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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA014-01-7195; A-1-FRL-5847-2]

Approval and Promulgation of Air Quality Implementation Plans;

Commonwealth of Massachusetts; 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 Massachusetts. This

revision establishes and requires the implementation of an enhanced

inspection and maintenance (I/M) program statewide in Massachusetts.

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 August 13, 1997.

ADDRESSES: Copies of the documents relevant to this action are

available for public inspection during normal business hours, by

appointment at the Office of Ecosystem Protection, U.S. Environmental

Protection Agency, Region I, One Congress Street, 11th floor, Boston,

MA; Air and Radiation Docket and Information Center, U.S. Environmental

Protection Agency, 401 M Street, SW., (LE-131), Washington, DC 20460;

Division of Air Quality Control, Department of Environmental

Protection, One Winter Street, 8th Floor, Boston, MA 02108.

FOR FURTHER INFORMATION CONTACT: Peter Hagerty, by telephone at: (617)

[[Page 37507]]

565-3571, or at the above EPA Region I address.

SUPPLEMENTARY INFORMATION:

I. Table of Contents

I. Table of Contents

II. Background

III. Public Comments/Response to Comments

IV. Final Rulemaking Action

V. Conditional Interim Approval

VI. Further Requirements for Permanent I/M SIP Approval

VII. Administrative Requirements

A. Executive Order 12866

B. Regulatory Flexibility Act

C. Unfunded Mandates Act

D. Submission to Congress & the General Accounting Office

E. Petitions for Judicial Review

II. Background

On January 30, 1997 (62 FR 4505), EPA published a notice of

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

NPR proposed conditional interim approval of Massachusetts' 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 Massachusetts Department of Environmental Protection on March

27, 1996. Supplemental information was submitted by letters dated

September 17, 1996, November 21, 1996, and November 27, 1996.

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 these programs. 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 state. 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 start date provision will only trigger a disapproval

upon EPA's notification to the Commonwealth by letter that the start

date has been missed. This letter will not only notify the Commonwealth

that this rulemaking action has been converted to a disapproval, but

also that the sanctions clock associated with this disapproval has been

triggered as a result of this failure. Because the start date condition

is not imposed pursuant to a commitment to correct a deficient SIP

under section 110(k)(4), EPA does not believe it is necessary to have

the SIP approval convert to a disapproval automatically if the start

date is missed. EPA is imposing the start date condition under its

general SIP approval authority of section 110(k)(3), which does not

require automatic conversion.

EPA recognizes Massachusetts' intent to start-up the program on or

prior to November 15, 1997, but no later than January 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 this process

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 366. EPA believes 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 conditional interim rulemaking

will expire on February 16, 1999. A full approval of Massachusetts'

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 and 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 Massachusetts 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 public comments were received with regard to this document

during the comment period.

IV. Final Rulemaking Action

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

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

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

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

proposal to approve the SIP under section 110 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 start date 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 had converted to a disapproval starting

the sanctions clock.

V. Conditional Interim Approval

Under the terms of EPA's January 30, 1997 proposed interim

conditional approval rulemaking, the Commonwealth was required to make

commitments (within 30 days) to remedy major deficiencies with the I/M

program SIP (as specified in the NPR), within twelve months of final

interim approval. On March 3, 1997, Massachusetts submitted a letter

from David B. Struhs, Commissioner of the Massachusetts Department of

Environmental Protection, to EPA committing to satisfy the major

deficiencies cited in the NPR, by dates

[[Page 37508]]

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 Massachusetts I/M SIP, under section 110 of

the CAA. As discussed in detail later in this document, 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 as described in the

proposal are as follows:

(1) The Commonwealth, must revise and submit to EPA, by April 1,

1997, a complete revised 15% plan utilizing appropriate I/M waiver,

compliance rates, test type and the phase-in emission standards which

will be used in November 1997 (i.e. ASM2 emission credits with phase in

cut points.) This submittal was made on March 30, 1997 and is being

proposed for interim approval elsewhere in today's Federal Register.

Therefore, Massachusetts has met this condition.

(2) The time extension program as described and committed to in the

March 3, 1997 letter from Massachusetts must be further defined to meet

the requirements of 51.360 (Waivers and Compliance via Diagnostic

Inspection) and must be submitted to EPA as a SIP revision by a date no

later than one year after the effective date of this interim approval.

Another program which meets the requirements of 40 CFR 51.360 and

provides for no more than a 1% waiver rate would also be approvable.

(3) Other major deficiencies as outlined in the proposal must also

be corrected to achieve the requirements of 40 CFR 51.351 (Enhanced IM

Performance Standard), 51.354 (Adequate Tools and Resources),

Sec. 51.357 (Test Procedures and Standards), Sec. 51.359 (Quality

Control), and Sec. 51.363 (Quality Assurance). The Commonwealth, in a

letter dated March 3, 1997 committed to correct these deficiencies by a

date certain within one year of conditional interim approval by EPA.

The preamble to the NPR under Section III. ``Discussion for

Rulemaking Action'' paragraph (2) inadvertently listed Motorist

Compliance Enforcement under 40 CFR 51.361 as a major deficiency. See

62 FR at 4513, col. 2, (Jan. 30, 1997). As discussed in the section by

section analysis in the proposal earlier in the preamble, Massachusetts

addressed the major problem under section 51.361 in a letter dated

November 27, 1996 by revising the compliance rate to 96% rather than

98%. See 62 FR at 4511, col. 3. Under the Proposed Action in the NPR,

this section is correctly not listed as a major deficiency. See 62 FR

at 4514 col. 1. Massachusetts must submit additional information for

Sec. 51.361 prior to final action on this program, as specified in de

minimus condition #4, below.

In addition to the above conditions, the Commonwealth must correct

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

for enhanced I/M described below. 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 program evaluation

element as required under 40 CFR 51.353;

(2) The SIP lacks a detailed description of the test frequency and

convenience element required under 40 CFR 51.355;

(3) The SIP lacks a detailed description of the number and types of

vehicles included in the program as required under 40 CFR 51.356;

(4) The SIP lacks detailed information concerning the enforcement

process, and a commitment to a compliance rate to be maintained in

practice required under 40 CFR 51.361;

(5) The SIP lacks the details of the enforcement oversight program

including quality control and quality assurance procedures to be used

to insure the effective overall performance of the enforcement system

as required under 40 CFR 51.362;

(6) The SIP lacks a detailed description of procedures for

enforcement against contractors, stations and inspectors as required

under 40 CFR 51.364;

(7) The SIP lacks a detailed description of data analysis and

reporting provisions as required under 40 CFR 51.366;

(8) The SIP lacks a public awareness plan as required by 40 CFR

51.368; and

(9) The SIP lacks provisions for notifying motorists of required

recalls prior to inspection of the vehicle as required by 40 CFR

51.370.

VI. Further Requirements for Permanent 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 minimis deficiencies identified in

the January 30, 1997 proposal (62 FR 4505) and this rule 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

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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 any 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 its 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

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 5 U.S.C. 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 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 September 12, 1997.

Filing a petition for reconsideration by the Administrator of this

final rule to conditionally approve the Massachusetts 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 Clean Air Act.)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,

Reporting and recordkeeping requirements.

Dated: May 14, 1997.

John P. DeVillars,

Regional Administrator, Region I.

40 CFR part 52 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 W--Massachusetts

2. Section 52.1120 is amended by adding paragraph (c)(114) to read

as follows:

Sec. 52.1120 Identification of plan.

* * * * *

(c) * * *

(114) The Commonwealth of Massachusetts' March 27, 1996 submittal

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

as amended on June 27, 1996 and July 29, 1996, and November 1, 1996, 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 schedule, 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.

(i) The conditions for approvability are as follows:

(A) The time extension program as described and committed to in the

March 3, 1997 letter from Massachusetts must be further defined and

submitted to EPA as a SIP revision by no later than one year after the

effective date of this interim approval. Another program which meets

the requirements of 40 CFR 51.360 (Waivers and Compliance via

Diagnostic Inspection) and provides for no more than a 1% waiver rate

would also be approvable.

(B) Other major deficiencies as described in the proposal must also

be corrected in 40 CFR 51.351 (Enhanced I/M Performance Standard),

Sec. 51.354 (Adequate Tools and Resources), Sec. 51.357 (Test

Procedures and Standards), Sec. 51.359 (Quality Control), and

Sec. 51.363 (Quality Assurance). The Commonwealth, committed in a

letter dated March 3, 1997 to correct these deficiencies within one

year of conditional interim approval by EPA.

(ii) In addition to the above conditions for approval, 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 approval status of

the Commonwealth's rulemaking granted under the authority of section

110 of the Clean Air Act, these deficiencies must be corrected in the

final I/M SIP revision prior to the end of the 18-month interim period

granted under the National Highway Safety Designation Act of 1995:

(A) The SIP lacks a detailed description of the program evaluation

element as required under 40 CFR 51.353;

(B) The SIP lacks a detailed description of the test frequency and

convenience element required under 40 CFR 51.355;

(C) The SIP lacks a detailed description of the number and types of

vehicles included in the program as required under 40 CFR 51.356;

[[Page 37510]]

(D) The SIP lacks a detailed information concerning the enforcement

process, and a commitment to a compliance rate to be maintained in

practice required under 40 CFR 51.361.

(E) The SIP lacks the details of the enforcement oversight program

including quality control and quality assurance procedures to be used

to insure the effective overall performance of the enforcement system

as required under 40 CFR 51.362;

(F) The SIP lacks a detailed description of procedures for

enforcement against contractors, stations and inspectors as required

under 40 CFR 51.364;

(G) The SIP lacks a detailed description of data analysis and

reporting provisions as required under 40 CFR 51.366;

(H) The SIP lacks a public awareness plan as required by 40 CFR

51.368; and

(I) The SIP lacks provisions for notifying motorists of required

recalls prior to inspection of the vehicle as required by 40 CFR

51.370.

(iii) EPA is also approving this SIP revision under section 110(k),

for its strengthening effect on the plan.

[FR Doc. 97-18407 Filed 7-11-97; 8:45 am]

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