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

Federal RegisterMay 15, 1997

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA 056-5023; FRL-5826-2]

Approval and Promulgation of Air Quality Implementation Plans;

Commonwealth of Virginia; Enhanced 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 Virginia. This revision

establishes and requires the implementation of an enhanced inspection

and maintenance (I/M) program in the following Virginia Counties:

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 conditionally

approve the Commonwealth's proposed enhanced I/M program for an interim

period to last 18 months, based upon the Commonwealth's good faith

estimate of the program's performance. This action is being taken under

section 110 of the Clean Air Act and section 348 of the National

Highway Systems Designation Act.

EFFECTIVE DATE: This final rule is effective on June 16, 1997.

ADDRESSES: Copies of the documents relevant to this action are

available for public inspection during normal business hours at the

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

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

19107. They are also available for inspection at the Virginia

Department of Environmental Quality, 629 East Main Street, Richmond,

Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Catherine L. Magliocchetti, by

telephone at: (215) 566-2174, or via e-mail at: magliocchetticatherine

@epamail.epa.gov. The mailing address is U.S. EPA Region III, 841

Chestnut Street, Philadelphia, PA, 19107.

SUPPLEMENTARY INFORMATION:

I. Table of Contents

II. Background

III. Public Comments/Response to Comments

IV. Conditional Interim Approval

V. Final Rulemaking Action

VI. Further Requirements for Full I/M SIP Approval

VII. Administrative Requirements

A. Executive Order 12866

B. Regulatory Flexibility Act

C. Unfunded Mandates

D. Submission to Congress and the General Accounting Office

E. Petitions for Judicial Review

II. Background

On November 6, 1996 (61 FR 57343), EPA published a notice of

proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR

proposed conditional interim approval of Virginia's enhanced inspection

and maintenance program, submitted to satisfy the applicable

requirements of both the Clean Air Act (CAA) and the National Highway

Systems Designation Act (NHSDA). The formal SIP revision was submitted

by the Virginia Department of Environmental Quality on March 27, 1996.

As described in that notice, the NHSDA directs EPA to grant interim

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

this Act. The NHSDA also directs EPA and the states to review the

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

a determination as to the effectiveness of the interim program.

Following this demonstration, EPA will adjust any credit claims made by

the state in its good faith effort, to reflect the emissions reductions

actually measured by the state during the program evaluation period.

The NHSDA is clear that the interim approval shall last for only 18

months, and that the program evaluation is due to EPA at the end of

that period. Therefore, EPA believes Congress intended for these

programs to start up as soon as possible, which EPA believes should be

on or before November 15, 1997, so that at least six months of

operational program data can be collected to evaluate the interim

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 this program. If the

Commonwealth fails to start its program according to this schedule,

this conditional interim approval granted under the provisions of the

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

the Commonwealth. Unlike the other specified conditions of this

rulemaking, which are explicit conditions under section 110(k)(4) of

the CAA and which will trigger an automatic disapproval should the

Commonwealth fail to meet its commitments, the startdate provision will

trigger a disapproval upon EPA's

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notification to the Commonwealth by letter that the startdate has been

missed. This letter will notify the Commonwealth that this rulemaking

action has been converted to a disapproval and that the sanctions

clocks associated with this disapproval has been triggered as a result

of this failure. The startdate condition is not imposed pursuant to a

commitment to correct a deficient SIP under section 110(k)(4); EPA is

imposing the startdate condition under its general SIP approval

authority of section 110 (k)(3), which does not require automatic

conversion.

The program evaluation to be used by the Commonwealth 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

this process has been deemed acceptable to EPA. For the quantitative

long term measure, the core requirement 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 has

determined that METT evaluation testing is not precluded by 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 conditional interim rulemaking

will expire on November 16, 1998. A full approval of Virginia's final

I/M SIP revision (which will include the Commonwealth's program

evaluation and final adopted state regulations) is still necessary

under section 110 and under sections 182, 184 or 187 of the CAA. After

EPA reviews the Commonwealth's submitted program evaluation and

regulations, final rulemaking on the Commonwealth's full SIP revision

will occur.

Specific requirements of the Virginia enhanced I/M SIP and the

rationale for EPA's proposed action are explained in the NPR and will

not be restated here.

III. Public Comments/Response to Comments

No comments were received with regard to this notice during the

comment period.

IV. Conditional Interim Approval

Under the terms of EPA's November 6, 1996 proposed interim

conditional approval rulemaking, the Commonwealth was required to make

commitments (within 30 days) to remedy four major deficiencies with the

I/M program SIP (as specified in the NPR), within twelve months of

final interim approval. In a December 4, 1996 letter to EPA from Thomas

H. Hopkins, Director of the Virginia Department of Environmental

Quality, Virginia commits to satisfy the major deficiencies cited in

the NPR, by dates certain specified in the letter. Since EPA is in

receipt of the Commonwealth's commitments, EPA is today taking final

conditional approval action upon the Virginia I/M SIP, under section

110 of the CAA. As discussed in detail later in this notice, this

approval is being granted on an interim basis, for an 18-month period

under authority of the NHSDA.

The conditions for approvability of the SIP are as follows:

(1) The Commonwealth must perform and submit the new modeling

demonstration that illustrates how its program will meet the relevant

enhanced performance standard, by September 15, 1997 (a date specified

by the Commonwealth in the commitment letter to EPA). 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. EPA expects that Virginia's new modeling demonstration will be

done using an approved EPA model in order to meet this condition.

Virginia should refer to EPA's guidance on modeling to determine which

version of the model is appropriate and suitable for Virginia's use in

meeting this commitment.

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

September 15, 1997 (a date specified by the Commonwealth in the

commitment letter to EPA), the final Virginia I/M regulation which

requires a METT-based evaluation be performed on 0.1% of the subject

fleet each year as per 40 CFR section 51.353(c)(3) and which meets all

other program evaluation elements specified in 40 CFR section

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) By September 15, 1997 (a date specified by the Commonwealth in

the commitment letter to EPA), Virginia must adopt and submit a final

Virginia I/M regulation which requires and which specifies detailed,

approvable test procedures and equipment specifications for all of the

evaporative and exhaust tests to be used in the enhanced I/M program.

The Commonwealth has committed to adopt approvable test procedures,

standards and specifications for its two-mode ASM test. The draft

regulations submitted to EPA with the commitment letter, containing the

two-mode ASM procedures and specifications do not comply in all

respects with EPA's ASM technical guidance EPA-AA-RSPD-IM-96-2. EPA

expects that Virginia will remedy any remaining discrepancies between

its regulation and approved EPA specifications by the September 15,

1997 date.

In addition to the above conditions, the Commonwealth must correct

several minor, or de minimus, deficiencies related to CAA requirements

for enhanced I/M. Although satisfaction of these deficiencies does not

affect the conditional interim approval status of the Commonwealth'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:

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

the test frequency requirements required under 40 CFR section

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 section 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 section 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

section 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 section 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 section 51.363(e);

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

penalty schedule for inspectors and inspection stations, per 40 CFR

section 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 section 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 section 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 section 51.369(b) and a description of the repair

technician training resources available in the community (when

available), per 40 CFR section 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 section 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

section 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.

V. Final Rulemaking Action

EPA is conditionally approving the enhanced I/M program as a

revision to the Virginia SIP, based upon certain conditions. This

conditional approval satisfies the requirements of section 182(c)(3) of

the CAA and the NHSDA for an enhanced I/M program. EPA also clarifies

its proposal to approve the SIP under section 110 of the Clean Air Act

as well. For the purposes of strengthening the SIP, EPA is also giving

a limited approval under section 110 if the state fulfills all of its

commitments within 12 months of this final rulemaking. This limited

approval under section 110 will not expire at the end of the 18 month

interim period. Thus, although an approved I/M SIP satisfying the

requirements of section 182(c)(3) may no longer be in place after the

termination of the interim SIP approval period provided by the NHSDA,

this program will remain a part of the federally enforceable SIP.

Should the Commonwealth fail to fulfill the conditions, other than

the startdate condition which will be treated as described above, by

the deadlines contained in each condition, the latest of which is no

more than one year after the date of EPA's final interim approval

action, 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 Commonwealth that the conditions had not

been met, and that the approval has converted to a disapproval.

VI. Further Requirements for Full I/M SIP Approval

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

18 months, under the authority of section 348 of the National Highway

Systems Designation Act of 1995. At the end of this period, the

approval will lapse. At that time, EPA must take final rulemaking

action upon the Commonwealth's SIP, under the authority of section 110

of the Clean Air Act. Final approval of the Commonwealth's plan will be

granted based upon the following criteria:

(1) The Commonwealth 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

Commonwealth and achieved with the interim program,

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

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

EPA's I/M rule, including those de minimus deficiencies identified in

this notice as minor for purposes of interim approval.

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, EPA 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).

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

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that includes a Federal mandate that may result in estimated 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 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 801(a)(1)(A) as added by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA submitted a report containing

this rule and other required information to the U.S. Senate, the U.S.

House of Representatives and the Comptroller General of the General

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

E. Petitions for Judicial Review

Under 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 Virginia 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 307(b)(2) of the

Administrative Procedures Act).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Nitrogen

dioxide, Ozone, Reporting and recordkeeping requirements.

Dated: May 2, 1997.

Thomas J. Maslany,

Acting Regional Administrator, Region III.

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 VV--Virginia

2. 52.2450 is amended by designating the existing text as paragraph

(a) and by adding paragraphs (b), (c) and (d) to read as follows:

Sec. 52.2450 Conditional Approval.

* * * * *

(b) The Commonwealth of Virginia's March 27, 1996 submittal for an

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

conditionally approved based on certain contingencies, for an interim

period to last eighteen months. If the Commonwealth fails to start its

program according to the schedule it provided, or by November 15, 1997

at the latest, this conditional approval will convert to a disapproval

after EPA sends a letter to the state. If the Commonwealth fails to

satisfy the following conditions within 12 months of this rulemaking,

this conditional approval will automatically convert to a disapproval

as explained under section 110(k) of the Clean Air Act. The conditions

for approvability are as follows: