness using an appropriate

evaluation criteria. As EPA expects that these programs will have

started on or before November 15, 1997, the Commonwealth will have at

least six months of program data that can be used for the

demonstration. If the Commonwealth fails to provide a demonstration of

the program's effectiveness to EPA within eighteen months of the final

interim rulemaking, the interim approval will lapse, and EPA will be

forced to disapprove the state's permanent I/M SIP revision. If the

Commonwealth's program evaluation demonstrates a lesser amount of

emission reductions actually realized than were claimed in the state's

previous submittal, EPA will adjust the Commonwealth's credits

accordingly, and use this information to act on the state's permanent

I/M program.

V. Further Requirements for Permanent I/M SIP Approval

At the end of the 18-month period, final approval of the

Commonwealth's plan will be granted based upon the following criteria:

1. Virginia has complied with all the conditions of its commitment

to EPA,

2. EPA's review of the Commonwealth's program evaluation confirms

that the appropriate amount of program credit was claimed by the state

and achieved with the interim program,

3. Final program regulations are submitted to EPA, and

4. The Virginia I/M program meets all of the requirements of EPA's

I/M rule, including those deficiencies found minor, or de minimis, for

purposes of interim approval.

VI. EPA's Evaluation of the Interim Submittal

EPA's review of the Commonwealth's SIP indicates that with

satisfaction of the conditions described above, the Commonwealth will

have adopted an enhanced I/M program in accordance with the

requirements of the NHSDA. EPA is proposing conditional, interim

approval of the Virginia SIP revision for an enhanced I/M program,

which was submitted on March 27, 1996. EPA is soliciting public

comments on the issues discussed in this notice or on other relevant

matters. These comments will be considered before taking final interim

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 conditional interim approval of this revision to

the Virginia SIP for an enhanced I/M program if a commitment is

received from the Commonwealth within 30 days of the date of this

proposal, to correct the identified deficiencies by a date certain

within one year from the date of the final interim approval action.

The conditions for approvability are as follows:

(1) Virginia must formally submit, by a date certain within one

year from interim conditional approval, new modeling to demonstrate

that the program will meet the enhanced I/M performance standard by the

first program evaluation date, for all localities which are part of the

enhanced I/M program. The Commonwealth's revised modeling must

correspond to the actual I/M program configuration, including actual

test methods and start dates for all I/M program tests, actual

cutpoints to be in-place for the evaluation year, and all other program

assumptions as they exist in the SIP.

(2) The Commonwealth must submit to EPA as a SIP amendment by a

date certain within twelve months of the final interim ruling, the

final Virginia I/M regulation which requires that mass-based emission,

transient cycle testing be performed on 0.1% of the subject fleet each

year, per 40 CFR 51.353(c)(3). This program evaluation scheme must

satisfy the program evaluation elements specified in 40 CFR 51.353(c),

including a program evaluation schedule, a protocol for the testing,

and a system for collection and analysis of program evaluation data;

(3) The Commonwealth must submit to EPA a commitment (along with a

draft procedures document or revised draft regulation containing these

procedures) to adopt approvable test procedures for its two-mode ASM

test, within 30 days. Then by a date certain within one year and prior

to the start of enhanced testing, the Commonwealth must submit the

final Virginia I/M regulation or test procedures document which

satisfies this requirement. If any alternative evaporative system test

procedures are to be utilized, testing procedures for those tests must

also be formally submitted at that time;

(4) The Commonwealth must submit to EPA, within 30 days, a

commitment

[[Page 57355]]

(along with a draft test equipment specifications or revised draft

regulation containing draft test equipment specifications) to adopt

final test equipment specifications. Then by a date certain within one

year and prior to the start of enhanced testing, the Commonwealth must

submit the final test equipment specifications for all test equipment

to be used in the program. This includes specifications for equipment

to perform the following tests: ASM2, two-speed idle, evaporative

system pressure testing, and evaporative system purge testing. These

specifications must be EPA-approved and satisfy the requirements of 40

CFR 51.358.

If the Commonwealth fails to satisfy the above conditions by a date

certain within one year, EPA proposes that the conditional interim

approval will convert to a disapproval upon a letter from EPA

indicating that the Commonwealth has failed to meet its conditions for

interim approval.

The following minor deficiencies must be corrected in the final I/M

SIP revision submitted by the end of the 18 month interim period:

(1) The SIP lacks a detailed description of the elements to satisfy

the test frequency requirements required under 40 CFR 51.355(a),

particularly regarding scheduling of vehicles for testing and the

selection scheme for the biennial program inspections, as well as a

description of how test frequency will be integrated with the

registration denial motorist enforcement process;

(2) The SIP does not fully account for all exceptions from testing

in the emissions reductions analysis. The state must account for

testing exceptions and account for them in their performance standard

modeling demonstration, per 40 CFR 51.356(b)(2);

(3) Virginia must develop quality control procedures, test

equipment specifications, quality control procedures manual, or other

ordinance or documents to satisfy all the quality control requirements

of 40 CFR 51.359;

(4) Virginia must amend its regulation to allow that waivers be

issued only by a single contractor or by the Commonwealth, per 40 CFR

51.360(c)(1);

(5) The final SIP submittal must include the procedures document

that adequately addresses the means by which the Commonwealth will

comply with all the motorist compliance enforcement program oversight

requirements set forth at 40 CFR 51.362;

(6) Virginia must complete and submit as a SIP revision to EPA

procedures manuals for use by the Commonwealth's quality assurance

auditors to conduct covert and overt audits for program oversight

purposes, per 40 CFR 51.363(e);

(7) The Commonwealth must adopt, and submit as a SIP revision, a

penalty schedule for inspectors and inspection stations, per 40 CFR

51.364(a) and (d);

(8) Virginia's SIP, either the regulation or the test equipment

specifications, must require that the specific data elements identified

in 40 CFR 51.365(a) be collected and reported to the Commonwealth on a

real-time basis;

(9) Virginia must finalize and submit the final ``Public

Information Plan'' described in the SIP, to satisfy the requirements of

40 CFR 51.368(a) and (b);

(10) Virginia must formally submit the procedures and criteria to

be used in meeting the repair performance monitoring requirements set

forth in 40 CFR 51.369(b) and a description of the repair technician

training resources available in the community (when available), per 40

CFR 51.369(c);

(11) Virginia must submit detailed recall compliance procedures and

a commitment to annually report recall compliance information to EPA,

per the requirements of 40 CFR 51.370;

(12) Virginia must amend the SIP to include information regarding

resource allocation for the on-road testing program, as well as methods

for analyzing and reporting the results of on-road testing, per 40 CFR

51.371. This may entail submittal of an on-road testing procedures

manual or the request for proposals (RFP) for the contractor to be

hired to operate the on-road testing program;

(13) Virginia must list in its schedule of implementation

milestones deadlines by which all procedures documents not yet part of

the SIP are to be finalized and submitted to EPA.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

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

the state implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

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

must prepare a regulatory flexibility analysis assessing the impact of

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

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

significant impact on a substantial number of small entities. Small

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

and government entities with jurisdiction over populations of less than

50,000.

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

Clean Air Act do not create any new requirements but simply approve

requirements that the state is already imposing. Therefore, because the

federal SIP approval does not impose any new requirements, the

Administrator certifies that it does not have a significant impact on

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

federal-state relationship under the CAA, preparation of a flexibility

analysis would constitute federal inquiry into the economic

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

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

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

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 rule that includes a federal mandate that may result in estimated

costs to state, local, or tribal governments in the aggregate, or to

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

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any 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 pre-existing requirements under state or local law, and

imposes no new federal requirements. Accordingly, no additional costs

to state, local, or tribal governments, or to the private sector,

result from this action.

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 Virginia

[[Page 57356]]

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: October 24, 1996.

Stanley L. Laskowski,

Acting Regional Administrator, Region III.

[FR Doc. 96-28543 Filed 11-5-96; 8:45 am]

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