Approval and Promulgation of Implementation Plans; New Jersey; Motor Vehicle Inspection and Maintenance Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NJ23-1-164, FRL-5823-9]

Approval and Promulgation of Implementation Plans; New Jersey;

Motor Vehicle Inspection and Maintenance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule.

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SUMMARY: EPA is granting conditional interim approval of a State

Implementation Plan (SIP) revision submitted by New Jersey. This

revision establishes and requires the implementation of an enhanced

inspection and maintenance (I/M) program in the State. There are two

intended effects of this action. One effect is to give conditional

approval to the State's proposed enhanced I/M program under section 110

of the Clean Air Act. The other intended effect is to grant interim

approval incorporating provisions authorized by section 348 of the

National Highway System

[[Page 26402]]

Designation Act, where applicable, to last a period of 18 months.

Application of section 348 may result in some program adjustments

during the 18-month period to ensure efficacy of the I/M program is

achieved.

EFFECTIVE DATE: This rule will be effective June 13, 1997.

ADDRESSES: Copies of the documents relevant to this action are

available for public inspection during normal business hours at the

following locations: Environmental Protection Agency, Region II Office,

Air Programs Branch, 290 Broadway, 25th Floor, New York, New York

10007-1866 and New Jersey Department of Environmental Protection, East

State Street, Trenton, New Jersey 08625.

FOR FURTHER INFORMATION CONTACT: Rudolph K. Kapichak, Mobile Source

Team Leader, Air Programs Branch, Environmental Protection Agency, 290

Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

I. Background

On October 31, 1996 (61 FR 56172), EPA published a notice of

proposed conditional interim approval of New Jersey's enhanced I/M

program. New Jersey submitted changes to the existing program on March

27, 1996 to satisfy the applicable requirements of both the Clean Air

Act (CAA) and the National Highway System Designation Act (NHSDA).

As described in the October 31, 1996 document, the NHSDA directs

EPA to grant interim approval for a period of 18 months to approvable

I/M submittals. The NHSDA also directs EPA and the states to review the

program results at the end of the 18-month interim period and to make a

determination as to the effectiveness of the program. Following this

demonstration, EPA will adjust any credit claims made by the state in

its good faith estimate 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 that Congress intended for these programs to

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

November 15, 1997, so at least six months of operational program data

can be collected to evaluate the programs. EPA believes that in setting

such a strict timetable for program evaluations under the NHSDA,

Congress recognized and attempted to mitigate any further delay with

the start-up of these programs. If New Jersey fails to start its

program by November 15, 1997, the interim approval granted under the

provisions of the NHSDA, which EPA believes allows the State to take

full credit in its 15 percent plan for all the emission reduction

credits in its proposal, will convert to a disapproval after a finding

letter is sent to the State by EPA. Therefore, New Jersey would be

required to include additional provisions in its SIP to provide the

necessary emission credit reductions. Because the start date is not

being imposed pursuant to a commitment to correct a deficient SIP under

section 110(k)(4), the failure to start the program by this date will

not convert the SIP approval to a disapproval automatically. EPA is

imposing the start date under its general SIP approval authority of

section 110(k)(3), which does not require automatic conversion;

therefore, the approval will be converted to a disapproval only upon

EPA's notification of the State by letter.

EPA recognizes New Jersey's intent to start up the program on or

prior to November 15, 1997 but no later than February 1, 1998.

The program evaluation to be used by the state during the 18-month

interim period must be acceptable to EPA. The Environmental Council of

States (ECOS) group has developed such a program evaluation process

which includes both qualitative and quantitative measures and has been

deemed acceptable to EPA. The core requirement for the quantitative

measure is that a mass emission transient test (METT) be performed on

0.1% of the subject fleet, as required by the I/M Rule at 40 CFR 51.353

and 51.366. EPA believes that METT evaluation testing is not precluded

by the NHSDA, and therefore, is still required to be performed by

states implementing I/M programs under the NHSDA and the CAA.

As per the NHSDA requirements, this interim approval of the program

will expire on December 14, 1998. A full approval of New Jersey's final

I/M SIP revision, which will include the State's program evaluation and

final adopted State regulations, is still necessary under sections 110,

182, 184 and 187 of the CAA. After EPA's review of the State's

submitted program evaluation and final regulations, any necessary

additional rulemaking on New Jersey's SIP revision will occur. If the

State's program evaluation demonstrates a shortfall, the State must

find additional emission reductions.

Specific requirements of the New Jersey enhanced I/M SIP and the

rationale for EPA's proposed action are explained in the October 31,

1996 notice and will not be restated here.

II. Public Comments/Response to Comments

This section discusses the content of the comments submitted to the

docket during the Federal comment period for the notice of proposed

rulemaking, published in the October 31, 1996 Federal Register, and

provides EPA's responses to those comments. Comments were received from

only the State of New Jersey. Copies of the original comment letter,

along with EPA's summary and response to comments, are available at

EPA's Region II office at the address listed in the ADDRESSES section

of this notice.

Comment--Functional Evaporative System Testing

New Jersey commented that underlying uncertainties remain with the

functional evaporative system pressure and purge testing procedures as

indicated in a draft report by the New Jersey Institute of Technology

and in EPA's November 5, 1996 guidance. The State also commented that

these uncertainties are carried through the MOBILE model used to

determine compliance with the I/M performance standard requirement.

Response to Comment

On November 5, 1996, EPA issued a policy memorandum from Margo Oge,

Director of EPA's Office of Mobile Sources (OMS), entitled ``I/M

Evaporative Emissions Tests''. This memo outlines the difficulties

related to pressure and purge functional testing, in practice in I/M

programs. The memo provides that EPA will accept states' credit claims

for the benefits from implementing purge testing, although many states

are not expected to begin using this test for 12-18 months.

On December 20, 1996, EPA issued an addendum to the November 5,

1996 memo. This memorandum from Leila Cook, Regional and States Program

Group Leader of EPA's OMS, serves to clarify the policy set forth in

the November 5, 1996 memo. Specifically, this memo requires states to

actually perform an available pressure test to receive credits claimed

for such a program in their SIP revision. Full modeled credit (i.e.,

from the MOBILE model) for the performance of pressure testing is

available only if a state performs an Arizona-like pressure test from

the fill pipe and a separate gas cap check. States performing only a

gas cap check will receive only 40% of the available MOBILE-modeled

credits for pressure testing.

[[Page 26403]]

EPA has acknowledged problems with the current purge test.

Therefore, states such as New Jersey that have indicated that they will

perform a purge test when one is available may continue to take 100% of

the credit for the purge test, without actually performing such

testing, until such time as EPA develops a viable purge test procedure.

New Jersey has also indicated that they will be performing a gas cap

check and an Arizona-like pressure test as part of the enhanced I/M

program.

Comment--Implementation Date

New Jersey anticipates that implementation of the enhanced I/M

program will begin on or before November 15, 1997. However, full

program start-up will probably not occur until early 1998. New Jersey

believes that this schedule will allow them enough time to collect at

least six months of operational data consistent with EPA guidance under

the NHSDA.

New Jersey cites section 348(c) of the NHSDA which states that

interim approval expires 18 months from the date of final interim

approval or on the date of final approval, whichever is earlier and

that final approval will be granted after the state demonstrates that

the I/M program credits are appropriate. New Jersey also cites the EPA

December 12, 1995 guidance which states that to obtain at least six

months of program operation to evaluate performance, programs must

start as soon as possible but no later than 12 months after final

interim approval.

Response to Comment

As stated earlier in this notice, 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. This interim

approval will expire on December 14, 1998. While EPA is in agreement

with the State that start-up in early 1998 would allow New Jersey to

collect sufficient data for program evaluation prior to the expiration

of this conditional interim approval, EPA continues to believe that

under the NHSDA the program should start up as soon as possible, which

EPA believes is on or before November 15, 1997. If the State fails to

start its program by this date, this interim approval will convert to

disapproval after a finding letter is sent to the State, as addressed

above.

III. Conditional Interim Approval

a. Major Deficiencies

Under the terms of EPA's October 31, 1996 proposed conditional

interim approval notice, the State was required to make commitments

within 30 days to correct two major deficiencies with the I/M program

SIP by dates certain. On November 27, 1996, New Jersey submitted a

letter to EPA from Robert C. Shinn, Jr., Commissioner of the New Jersey

Department of Environmental Protection, committing to satisfy the major

deficiencies cited in the October 31, 1996 notice by dates certain

specified in the letter. On April 22, 1997, Commissioner Shinn

submitted a letter amending the date by which the required performance

standard modeling would be submitted. A discussion of New Jersey's

deficiencies follows below.

Enhanced I/M Performance Standard Modeling

States must submit modeling demonstrating that the proposed I/M

program achieves the required emission reductions by the relevant dates

to determine whether the state I/M program meets the enhanced I/M

performance standard. New Jersey did not include modeling results or

assumptions in its submittal, but in its April 22, 1997 letter has

committed to submit them no later than February 1, 1998.

Test Procedures, Standards and Equipment

Written test procedures and pass/fail standards and equipment

specifications shall be established and followed for each model year

and vehicle type included in the I/M program. New Jersey's I/M program

will be using a one-mode ASM emissions test for most of its fleet. New

Jersey has been working with other states and the equipment

manufacturers, in coordination with EPA, to develop their own

procedures, specifications and standards for one and-two-mode ASM

testing. EPA must receive the State's test procedures, standards and

equipment specifications well before testing begins since finalization

of these program elements is critical to the program beginning

operation as planned. New Jersey committed to submit the final test

procedures, standards and equipment specifications by January 31, 1997.

EPA has received the State's final test equipment, specifications and

standards. Therefore, this condition has been met.

EPA is taking final conditional approval action upon the New Jersey

I/M SIP, under section 110 of the CAA on the condition that the State

performs and submits modeling results to EPA no later than February 1,

1998. As discussed in detail later in this notice, this approval

program is also being granted an interim approval for an 18-month

period, under the authority of the NHSDA.

b. De Minimus Deficiencies

In addition to the above, the State must correct eight minor, or de

minimus, deficiencies related to the CAA requirements for enhanced I/M.

Although satisfaction of these deficiencies does not affect the

conditional interim approval status of the State's program, these

deficiencies must be corrected in the final I/M SIP revision to be

submitted at the end of the 18-month interim period:

(1) New Jersey must submit proof that adequate funding will be

available throughout the life of the program as per 40 CFR 51.354.

(2) New Jersey must submit final requirements for inspection of

fleet vehicles as per 40 CFR 51.356.

(3) New Jersey's quality control measures must be in accordance

with the requirements set forth in 40 CFR 51.359.

(4) New Jersey must provide a detailed description of its motorist

compliance enforcement program as per 40 CFR 51.361.

(5) New Jersey must provide a description of the procedures that

will ensure program quality; such as audits, and training requirements

as set forth in 40 CFR 51.363.

(6) New Jersey must provide final program requirements for data

collection as set forth in 40 CFR 51.365.

(7) New Jersey must provide final procedures for analyzing and

reporting program data as per 40 CFR 51.366.

(8) New Jersey must complete the public information program,

including the repair station report card as set forth in 40 CFR 51.368.

IV. Explanation of the Interim Approval Process

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

program, which satisfies the requirements of CAA section 182(c)(3),

will automatically expire pursuant to the NHSDA. It is expected that

the State will at that time be able to make a demonstration of the

program's effectiveness using an appropriate evaluation criteria. EPA

expects the State will have at least six months of program data that

can be used for the demonstration. If the State fails to provide a

demonstration of the program's effectiveness to EPA at the end of the

18-month interim approval period, the interim approval will expire, and

EPA may disapprove the emission credits claimed for the State's I/M SIP

revision. If the State's program evaluation demonstrates a lesser

amount

[[Page 26404]]

of emission reductions actually realized than were claimed in the

State's previous submittal, EPA will adjust the State's credits

accordingly, and use this information to act on the State's final I/M

program.

V. Final Rulemaking Action

EPA is conditionally approving New Jersey's enhanced I/M program

based upon the conditions described in Section III(a) of this notice.

Unlike the start date condition, which was addressed above, should the

State fail to fulfill the performance standard modeling condition by

February 1, 1998, this conditional interim approval will convert to a

disapproval pursuant to CAA section 110(k)(4). In that event, EPA would

issue a letter to notify the State that the condition has not been met,

and the approval has converted to a disapproval. EPA clarifies that it

is taking both a limited conditional approval of the New Jersey

enhanced I/M program under section 110 which strengthens the SIP, as

well as a conditional interim approval under section 348 of the NHDSA

for purposes of compliance with the CAA section 182(c)(3). The limited

approval of the enhanced I/M program will not expire at the time the

interim approval of the 15 percent and 9 percent plans and the interim

approval of the enhanced I/M program under the NHSDA expire. Thus,

although an approved I/M program satisfying all of the requirements of

section 182(c)(3) may no longer be in place, the I/M program will

remain an enforceable SIP requirement. As explained above, the credits

provided by the I/M program on an interim basis for those plans may be

adjusted based on EPA's evaluation of the I/M program's performance.

VI. Further Requirements for Permanent I/M SIP Approval

This approval is being granted on an interim basis for a period of

18 months, in order for an evaluation of emission reduction credits,

under the authority of section 348 of the NHSDA. At the end of this

period, the interim approval of the emission credits will expire and

the credits will be adjusted accordingly based on the evaluation. At

that time, EPA must take action regarding the efficacy of the State's

SIP under the authority of sections 110 and 182 of the CAA. EPA will

evaluate New Jersey's I/M program based upon the following criteria:

(1) The State has complied with all the conditions of its

commitment to EPA,

(2) EPA's review of the State's program evaluation confirms that

the appropriate amount of program credit was claimed by the State and

achieved with the program during the interim period,

(3) Final program regulations are submitted to EPA, and

(4) The State's I/M program meets all of the requirements of EPA's

I/M rule, including those de minimus deficiencies identified in Section

III(b) above as minor for purposes of interim approval.

The State will be required to meet all conditions of this approval.

In addition, the emission credits obtained will be evaluated for their

adequacy for attainment, maintenance and other requirements of the CAA.

VII. Administrative Requirements

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.

A. Executive Order 12866

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

by the Regional Administrator under the procedures published in the

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

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

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

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

B. Regulatory Flexibility Act

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

must prepare a regulatory flexibility analysis assessing the impact of

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

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

significant impact on a substantial number of small entities. Small

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

and government entities with jurisdiction over populations of less than

50,000.

Conditional approvals of SIP submittals under section 110 and

subchapter I, part D of the CAA do not create any new requirements but

simply approve requirements that the State is already imposing.

Therefore, because the Federal SIP approval does not impose any new

requirements, I certify that it does not have a significant impact on

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

Federal-State relationship under the CAA, preparation of a 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 the State's failure to meet the commitment, it

will not affect any existing state requirements applicable to small

entities. Federal disapproval of the state submittal does not affect

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

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

that this disapproval action does not have a significant impact on a

substantial number of small entities because it does not remove

existing requirements nor does it substitute a new federal requirement.

C. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

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

or to 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 promulgated does not

include a Federal mandate that may result in estimated annual 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

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

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

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA

[[Page 26405]]

submitted a report containing this rule and other required information

to the U.S. Senate, the U.S. House of Representatives and the

Comptroller General of the General Accounting Office prior to

publication of the rule in today's Federal Register. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by July 14, 1997. Filing a

petition for reconsideration by the Administrator of this final rule to

conditionally approve the New Jersey I/M SIP, on an interim basis, does

not affect the finality of this rule for the purposes of judicial

review, nor does it extend the time within which a petition for

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

of such rule or action. This action may not be challenged later in

proceedings to enforce its requirements. (See section 307(b)(2) of the

Administrative Procedures Act).

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.

Dated: April 28, 1997.

William J. Muszynski,

Deputy Regional Administrator, Region II.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart FF--New Jersey

2. Section 52.1580 is added to read as follows:

Sec. 52.1580 Conditional approval.

(a) The State of New Jersey's March 27, 1996 submittal for an

enhanced motor vehicle inspection and maintenance (I/M) program, as

amended on November 27, 1996 and April 22, 1997, is conditionally

approved based on certain contingencies, for an interim period to last

18 months. If New Jersey fails to start its program by November 15,

1997, the interim approval granted under the provisions of the NHSDA,

which EPA believes allows the State to take full credit in its 15

percent plan for all of the emission reduction credits in its proposal,

will convert to a disapproval after a finding letter is sent to the

State by EPA. If the State fails to submit to EPA the final modeling

demonstrating that its program will meet the relevant enhanced I/M

performance standard by February 1, 1998, the conditional approval will

automatically convert to a disapproval as explained under Section

110(k) of the Clean Air Act.

(b) In addition to the above condition, the State must correct

eight minor, or de minimus, deficiencies related to the CAA

requirements for enhanced I/M. The minor deficiencies are listed in

EPA's conditional interim final rulemaking on New Jersey's motor

vehicle inspection and maintenance program published on May 14, 1997.

Although satisfaction of these deficiencies does not affect the

conditional interim approval status of the State's rulemaking, these

deficiencies must be corrected in the final I/M SIP revision to be

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

(c) EPA is also approving this SIP revision under Section 110(k),

for its strengthening effect on the plan.

[FR Doc. 97-12628 Filed 5-13-97; 8:45 am]

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