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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 091-4050; FRL-5679-9]

Approval and Promulgation of Air Quality Implementation Plans;

Commonwealth of Pennsylvania; 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 Pennsylvania. This

revision establishes and requires the implementation of an enhanced

inspection and maintenance (I/M) program in twenty-five Pennsylvania

counties. 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 February 27, 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 Pennsylvania

Department of Environmental Protection, Bureau of Air Quality, P.O. Box

8468, 400 Market Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Brian Rehn, by telephone at: (215)

566-2176, or via e-mail at: Rehn.B[email protected]. The

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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. Final Rulemaking Action

V. Conditional Interim Approval

VI. Further Requirements for Final 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 October 3, 1996 (61 FR 51638), EPA published a notice of

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

proposed conditional interim approval of Pennsylvania's enhanced

inspection and maintenance program, submitted to satisfy the applicable

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

Safety Designation Act (NHDSA). The formal SIP revision was submitted

by the Pennsylvania Department of Environmental Protection on March 22,

1996.

As described in that document, 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 state.

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. As discussed in detail in the Response to

Comments portion of today's rulemaking action, 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 July 27, 1998. A full approval of Pennsylvania'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 section 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 Pennsylvania enhanced I/M SIP and the

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

not be restated here.

At the same time EPA published its NPR for interim approval of the

Commonwealth's I/M program, EPA issued an interim final rule to defer

imposition of sanctions on the Commonwealth for failure to submit and

receive federal SIP approval of its I/M program (61 FR 51598). That

interim final rule served to toll the imposition of sanctions during

EPA's rulemaking process related to the Commonwealth's I/M SIP. EPA

solicited comments on that interim final determination, and received

adverse comments during the public comment period. EPA intends, in the

near future, to take rulemaking action upon that interim final

determination separately from today's final action. EPA will address

the comments received on that action in its separate rulemaking.

III. 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 3, 1996 Federal Register, and

provides EPA's responses to those comments. Submissions were received

from approximately 50 commenters, including the Commonwealth,

environmental organizations, industry groups, and from members of the

general public. Copies of the original comment letters, along with

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

III office at the address listed in the ADDRESSES section of this

document. EPA has first grouped similar comments and summarized them,

followed by EPA's response to specific comments. For clarity, in some

cases EPA has provided background information within a comment on its

requirements or its proposed action relevant to Pennsylvania's SIP,

prior to summarizing the comment itself.

Comment--Pennsylvania's ``Good Faith Estimate'' under the NHSDA

One commenter alleges that EPA does not have the statutory

authority to grant interim approval to Pennsylvania's proposed I/M SIP.

Specifically, the commenter asserts that the NHSDA provides states

authority to craft decentralized I/M plans if the state satisfies

certain requirements. The NHSDA requires such states to make a good

faith estimate regarding the expected performance of their proposed

program. The commenter argues that Pennsylvania has claimed 100% credit

for its plans performance (compared to EPA's model centralized,

enhanced I/M program), but offers no meaningful explanation to

substantiate its emissions reductions claim.

In a related comment, the Commonwealth argues that they have made

significant program enhancements to increase the effectiveness of

Pennsylvania's current decentralized I/M program, which satisfy the

good faith estimate requirements of section 348(c)(1) of the NHSDA. The

Commonwealth also commented that the basis of its good faith estimate

was eight program improvement measures listed in its SIP submittal, and

that EPA had inappropriately only included five of these measures

towards its good faith estimate in the proposed rulemaking. The items

which the Commonwealth claims EPA excluded from its proposed rulemaking

include: integrating the safety and emission inspection, increased

effectiveness of test equipment, and enhanced training and

certification for both repair technicians and inspectors.

[[Page 4006]]

Response to Comment: In its October 3, 1996 proposed rulemaking,

EPA proposed conditional interim approval of the Commonwealth's I/M

program under the authority of section 348 of the NHSDA and section 110

of the CAA. The NHSDA grants authority for EPA to approve a state's

program based on the full amount of credits proposed by the state if

the credits reflect a good faith estimate by the state and if the

revision otherwise complies with such Act.

As stated in the Conference Report to the NHSDA, states were

expected to have a difficult time quantifying the good faith estimate

required under the NHSDA. Therefore, the Conference Report indicates

that a state need only demonstrate that the proposed emission reduction

credit claims for the program have a basis in fact. Some specific

examples of means for states to generate a good faith estimate based on

existing or easily obtained historical data were also outlined in the

Conference Report. States could also include any other evidence that

has relevance to the effectiveness of a program within the good faith

estimate. The Conference Report states that ``EPA is to approve State

programs based on the emissions reduction credits as estimated by a

State, if the State's estimates reflect a good faith expectation of

performance.'' EPA believes that the NHSDA grants authority to approve

Pennsylvania's SIP, in the interim, on the basis of the good faith

estimates contained in this portion of their SIP.

Pennsylvania supplemented its I/M SIP submittal on June 27, 1996 to

include its formal ``good faith estimate'' required by the NHSDA. EPA's

proposed rulemaking cites the five factors listed in that SIP revision

as the Commonwealth's good faith estimate, which are: (1) increased

oversight through auditing; (2) additional on-road testing using remote

sensing; (3) use of State Police for visible enforcement; (4)

instantaneous data collection for swift enforcement; and (5) automation

of inspector data input to avoid errors or abuse.

Pennsylvania also committed (in the Good Faith Estimate portion of

that SIP addendum) to ``fully integrate its emissions testing program

with the long standing safety inspection program * * *''. EPA

interprets this commitment to mean that the Commonwealth will require

that emissions testing shall be performed prior to completion of a

safety inspection. Since the Commonwealth's good faith estimate refers

only to perceived respect commanded by the existing safety inspection

program, and does not establish how this perceived respect would be

transferred to the combined programs, EPA cannot ascertain whether this

integration would contribute to improving network effectiveness. While

integration of the safety and emissions programs may serve as a means

to achieve the motorist compliance rate committed to in the SIP, EPA

does not consider this argument, in and of itself, a means to improve

program effectiveness or to achieve the Commonwealth's claims for

additional emissions reductions for the emissions program.

The Commonwealth commented that increased effectiveness of test

equipment was a basis of its good faith estimate. However, the June 27,

1996 SIP supplement, which detailed the Commonwealth's good faith

estimate for the first time, did not include this argument as part of

Pennsylvania's basis in fact. These test equipment improvements,

including the use of dynamometers and advanced analyzers for testing,

as well as the addition of evaporative system testing will greatly

enhance the emissions inspection program, and these improved test

methods are accounted for in the performance standard modeling

demonstrating the emission reduction claims for the program. With the

lack of specificity in Pennsylvania's comments, EPA presumes that

Pennsylvania is not claiming that EPA models and guidance currently

provide insufficient credit for these test improvements, nor does EPA

believe that Pennsylvania is claiming that these test improvements

serve to improve the effectiveness of the Commonwealth's decentralized

program--beyond the levels attributed to this equipment in the

Commonwealth's modeling demonstration. Pennsylvania's good faith

estimate already claims improved network effectiveness for improvements

brought about by instantaneous data collection equipment and automation

of data entry by inspectors, both of which serve to improve network

effectiveness. The Good Faith Estimate section of Pennsylvania's SIP

does not presently contain the argument presented in Pennsylvania's

comment, and EPA does not believe based on the comment that this

argument would serve to improve the good faith estimate were it present

in the SIP.

Finally, Pennsylvania commented that enhanced training and

certification of repair technicians was part of its good faith

estimate, and that EPA overlooked the contribution of this element of

the program. The June 27, 1996 SIP addendum did not include this

provision as a basis for the Commonwealth's estimate. EPA agrees that

additional training and certification of repair technicians is crucial

to achieving the emissions reductions associated with the emission

testing program, as well as for maintaining public support for the

program. EPA cited as a deficiency in its proposal that Pennsylvania's

proposed regulations lack a requirement for mandatory technician

training and certification (although Pennsylvania's performance

standard demonstration claims full credit for this program). EPA

proposed that this deficiency be remedied by adoption of final

regulations which must include a mandatory technician training program,

to mirror the Commonwealth's modeled performance standard

demonstration. In the face of that SIP deficiency, and by the lack of

inclusion of this element in the formal Good Faith Estimate portion of

the Commonwealth's SIP, EPA did not consider this element when

considering the Commonwealth's good faith estimate.

Nevertheless, the Commonwealth's arguments to include these three

elements in their good faith estimate are moot, as these three elements

were not critical to EPA's acceptance of the state's good faith

estimate. EPA proposed to accept the good faith estimate under the

NHSDA without the benefit of those elements, although these elements do

benefit the SIP, serving to satisfy other statutory and regulatory I/M

requirements.

Comment--EPA's Decision to Conditionally Approve the Commonwealth's SIP

One commenter asserted that Pennsylvania's SIP suffers from

numerous major deficiencies that prevent approval of the SIP by EPA.

The examples cited correspond to those elements EPA cited as major

deficiencies in its proposed rulemaking. Furthermore, the commenter

adds that there are numerous other serious deficiencies, which EPA

deemed minor in its proposal, but which must eventually be corrected.

The commenter asserts that in light of the many deficiencies, this SIP

revision does not warrant conditional approval.

Response to Comment: In its proposal, EPA proposed five major

conditions which must be satisfied prior to issuance of final full

approval of the SIP, under the authority of section 110 of the CAA.

Additionally, EPA cited fourteen minor conditions, which do not affect

interim approval of the Commonwealth's SIP, but which must be corrected

prior to final full approval of the SIP.

[[Page 4007]]

EPA's ability to issue conditional approvals for SIPs having

correctable deficiencies was upheld in the case of NRDC v. EPA, 22 F.3d

1125, 1134-1135 (D.C. Circuit, 1994). In that case the court found that

the language of section 110(k)(4) of the CAA authorizes use of

conditional approval of a substantive SIP revision, which although not

approvable, can be made so by adopting specific EPA-required changes

within the prescribed conditional period. The court concluded that the

conditional approval mechanism was intended by Congress to provide EPA

with an alternative to disapproving substantive, but not entirely

satisfactory, SIPs submitted by the statutory deadlines, but not as a

means of circumventing those deadlines.

As indicated in the proposed rulemaking, EPA has reviewed

Pennsylvania's I/M SIP, and determined that this SIP is substantive and

the deficiencies are not insurmountable within the time frames of the

conditional approval period. Therefore, EPA's choice of conditional

approval is appropriate for this SIP. EPA also believes that the minor

deficiencies cited as de minimus do not detract from EPA's ability to

conditionally approve the Commonwealth's SIP, and need not be satisfied

until the end of the interim approval period granted under the

authority of the NHSDA. EPA believes that, due to the minor nature of

these deficiencies, allowing states the full term of the 18-month

interim approval period to correct these deficiencies will not cause an

adverse environmental impact.

Comment--Requirement for I/M in Mercer County

Numerous commenters expressed concern over implementation of an

inspection and maintenance (I/M) program in Mercer County,

Pennsylvania. The thrust of the comments was that this area is not

classified as a CAA nonattainment area, and the area is not violating

EPA's health-based NAAQS. Most of the commenters asserted that Mercer

is primarily a rural county, with only one small urban center having no

large industry base, i.e., Sharon. Several commenters pointed out that

none of the Pennsylvania counties surrounding Mercer is subject to

emissions testing, nor are the neighboring counties in Ohio.

Several commenters also contend that much of the pollution is

transported from across the Ohio border and/or from out-of-state

vehicles traversing several large interstate highways that bisect

Mercer County. Several commenters blamed large diesel trucks for the

pollution problem, citing black smoke spewed from those vehicles.

Many commenters also cited economic hardship that implementation of

this program would add to a county already suffering from the effects

of a poor economy.

Finally, several commenters cite a request from Governor Ridge to

remove Mercer County from the ``Northeast Ozone Transport Region'',

requesting that EPA approve this request and eliminate the requirement

for an I/M program for this area.

Response to Comment: Requirements for I/M programs are set forth in

section 182 and section 184 of the Clean Air Act (the CAA), as well as

in EPA's ``Regulation for I/M Program Requirements'', hereafter

referred to as the I/M rule, codified in the Code of Federal

Regulations (CFR) at 40 CFR Part 51, Subpart S. Section 182(c)(3) of

the CAA requires states to enact enhanced I/M programs in certain

metropolitan areas based upon the severity of those areas' ozone

problem and their populations.

Section 184(a) of the CAA establishes a Northeast Ozone Transport

Region (the OTR), to address ozone pollution caused by transport of

both ozone precursors and ozone between closely spaced urbanized areas.

The Commonwealth of Pennsylvania lies in the OTR. Section 184(b)(1)(A)

of the CAA requires that states lying in the OTR implement an enhanced

I/M program in any metropolitan areas having a population of over

100,000 persons--regardless of the severity of the ozone pollution

problem in that area. Mercer County comprises an MSA which has a

population over 100,000 persons, and therefore is subject to this I/M

requirement. Since Ohio does not lie in the Northeast OTR, Ohio

counties bordering Mercer are not subject to the same I/M requirements.

Section 51.350(b)(1) of EPA's I/M rule requires that the I/M

program be implemented in the entire OTR portion of a subject MSA.

Since MSAs are defined on a county-wide basis in Pennsylvania, the

entire county is subject to the program. While EPA's I/M rule does

allow for exceptions for extremely rural areas, the rule does not

provide for exclusion of an entire MSA on this basis.

Several of the Pennsylvania counties surrounding Mercer were not

defined as metropolitan statistical areas by the U.S. Office of

Management and Budget (OMB) as of 1990 (i.e., the enactment date of the

CAA and the date this I/M requirement was established). As a result, no

contiguous county to Mercer is required to adopt an enhanced I/M

program.

The Clean Air Act allows states to petition EPA to remove a state

or portions of a state from an OTR. On October 11, 1995, Pennsylvania

Governor Ridge submitted a petition to EPA to remove 37 western

Pennsylvania counties from the ozone transportation region--including

Mercer County. The Commonwealth contends that regional attainment ozone

NAAQS efforts are not significantly dependent upon control measures

from those counties. EPA has not yet acted upon the Governor's request.

Since EPA is compelled to take final action upon the Commonwealth's I/M

program, under a court settlement agreement filed October 1, 1996

pertaining to the case of Delaware Valley Citizens for Clean Air v.

EPA, EPA cannot wait for final action upon the Commonwealth's OTR opt-

out petition, before taking action upon the I/M program.

While many commenters believe that heavy-duty diesel trucks are

primarily responsible for ozone pollution, EPA does not agree with that

position. The pollutant stream emitted by a diesel engine differs

greatly from that of a gasoline-powered engine. While both engine types

emit nitrogen oxide emissions--a precursor to ozone, diesels typically

emit very low levels of hydrocarbons, another ozone precursor. Diesels

emit much greater levels of particulates, which are readily

identifiable as black or gray smoke, but are not ozone precursors.

While an individual heavy diesel truck typically emits a greater mass

of emissions compared to a passenger car, as a whole these trucks

comprise a much smaller portion of the vehicle fleet and as a whole

fleet, travel fewer vehicle overall miles than passenger cars. EPA

supports efforts to reduce emissions from diesels, such as emission

testing. However, this type of testing is not presently required under

any Federal statute. Adoption of such a program is currently the

purview of the states, and is therefore not the subject of today's

action.

For all the reasons set forth above, EPA cannot remove the

requirement for Mercer County to implement an OTR enhanced I/M program,

at this time. Should EPA accept Pennsylvania's petition to remove 32

counties, including Mercer, from the OTR, implementation of an I/M

program would no longer be required under federal law in those

counties.

Comment--EPA's I/M Program Evaluation Requirements

The Commonwealth commented that EPA has taken too narrow an

[[Page 4008]]

interpretation of authority provided by the NHSDA by focusing on its

prohibition against EPA's requiring states to adopt test-only programs

which utilized IM240 test equipment and methods; its abolition of EPA's

presumed ``50% credit discount'' previously assumed for decentralized

programs; and its ban of EPA's ability to disapprove such programs on

the basis of any presumed discount. Specifically, Pennsylvania states

that the NHSDA overrides I/M requirements which EPA established for use

in a centralized approach to the I/M program. In particular, this

includes the use of centralized mass-based emission, transient test

(METT) equipment to conduct the ongoing program evaluation required by

40 CFR 51.353. While the Commonwealth indicated in its comments that it

intends to perform an ongoing I/M evaluation program, per the CAA, the

Commonwealth has requested that it be allowed to use its own I/M

program test criteria and equipment to conduct such an evaluation in

place of the METT equipment required by EPA's regulation.

The Commonwealth's rationale for use of non-METT testing for its

evaluation equipment is set forth in its comment letter. Pennsylvania

believes that EPA's position is inconsistent with Congressional intent,

specifically in light of language from the Conference Report to the

NHSDA which provides that ``testing technology called I/M240 * * * is

not practical in the decentralized system of emissions testing * * *''

Furthermore, since EPA has proposed acceptance of Pennsylvania's

decentralized network design, Pennsylvania believes its alternative

test procedure should be found by EPA to be equivalent to meet the

evaluation requirements of 40 CFR 51.353. Pennsylvania does not believe

Congress intended for a centralized approach to evaluating the success

of the I/M program, since the Commonwealth maintains it would be

costly, inconvenient, and would not provide a clear evaluation of

Pennsylvania's decentralized program and equipment.

Pennsylvania requests that EPA agree, in its final rulemaking, that

the NHSDA authorizes states to use their control equipment to perform a

program evaluation, specifically allowing use of ASM evaluation

equipment in Philadelphia and two-speed idle testing equipment for use

in the Pittsburgh area.

Even if EPA refuses the above request, the Commonwealth asks that

EPA provide in the final rule that METT testing only be mandated in the

five-county Philadelphia area. Pennsylvania believes that since the

Pittsburgh area is not required to have as rigorous a program as

required in the Philadelphia area, it should not be held to the same

high standards for program evaluation. Further, Pennsylvania asserts

that the METT evaluation requirement is to be used as a benchmark to

ensure reductions equivalent to IM240 reductions, and this benchmark is

not necessary in Pittsburgh, where an idle test is to be used for

routine emissions inspection. The Commonwealth generally supports the

use of routine inspection equipment and procedures for use in

performing the ongoing program evaluation.

Response to Comment: EPA believes that the Commonwealth, in its

comments with respect to METT testing requirements, has misinterpreted

the CAA's rationale for requiring an ongoing program evaluation. While

the NHSDA prohibits mandatory IM240 testing on a centralized basis as

the inspection method used for passing and failing vehicles in I/M

programs, it is silent on the issue of program evaluation testing and

EPA believes that it clearly does not prohibit the Agency from

requiring METT sampling on a small, random subset of vehicles in order

to confirm the level of effectiveness of the program as authorized

under section 182(c)(3)(C) of the CAA. While Pennsylvania argues that a

test which is adequate for routine inspections should be good enough

for the purpose of program evaluation, EPA disagrees. The reason is

that the two tests are intended for two wholly different purposes, and

therefore have completely independent criteria for acceptability.

The routine, non-METT I/M inspection used to pass and fail vehicles

does not need to correlate very closely to the EPA Federal Test

Procedure (FTP), which has been used by EPA and vehicle manufacturers

for the last several decades for the purpose of determining actual

vehicle emissions; it need only be precise enough to make broad pass/

fail decisions, for the purpose of identifying grossly polluting

vehicles, with respect to ozone precursor pollutants. The program

evaluation test, on the other hand, is not used to make pass/fail

decisions; instead, it is used to measure actual total mass of

emissions (i.e., in tons), which requires a more precise measurement

tool. Since the purpose of the program evaluation is to determine

specifically the mass quantity of vehicle-related pollutants that are

eliminated as a result of implementation of the I/M program, the broad

pass/fail estimates provided by non-METT equipment are inadequate for

this purpose. For vehicle testing, precision is a function of how

closely the test correlates to the FTP--the best test method currently

available. Since the FTP itself is a mass-emission, transient test,

other METTs, of which there are several available in addition to the

IM240, tend to correlate well with the FTP, with some correlating

better than others. Non-METT tests, such as Pennsylvania's ASM and two-

speed idle tests, tend to have very low correlations to the FTP.

Since program evaluation is a means to determine the overall

emission reduction impact of an I/M program, and not a means of

comparing test equipment or network design, EPA believes the decision

to approve Pennsylvania's decentralized network design (including use

of ASM and idle test types) is independent of EPA's decision to

conditionally approve the program evaluation methodology portion of the

Commonwealth's SIP.

METT evaluation testing need not be performed on a centralized

basis. The I/M rule required such testing in all programs, whether

centralized or decentralized, prior to passage of the NHSDA. In

response to the Commonwealth's comments on costs, inconvenience, and

inaccuracy of centralized evaluation systems, it may help to clarify

that the I/M rule does not require the 0.1% program evaluation sample

to be conducted on a centralized basis or at a centralized location.

Furthermore, since evaluation testing need only be performed on a

minute fraction of the vehicle population (i.e., 0.1% of all subject

vehicles), few actual analyzers are needed to perform the evaluation,

and thus purchase or leasing of METT evaluation equipment is not nearly

as significant a financial burden as is implied by the Commonwealth's

comment. The possible availability of transportable METT equipment

provides states with a range of non-centralized options for undertaking

evaluation testing, so a state can provide a consumer-friendly

evaluation process.

The use of a METT evaluation on a 0.1% random sample will provide

states and EPA with quantitative assessments of how well I/M programs

are actually performing, with respect to overall emission reduction

benefits that result from all program elements (i.e. test type, network

design, enforcement mechanism, etc.) working together. The purpose of

the 0.1% METT is not to segregate the effectiveness of any individual

program element, such as test type. Specifically, it is not EPA's

intention to use the results of the 0.1% METT requirement to force

states to

[[Page 4009]]

switch to IM240 testing for their routine inspection process.

EPA believes Congress required an ongoing I/M program evaluation in

the CAA in order to measure, for the first time the actual

effectiveness of states' programs in achieving air pollution

reductions. METT testing provides mass-based fleet-wide emission

factors that are more reliable, reputable, and objective than any

broad, concentration-based results that any non-METT test (e.g. idle or

ASM testing) could provide. Section 182(c)(3)(C) of the CAA

specifically authorizes EPA to establish the methods for evaluating I/M

programs. EPA believes that nothing in the NHSDA prohibits EPA from

continuing to require METT as the appropriate evaluation method.

EPA does not agree that the program evaluation applies only to high

enhanced I/M areas. The CAA, which establishes the program evaluation

requirement for enhanced I/M programs, does not distinguish between

high or low enhanced I/M programs. Furthermore, the EPA I/M Flexibility

Rule, which established the low enhanced performance standard (which

the Commonwealth has chosen to use in Pittsburgh) did not change the

program evaluation requirements for state programs. EPA disagrees with

Pennsylvania's assertion that METT is only to be used as a benchmark to

ensure that reductions equivalent to IM240 reductions are achieved in a

program. Rather, as explained above, program evaluations whether in

high or low enhanced areas are intended to gauge the overall

effectiveness of how well a state's program is reducing emissions. EPA

does not believe that the purpose of a program evaluation is to verify

how well the state's inspectors are performing the test type as

required by the design of the network--that is the function of

inspector audit--rather, the program evaluation helps to determine the

overall emission reduction impact of the program with all the program

elements working together. For this reason, the requirement for METT

testing still applies all enhanced I/M areas, including the Pittsburgh

area.

Therefore, for the reasons set forth above, EPA does not agree with

Pennsylvania's arguments for use of non-METT based program evaluation.

In turn, the condition related to the Commonwealth's METT-based program

evaluation methodology remains in EPA's final interim approval. Please

refer to the SUPPLEMENTARY INFORMATION section of this document for

more information on the actual condition. Since Pennsylvania has

committed to comply with this requirement, EPA can conditionally

approve this aspect of the I/M SIP.

Comment--EPA's Requirements for I/M Inspection Network Design

Pennsylvania commented that EPA's proposed rulemaking requires the

state to demonstrate that its program meets the network evaluation

criteria found in 40 CFR 51.353(b)(1). This provision includes a 50%

discount for decentralized programs which is inconsistent with the

NHSDA.

Response to Comment: EPA agrees with the Commonwealth's comment.

EPA's October 3, 1996 proposed rulemaking mistakenly conditioned

approval of the Commonwealth's SIP on compliance with program

evaluation requirements of 40 CFR 51.353(b) (1) and (c). However, EPA

believes the requirements of Sec. 353(b)(1) have been superseded by the

NHSDA. Therefore, the condition upon the Commonwealth's SIP is amended

to require compliance with the program evaluation requirements found in

40 CFR 51.353(c).

Comment--Use of a Low-Enhanced I/M Program Without an Approved

Reasonable Further Progress Plan

One commenter asserted that EPA cannot approve the plan because it

does not comply with EPA's requirements in 40 CFR 51.351(g), which

allows states, under certain conditions related to a separate CAA

requirement, to utilize a less stringent ``low'' enhanced performance

standard. This I/M program flexibility may be applied if a state has an

approved plan to demonstrate reasonable further progress (RFP) towards

attainment of the ozone air quality standard, and that plan does not

rely upon additional reductions from enhanced I/M--beyond those

projected from a ``low'' enhanced program. The commenter asserts that

Pennsylvania currently does not have such an approved RFP plan for any

nonattainment area, and therefore does not qualify to design a low

enhanced I/M program.

In a separate but related comment, the Commonwealth also raised the

inconsistency between the I/M program implementation schedule

established by the NHSDA and EPA's requirements in 40 CFR 51.351(g) for

approval of the RFP SIP revisions prior to approval of the low enhanced

I/M programs. Additionally, Pennsylvania does not agree that proposed

approval of the 15% RFP plan submission for Pittsburgh is necessary

prior to final interim approval of the I/M program under the NHSDA.

Since the NHSDA modified the schedule for submission and final approval

of states' I/M programs, Pennsylvania believes that EPA cannot block

interim approval of the I/M SIP submissions on the basis of the

approval status of a 15% RFP submission.

Response to Comment: EPA amended its I/M program requirement

regulation (i.e., the I/M Flexibility Rule) on September 18, 1995 (60

FR 48029) to allow states additional flexibility in designing I/M

programs in cases where the full magnitude of reductions from

implementation of a ``high'' enhanced performance standard I/M program

are not necessary to make reasonable progress towards or to obtain the

national ambient air quality standard (NAAQS) for ozone. The result was

a less stringent performance standard called the ``low enhanced''

performance standard.

To ensure that a state wishing to use the low enhanced standard did

not need the additional emissions reductions afforded by high enhanced

I/M, EPA limited use of the low enhanced standard to areas that could

meet the requirements of the CAA for reasonable further progress, and

had not failed to meet CAA requirements for attaining the NAAQS.

Specifically, 40 CFR 51.351(g) requires, among other things, that

states have an approved SIP pursuant to CAA requirements related to

1996 RFP.

However, since the publication of EPA's I/M Flexibility Rule,

Congress passed the NHSDA, which set forth new time frames and

deadlines for adoption and implementation of I/M programs. Since the

NHSDA provided qualifying states only 120 days to submit proposed I/M

programs, and since the time frames for implementation and evaluation

of NHSDA I/M programs are triggered by EPA interim approval of such I/M

SIP revisions, EPA believes Congress intended for EPA to approve these

programs, on an interim basis, as soon as possible. Since in many cases

EPA has not yet been able to approve states' RFP SIPs for 1996, the

administrative process of taking final approval action upon these SIPs

could serve to delay approval of I/M SIPs submitted under the NHSDA.

Therefore, EPA interprets Congressional intent under the NHSDA to

supersede the requirement of 40 CFR 51.351(g) requiring full approval

of 1996 RFP SIPs that demonstrate that use of low enhanced I/M will not

jeopardize RFP requirements under the CAA prior to interim approval of

I/M SIPs under the NHSDA. Such final approval will be necessary prior

to full approval of I/M SIPs after the 18-month NHSDA evaluation

period. However, to ensure that use of the low enhanced performance

standard is appropriate, EPA believes that I/M plans for any area

[[Page 4010]]

relying upon the low enhanced standard cannot receive final interim

approval until such time as EPA concludes that an RFP plan containing a

low enhanced I/M program is appropriate and proposes approval of any

required 1996 RFP plan for that area. With relation to Pennsylvania's

I/M SIP revision, concurrent with issuance of this final interim

rulemaking action, EPA is proposing, via a separate rulemaking action,

conditional approval of the Pittsburgh 1996 RFP SIP, which demonstrates

the suitability of the low enhanced performance standard to that area.

Comment--EPA's Mechanism for Converting its Conditional Approval Action

to a Disapproval

One commenter asserts that EPA's conditional approval action should

automatically convert to a disapproval, unless EPA sends a finding

letter to the Commonwealth that all conditions have been fully

satisfied in a timely manner (as established by the final conditional

rulemaking). The commenter believes that EPA has a history of delay and

equivocation related to enforcement of the CAA upon the states.

Response to Comment: Under section 110(k)(4) of the CAA, EPA agrees

with the commenter that conditional approvals are automatically treated

as disapprovals, by operation of law, if a state fails to comply with

the commitments to correct SIP deficiencies. However, for purposes of

notice to the public concerning the official status of a SIP as of any

given date, EPA issued a policy memorandum on July 9, 1992 from John

Calcagni, Director, Air Quality Management Division, Office of Air

Quality Planning and Standards, entitled ``Processing of State

Implementation Plan Submittals''. In this memorandum, EPA indicated

that it would send a letter to the state indicating that the condition

had not been met, and that the approval status of the SIP had

automatically converted to a disapproval. It is important to note that

the conversion occurs by operation of law; the letter serves only to

notify the state and the public that the conversion has occurred.

EPA does not agree with the commenter's assertion that all

conditional approvals should convert to disapprovals, unless EPA issues

a letter indicating that all conditions of EPA's rulemaking action have

been met. Under the CAA, a SIP can only convert to a disapproval if the

conditions have not been met, in a timely fashion. Where a state has

satisfied the conditions of a conditional approval, it would not be

consistent with the CAA to have conditional approvals convert to

disapprovals merely because EPA failed to timely issue a confirmatory

letter. It should be noted that EPA intends to provide, in writing,

notification to the Commonwealth as to whether or not a condition has

been satisfied. EPA intends to do so within 30 days after the due date

of a condition.

Comment--Pennsylvania's Ability to Ensure Participation by a Sufficient

Number of Inspection Stations

One commenter was concerned about EPA's ability to ensure that

Pennsylvania's program will have sufficient participation to smoothly

operate the program. The commenter also questioned what contingency

measures Pennsylvania would implement if an insufficient number of

stations choose to participate in the program.

Response to Comment: While EPA recognizes the commenter's concern,

in that the Commonwealth was unable to disclose the number of stations

that it anticipates will participate in the program as of November

1997, EPA believes it remains appropriate to grant a conditional

approval to Pennsylvania's program at this time under the authority of

the NHSDA.

Furthermore, EPA believes the state has taken reasonable measures

to ensure that adequate station participation will be available to

accommodate the number of vehicles in the program. In addition to

establishing support for the program through the formation of two

stakeholders groups in the state to address the need for enhanced I/M

testing and other air quality control measures; the state has also

formed an I/M Working Group, comprised of repair shop owners, educators

and state regulators to address, among other issues, adequate

participation in the program by the repair station community.

While the Commonwealth has not submitted contingency measures in

its submittal under the NHSDA, provisions do exist under this

rulemaking that subject the state's program to further scrutiny at the

end of the interim approval period. EPA, as directed by Congress under

the NHSDA, will review Pennsylvania's program to ensure that the level

of credit claimed in its SIP submittal is accurate. If the state's

program fails this evaluation for any reason, the state will need to

take corrective action before a final full approval of the enhanced I/M

SIP revision will be granted.

Comment--Adequate Funding to State Police for Enforcement Activities

Related to the Program

One commenter was concerned that the State Police, to which

Pennsylvania has delegated primary enforcement responsibilities for the

program (both against testing stations and against motorists) has not

been given adequate additional resources to adequately enforce the

program.

Response to Comment: In its proposed approval, EPA cited a failure

on the Commonwealth's part to demonstrate adequate tools and resources

for the program, as required by 40 CFR 51.354. Specifically, states are

required to provide a detailed budget plan, and a plan describing the

personnel resources dedicated to the enhanced program. EPA considers

this a minor deficiency that must be corrected prior to full approval

of the SIP revision at the end of the 18-month interim approval period

provided under the NHSDA. In part, EPA's proposed rulemaking cited a

failure to detail personnel and equipment dedicated to the enforcement

portion of the program. Since the SIP revision calls for use of State

Police in the primary enforcement role, EPA expects the Commonwealth to

detail the State Police resources to be dedicated to this program prior

to issuance of final full approval.

Comment--The Commonwealth's Funding of the Program

One commenter was concerned that without a dedicated source of

funding the Commonwealth may not make sufficient expenditures to

properly implement the program. This commenter alleges that the

Commonwealth has a long history of not meeting its I/M commitments.

In a related comment, the Commonwealth asserted that it intends to

provide a detailed I/M program budget and personnel plan identifying

the personnel dedicated to quality assurance under the EPA I/M rule.

Specifically, the Commonwealth indicated its intent to issue requests

for proposal (RFPs) to contract with private vendors to provide some of

these services, and to submit the contractor's proposal that is

eventually accepted to perform this function.

Response to Comment: EPA's I/M requirements under 40 CFR 51.354

require states to demonstrate that adequate funding is available to

ensure proper operation of the program. A dedicated fund is also to be

created for use in oversight and operation of the program. However,

EPA's I/M rule allows for alternative funding

[[Page 4011]]

mechanisms (including reliance upon a general fund) for those states

which are constitutionally blocked from creating a dedicated fund, and

which demonstrate that funding can otherwise be maintained.

As indicated in EPA's proposed rulemaking, Pennsylvania has

established that it is constitutionally barred from creating a

dedicated I/M fund, and must instead rely upon annual appropriations

from the General Assembly. The Commonwealth must therefore submit an

annual budget for the first year of program operation detailing its I/M

program budget and personnel resources dedicated to the program.

However, EPA's proposal cited as a minor deficiency the lack of a

detailed budget plan describing funding sources for: I/M oversight

personnel, program administration, program enforcement, and purchase of

equipment, as required by 40 CFR 51.354. Also, a detailed personnel

plan describing human resources dedicated to: the quality assurance

program, data analysis, program administration, enforcement, public

education and assistance and other necessary functions.

The Commonwealth has not yet provided these detailed budget and

human resources plans, but has expressed a willingness to submit this

information in its final I/M SIP revision. If these functions are to be

performed by the Commonwealth, EPA requires detailed plans containing

that information. If these functions are contracted to private vendors,

EPA expects the Commonwealth will provide either a detailed RFP, a

binding proposal or bid from the contractor or contractors selected to

perform these functions, or final legal contracts between the selected

contractor or contractors and the Commonwealth that contain budget

plans and personnel allocations for these responsibilities. Therefore,

EPA is leaving the de minimus deficiency related to Pennsylvania's

demonstration of adequate resources intact in today's action.

Comment--Implementation Dates

EPA proposed commencement of I/M testing in the Philadelphia and

Pittsburgh areas by no later than November 15, 1997; and in all other

subject I/M areas by no later than November 15, 1999. The Commonwealth

commented that it supports EPA's proposed implementation dates for

those areas.

Response to Comment: This comment supports EPA's proposed action,

thus it does not change EPA's final decision or rulemaking action.

Comment--Performance Standard Modeling Issues

In its proposed interim conditional approval, EPA cited differences

between the Commonwealth's I/M regulation and the program design

parameters used in the modeling to demonstrate compliance with the

performance standard, as required under 40 CFR 51.351. Specifically,

the modeling assumed credit for features not found in the

Commonwealth's proposed regulations.

Among other things, Pennsylvania's modeling, as of the time of

proposal, included full credit for a mandatory repair technician

training and certification program in all subject counties. However, at

that time the proposed regulations did not provide for such a program.

Pennsylvania agrees in its comment letter that the state regulations

must be consistent with the modeling demonstration. Pennsylvania noted

that it intends to adopt regulations to provide for, among other

things, a mandatory technician training program, and provided draft

regulatory language for a repair training program in its comments to

EPA.

Pennsylvania states that its revised modeling, submitted November

1, 1996, demonstrates that the performance standard will be met as long

as its regulation, as finally adopted, is consistent with the

assumptions used in the performance standard modeling. Pennsylvania

claims that it will ensure consistency between the performance standard

modeling assumptions and its final regulation through the draft

regulatory revisions provided within its comment letter.

Pennsylvania claims that the result of all of the draft regulatory

amendments provided in its comment letter will ensure consistency

between the final regulations and the revised performance standard

modeling.

Response to Comment: EPA supports the Commonwealth's draft

regulatory language, as it adequately addresses the conflict between

the performance standard modeling assumptions and the Commonwealth's I/

M regulation.

However, as Pennsylvania indicated in its comments, the

Commonwealth intends to obtain input from the Pennsylvania I/M Working

Group on all redrafted regulatory language prior to adopting these

changes through the state's regulatory adoption process. These

revisions are also subject to public participation at the state level,

as well as changes through the rule adoption process, itself.

Therefore, EPA considers the Commonwealth's revised regulatory language

to be draft, until final regulations are adopted and submitted to EPA

as a SIP revision, and therefore cannot remove the minor deficiency

until the Commonwealth formally adopts and submits to EPA its final

regulations.

Comment--Remodeling the Performance Standard Using Updated ASM Test

Credits

Pennsylvania commented that it agrees with the EPA's proposal to

conditionally approve the Commonwealth's I/M SIP upon a requirement

that the Commonwealth remodel the performance standard to reflect the

newest ASM credit estimates. On November 1, 1996, Pennsylvania

supplemented its SIP with revised MOBILE modeling for the performance

standard demonstration.

Pennsylvania also committed to modify its regulations to

incorporate actual program startup dates and testing standards, or

``cutpoints'', to match those contained in its modeling demonstration.

Specifically, Pennsylvania provided comments containing draft

regulatory language to address a condition in EPA's proposed rulemaking

regarding I/M test equipment specifications and test procedures (i.e.,

for the ASM, idle, and 2-speed idle tests), in addition to providing

draft regulatory language to more clearly define the one-mode ASM test

to be used in the Philadelphia area. Pennsylvania also included in a

November 1, 1996 supplement to the SIP draft specifications for test

equipment to be used in the I/M program.

Response to Comment: This commenter supports EPA's proposed action,

and thus the comment does not alter EPA's final rulemaking action.

Pennsylvania indicated in its comments that it will obtain input

from the Pennsylvania I/M Working Group on all draft regulatory

amendments prior to adopting those changes through the state's

regulatory adoption process. Regulatory revisions are also subject to

public participation at the state level, as well as to changes at any

stage of the rule adoption process. Therefore, EPA considers the

Commonwealth's revised regulatory language to be draft, until final

regulations are adopted and submitted to EPA as a SIP revision, and

therefore cannot remove the minor deficiency until the Commonwealth

formally adopts and submits its final regulations to EPA. Since the

performance standard modeling must mirror the I/M program parameters

described in the Commonwealth's

[[Page 4012]]

regulation, EPA believes it would not be prudent to remove the de

minimus deficiency tied to modeling the I/M performance standard, until

Pennsylvania finalizes its regulatory requirements supporting that

modeling demonstration.

Therefore, EPA is maintaining the cited minor deficiency in its

final interim rulemaking action. Upon submission of final regulations

to remedy this deficiency, EPA will review the change and make a final

decision in its full approval action to be taken upon expiration of the

interim approval period afforded this SIP under the NHSDA.

Comment--Functional Evaporative System Testing

The Commonwealth commented that logistical problems exist with the

current functional evaporative system pressure and purge testing

procedures outlined in EPA's 1996 guidance. While Pennsylvania

continues to take credit for both purge and full pressure tests, as

currently allowed under EPA policy, the Commonwealth commented that it

will not require tests that are impractical to implement or which may

cause damage to evaporative system components. Pennsylvania further

alleges that over half of the vehicles subject to evaporative system

testing cannot be tested with EPA's current test method. Pennsylvania

claims that these tests are exceedingly difficult to implement in real

world testing environments because it is difficult to identify where to

hook up the testing equipment on many of the vehicles being tested.

Pennsylvania expects that EPA will work to develop an alternative test

that achieves all the emission reductions originally projected by EPA

for these tests. The Commonwealth adds in its comments that EPA

technical staff have acknowledged problems with the pressure test and

that there is currently no proven purge test procedure.

The Commonwealth further objected to EPA's conditioning of the

interim approval upon adoption of procedures for the purge and pressure

tests, as currently described in EPA guidance.

To address the lack of functional evaporative test procedures and

test equipment specifications, which EPA cited as a condition in its

proposed rulemaking, Pennsylvania provided draft regulatory language in

its comments.

Finally, the Commonwealth adds that to date, no alternative test

procedure has proven to be a viable substitute for EPA's test method.

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 functional 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. EPA hopes a suitable test will be available by the

time states begin testing.

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

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 fillpipe 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.

EPA has acknowledged problems with the current purge test.

Therefore, states such as Pennsylvania that committed to perform a

purge test 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. EPA expects Pennsylvania will

require some form of evaporative system pressure testing to receive

credit for implementation of this program element, and is interpreting

the Commonwealth's comments as a commitment to perform this testing. If

the Commonwealth chooses to enact only a gas cap check, the performance

standard demonstration must be amended to reflect the lower credit

levels attributed to that type of testing, as described above and in

the November 5, 1996 and December 20, 1996 memos. The final

Pennsylvania I/M regulation must include test procedures and emissions

standards for pressure testing, in addition to a requirement for purge

testing when such testing is readily available and is viable.

Comment--Definition of Light Duty Trucks

In its proposed rulemaking, EPA cited as a minor deficiency that

the Pennsylvania I/M regulation did not adequately define I/M program

vehicle coverage, per the requirements of 40 CFR 51.356. Specifically,

the regulatory definition of light-duty trucks differed from modeling

parameters found in the Commonwealth's performance standard

demonstration by not requiring vehicles up to 9,000 pounds gross

vehicle weight rating (GVWR) to be subject to the program.

Pennsylvania provided draft regulatory language in its comments to

address this problem, which would change the definition of light duty

trucks to include trucks up to 9,000 pounds GVWR.

Response to Comment: EPA supports the Commonwealth's draft

regulatory language. This correction will address the conflict between

the performance standard modeling assumptions and the Commonwealth's

regulatory requirements regarding vehicles subject to this program.

However, Pennsylvania also indicated in its comments that the

Commonwealth intends to obtain input from the Pennsylvania I/M Working

Group on all redrafted regulatory language prior to adopting these

changes through the Commonwealth's regulatory adoption process. These

revisions are also subject to public participation at the state level,

as well as changes through the rule adoption process, itself.

Therefore, EPA considers the Commonwealth's revised regulatory language

to be draft, until final regulations are adopted and submitted to EPA

as a SIP revision, and therefore cannot remove the minor deficiency

until the Commonwealth formally adopts and formally submits its final

regulations to EPA.

Comment--I/M Inspection Test Procedures

EPA cited as a condition of its proposed approval of Pennsylvania's

SIP the lack of procedures for certain I/M tests, including two-speed

idle, one-mode ASM, and functional evaporative system purge and

pressure tests, and for a lack of testing standards or ``cutpoints''

associated with those tests, per 40 CFR 51.357. EPA's proposed interim

approval was conditioned upon the Commonwealth submitting proposed ASM

and two-speed idle test procedures within 30 days, and upon the

Commonwealth's adoption of a final regulation incorporating those test

procedures within one year of EPA's final interim approval rulemaking.

EPA also cited the SIP's lack of phase-in test cutpoints for ASM and

two-speed idle testing.

Pennsylvania commented that it would modify its regulations to

include all test procedures, specifications, and standards to be used

in the Commonwealth's I/M program.

[[Page 4013]]

Additionally, the Commonwealth provided draft regulatory language to

incorporate idle and two-speed idle test procedures and standards. On

November 1, 1996, Pennsylvania submitted a formal amendment to its SIP

including draft specifications for ASM test procedures and ASM

cutpoints.

Response to Comment: By submitting its proposed ASM test procedures

in November of 1996, the Commonwealth has met the first of the

requirements set forth in EPA's October 3, 1996 proposed interim

conditional approval for a commitment needed to allow EPA to provide a

conditional approval. Under the terms of EPA's proposal, if those

requirements were not satisfied, EPA could not proceed with its final

interim rulemaking action.

To satisfy the condition for interim approval, the Commonwealth

must submit its final test equipment specifications and test procedures

for the ASM and two-speed idle tests, as well as the regulations which

require those tests as defined in the performance standard, within

twelve months of today's action. The condition, amended to reflect the

fact that the Commonwealth has provided a commitment to satisfy this

condition by a date certain, is being maintained in today's action.

Comment--Requirement for Real-Time Data Link Between Inspection

Stations and the Commonwealth

Pennsylvania commented that it will include a real-time computer

data link between test stations and the Commonwealth, or its

contractor. The Commonwealth also provided in its comments draft

regulatory language to require this real-time connection.

Response to Comment: EPA supports the Commonwealth's draft

regulatory language requiring a real-time data link between inspection

stations and the state. This amendment would satisfy EPA's related de

minimus deficiency cited in the October 3 proposal.

However, elsewhere in its comments the Commonwealth indicated that

it intends to obtain input from the Pennsylvania I/M Working Group on

all redrafted regulatory language prior to adopting these changes

through the state's regulatory adoption process. These revisions are

also subject to public participation at the state level, as well as

changes through the rule adoption process. Therefore, EPA considers the

Commonwealth's revised regulatory language to be draft, until final

regulations are adopted and submitted to EPA as a SIP revision, and

therefore cannot remove the minor deficiency until the Commonwealth

formally adopts and submits its final regulations to EPA.

Comment--Use of One-Mode ASM Test Procedure

In its proposed rulemaking, EPA stated that the Commonwealth was

considering use of a two-mode ASM test in the Philadelphia area,

instead of the one-mode ASM test described in the Commonwealth's SIP

revision. Pennsylvania commented that it is not proposing to implement

the two-mode ASM procedure at this time, opting instead to perform the

one-mode ASM test.

Response to Comment: EPA supports Pennsylvania's use of the one-

mode ASM test, as long as the Commonwealth can demonstrate that it

meets the performance standard requirements of 40 CFR 51.351. EPA will

make that determination upon submission of finally adopted regulations

which correspond to the Commonwealth's final performance standard

modeling. This determination will be made in the final SIP approval

action for Pennsylvania's I/M program, which EPA will promulgate after

all requirements specified in the interim approval have been satisfied.

Comment--Lack of Quality Control Procedures for ASM Testing

EPA's proposed rulemaking cited as a de minimus deficiency a lack

of quality control procedures for one-mode ASM testing, as required

under 40 CFR 51.359. Pennsylvania commented that it contemporaneously

submitted ASM quality control procedures with its ASM test procedures,

specifications, and standards. The SIP was amended by Pennsylvania to

include proposed ASM standards on November 1, 1996.

Pennsylvania stipulates that lack of quality control procedures is

not a SIP approval issue, but is instead a SIP implementation, or

compliance issue. Pennsylvania therefore argues that it has met the

quality control requirement at 40 CFR 51.359.

Response to Comment: EPA's requirements for I/M program quality

control are set forth in EPA's I/M regulation, at 40 CFR 51.359.

Specifically, the SIP shall include the procedure manual, rule,

ordinance, or law describing and establishing the quality control

procedures and requirements. EPA believes that establishment of quality

control procedures is a SIP approval issue, and is necessary to

maintain an effective program. In practice, EPA believes that

compliance oversight with these established procedures is critical to

the program's success.

The Commonwealth's proposed ASM equipment specifications submitted

in November of 1996 describe and establish quality control measures

related to that emissions measurement equipment. Since these

specifications are subject to change until the Commonwealth submits its

final SIP approval, EPA will make a final determination regarding this

de minimus deficiency when it takes final rulemaking action at the end

of the interim approval period provided for under the NHSDA.

Comment--Issuance of Waivers by the State: Waivers may be granted

to motorists whose vehicles fail to meet I/M testing standards after

spending a reasonable amount of money to obtain repairs to that effect,

after applying any available warranty coverage and excluding repairs

needed for ``tampered'' vehicles. EPA's I/M regulation at 40 CFR

51.360(c)(1) requires that if waivers are allowed under a state's I/M

program, then such waivers may be granted only by the state or by a

single contractor to the state.

The Commonwealth's proposed regulation allows qualified emission

inspection stations to issue waivers. In its proposed rulemaking on the

Commonwealth's I/M program, EPA cited as a de minimus deficiency the

Commonwealth's allowance of I/M test waivers.

Pennsylvania commented that it believes the NHSDA modified the

requirement for waiver issuance, and thus overrides EPA's I/M rule

requirement for centralized waiver issuance. The Commonwealth's basis

for this argument is that the NHSDA authorizes states to develop

decentralized I/M programs, and that centralized waiver issuance is not

compatible with Congress's intent. Pennsylvania argues that stringent

safeguards have been built-in to its I/M program (i.e., technician

certification, real-time data links between test stations and the

state, and strict enforcement requirements) which allow inspection

station personnel to issue waivers. Therefore, while Pennsylvania

commits to correct its regulations to provide for waiver issuance by a

single entity, the Commonwealth expressly requests that EPA allow

decentralized waiver issuance.

Response to Comment: To assure quality control of the issuance of

waivers, EPA required either the state or a single contractor to issue

waivers under 40 CFR 51.360(c). EPA believes this requirement was not

altered by the NHSDA. While the NHSDA does allow

[[Page 4014]]

for states to implement decentralized test networks, EPA does not

believe that Congress intended this to alter the requirements of the I/

M rule for quality assurance of the program. Further, EPA believes that

issuance of waivers by one authority would provide an effective

deterrent against fraud in decentralized or centralized testing

networks, as well as to ensure consumer protection through consistency

in waiver issuance criteria. EPA believes it is important for quality

assurance purposes that waiver control remains in the hands of one

entity. It is important to note that even prior to the advent of

``enhanced'' I/M programs, EPA has always maintained this requirement

for centralized waiver issuance for both centralized and decentralized

I/M programs. This requirement could also bolster public confidence in

the repair industry by providing an objective verification of the

appropriateness of test results and repairs.

Third-party verification of waiver eligibility serves to reinforce

both the inspection test results and the capabilities of repair

technicians within the program through positive reinforcement of the

professionalism of the repair industry and the emissions testing

program. Moreover, maintaining one waiver issuance authority provides

an extra incentive for the vehicle repair industry to maintain

integrity, leading to increased repair revenues and air quality

benefits from the I/M program, itself. Additionally, since a

centralized waiver system is not a new requirement, there is little

reason to expect an increase in frustration and/or delays for the

public.

Prior to passage of the NHSDA, EPA's I/M rule required centralized

waiver issuance for all programs, both centralized and decentralized.

Although the NHSDA increases flexibility to use decentralized programs,

it in no way indicates that requirements applicable to all programs,

such as waiver issuance should be altered. Therefore, EPA rejects the

Commonwealth's request to eliminate the requirement for waiver issuance

by a single entity, and urges the Commonwealth to consider means to

comply with the quality assurance requirement of 40 CFR 51.360(c).

Comment--Demonstration of the Effectiveness of the Commonwealth's

Sticker-Based Enforcement Mechanism

The CAA requires that states ensure compliance through the denial

of vehicle registration, with the exception of states having an

existing enforcement alternative that demonstrates to the EPA

Administrator that the alternative is more effective than registration

denial in ensuring that non-complying vehicles are not operated on

public roads.

Pennsylvania's SIP relies upon a sticker-based means of enforcement

to ensure motorist compliance with the program. In its proposal, EPA

conditioned interim approval of the SIP upon the Commonwealth's

satisfaction of the requirements of 40 CFR 51.361(b) related to

demonstration of compliance enforcement effectiveness.

The Commonwealth commented that its SIP contains a demonstration of

the effectiveness of sticker enforcement. The basis of the

demonstration is that the Commonwealth has statistical data from the

existing program indicating a motorist compliance rate of 97% (i.e.,

97% of all registered subject vehicles actually comply with I/M testing

requirements). However, for the same period, only 90.8% of the vehicles

subject to a separate state requirement to have a valid auto insurance

liability policy prior to obtaining re-registration actually complied

with this requirement. The Commonwealth therefore concludes that the I/

M program enforcement mechanism is more effective than a registration-

based mechanism used to enforce a separate insurance requirement. A

report contained in the SIP, as well as additional comments provided by

the Commonwealth on EPA's proposed rule, provide details of the

Commonwealth's comparative analysis. Finally, Pennsylvania comments

that its proposed I/M program contains enhancements over the existing

program which will ensure that the Commonwealth can maintain a 96%

motorist compliance rate, in accordance with the Commonwealth's

performance standard demonstration and the commitment provided in the

Commonwealth's SIP to maintain that level of compliance. Therefore, the

Commonwealth requests that EPA remove the proposed condition.

Another commenter indicated that EPA should require the

Commonwealth to use registration denial as its means for motorist

compliance enforcement. The Commonwealth's sticker enforcement

effectiveness demonstration is based, in part, upon the Commonwealth's

proposed integration of safety and emissions inspections into one

process (i.e., safety inspections cannot be completed prior to

completion of emissions testing). The commenter contends that with the

expense and other constraints of enhanced I/M testing, many inspection

stations in the existing I/M program may not participate in the

enhanced I/M program, particularly in the Philadelphia area where more

expensive and space-consuming ASM equipment is required. Therefore, it

would be unfair and unreasonable to penalize safety-only inspection

stations by placing them in a position to lose income because they do

not perform emissions testing. Furthermore, this commenter also

contends that it is not the responsibility of testing stations to act

as ``policemen'' and serve as the front line for enforcement of the

program. Therefore, the commenter supports registration denial as the

only palatable means of motorist enforcement.

Response to Comment: While section 182 of the CAA compels states to

adopt registration denial enforcement, it does provide certain states

the option to demonstrate alternatives to the satisfaction of the EPA

Administrator. EPA's I/M regulation at 40 CFR 51.361 defines criteria

for states' use in demonstrating the effectiveness of pre-existing

alternatives to registration denial enforcement.

EPA reviewed the demonstration provided in the Commonwealth's I/M

SIP, including a formal supplement to the SIP on June 27, 1996 to

clarify the sticker enforcement demonstration. EPA concluded in its

proposed rulemaking that the Commonwealth had not fully satisfied the

specific requirements of 40 CFR 51.361(b) (1) and (2). EPA therefore

proposed to condition its interim approval of the Commonwealth's I/M

SIP revision on the condition that the Commonwealth demonstrate to the

Administrator's satisfaction that the Commonwealth's sticker

enforcement program is more effective at deterring noncompliance than

denial of vehicle registration.

EPA believes the Commonwealth has made a compelling demonstration

for an alternative to registration denial under the provisions of 40

CFR 51.361(b)(1)(iii), relating to general requirements for alternative

enforcement mechanisms. However, the sticker enforcement / registration

compliance study submitted in Pennsylvania's SIP and subsequent

supplements provides only cursory information in relation to some of

the specific requirements under 40 CFR 51.361 (b)(1) and (b)(2)

necessary to demonstrate the effectiveness of a sticker-based

enforcement alternative, and does not in and of itself fully satisfy

EPA's requirements. Use of this type of generalized demonstration for

its alternative enforcement mechanism does not remove the additional

requirements specific to sticker-based enforcement alternatives set

forth in 40 CFR 51.361(b)(2). Pennsylvania's SIP

[[Page 4015]]

does not yet comply with all of these requirements to EPA's

satisfaction.

Therefore, EPA cannot remove the condition for approval related to

the Commonwealth's choice of a sticker-based alternative to

registration denial-based motorist compliance enforcement mechanism.

However, Pennsylvania committed in its November 1, 1996 SIP supplement

to submit any additional information needed to demonstrate the

effectiveness of its sticker enforcement program. Since the CAA

authorizes states to continue to use this type enforcement mechanism if

a state can demonstrate the adequacy of that mechanism to EPA's

satisfaction, EPA is compelled to allow the state to continue its use.

Should a state pursue sticker enforcement, it is the state's, not

EPA's, responsibility to consider equity and fairness issues for those

affected by the state's choice for an I/M motorist enforcement

mechanism. Therefore, EPA is today approving the Commonwealth's SIP,

conditioned upon the Commonwealth remedying the deficiencies related to

Pennsylvania's sticker enforcement mechanism, as described above.

Comment--Performance of Motorist Compliance Enforcement Program

Oversight

In its proposed rulemaking, EPA indicated that if the Commonwealth

chooses to contract out the responsibilities for motorist compliance

enforcement program oversight, as allowed by 40 CFR 51.362,

Pennsylvania must submit an RFP that adequately addresses how such a

private vendor will comply.

Pennsylvania commented that it intends to issue an RFP which

requires submission of a proposal to demonstrate how the selected

contractor will satisfy the required oversight requirements. The

Commonwealth also indicated that such an RFP will require bidding

contractors to describe how they intend to comply with the applicable

federal requirements. Pennsylvania's comments also indicated that it

intends to submit a copy of the proposal of the contractor selected to

conduct this oversight, and that this submission will satisfy EPA's

requirements for a description of the enforcement program oversight and

information management activities.

Response to Comment: EPA supports the Commonwealth's approach to

remedying this minor deficiency, with regard to a description of the

motorist compliance enforcement oversight program, as required by 40

CFR 51.362.

Until such time that the Commonwealth amends its SIP to describe

the motorist compliance enforcement oversight program in detail, or to

supplement the SIP with a legally binding contractual document that

describes how a vendor will satisfy this federal requirement, EPA

cannot consider the de minimus deficiency described in the October 3,

1996 proposed rulemaking to be remedied.

Comment--Performance of Quality Assurance Auditing

EPA's proposal cited as a de minimus deficiency the lack of a

requirement by the Commonwealth to annually audit their quality

assurance auditors, as required under 40 CFR 51.363. Pennsylvania

commented that it will modify its regulations to add such a

requirement. In addition, the Commonwealth provided draft regulatory

language in its comments to provide a partial means of remedying this

deficiency.

Pennsylvania commented that it intends to have auditing functions

performed by a private contractor. Again, Pennsylvania plans to issue

an RFP to any interested vendors which requires a private vendor to

comply with applicable federal requirements. Pennsylvania will then

submit to EPA the proposal for the selected vendor, which it believes

will satisfy EPA's requirement for a description of this program.

Response to Comment: EPA supports the Commonwealth's approach to

remedying this minor deficiency, with regard to the federal requirement

for the state to audit its own quality assurance auditors.

Until such time that the Commonwealth amends its SIP to describe in

detail its quality assurance auditing process, or to supplement the SIP

with a legally binding contractual document that describes how a vendor

will comply with this federal requirement, EPA cannot consider the de

minimus deficiency described in the October 3, 1996 proposed rulemaking

to be remedied. Therefore, EPA is retaining in its final interim

approval the de minimus deficiency related to this requirement.

In regard to the proposed regulatory revision to require this

auditing of the Commonwealth's auditors, EPA finds the language

acceptable. However, the Commonwealth intends to obtain input from the

Pennsylvania I/M Working Group on all amendments to its I/M regulation

prior to adopting these changes through the the regulatory adoption

process. These revisions are also subject to public participation at

the state level, as well as changes through the rule adoption process.

Therefore, EPA considers the Commonwealth's revised regulatory language

to be draft, until final regulations are adopted and submitted to EPA

as a SIP revision.

Therefore EPA cannot remove the minor deficiency until the

Commonwealth formally adopts and submits to EPA its final regulations

and the RFP or other legal document describing this I/M program

function to the detail required under federal law.

Comment--Recordkeeping Requirements for Enforcement Actions

EPA's proposed rulemaking cited that the Commonwealth's SIP does

not include provisions for Pennsylvania to maintain and submit to EPA

records of enforcement actions taken by the Commonwealth against

emission inspection stations. The Commonwealth comments assert that

EPA's regulations at 40 CFR 51.364 require only that the state

maintains such records, not that the state is required to submit such

records to EPA. Pennsylvania contends that its regulations, as

submitted in the March SIP submittal, currently require that these

records be maintained by the Commonwealth, and that such records are

available to EPA for inspection at any time.

Response to Comment: EPA agrees with this comment. EPA's proposal

mistakenly cited the Commonwealth's failure to submit records of

inspection station enforcement including warnings, fines, suspensions,

revocations, etc., in addition to maintenance of such records. This is

not a requirement of 40 CFR 51.364, and therefore EPA accepts the

Commonwealth's comment. Recordkeeping may be limited to maintenance of

such enforcement records, and inclusion of such related enforcement

statistics in summary reports to EPA, per requirements of 40 CFR

51.366(b).

EPA is amending its de minimus requirement related to maintenance

and submission of such records to require only maintenance of those

records.

Comment--Data Collection and Data Analysis Reporting

EPA indicated in its proposed rulemaking that Pennsylvania must

provide the RFP for how the data collection and data analysis and

reporting requirements at 40 CFR 51.365 and 366. The Commonwealth

commented that there is no federal requirement for how data is to be

collected, only that the SIP must describe the type of data to be

collected. The Commonwealth argues that since EPA raised no objections

in its proposed rulemaking to the type of data to be

[[Page 4016]]

collected, Pennsylvania meets the SIP requirements of EPA's

regulations.

Pennsylvania commented that it intends to issue an RFP which

requires the vendor's proposal to demonstrate how the vendor will

comply with federal data collection and data analysis and reporting

requirements. Pennsylvania contends that analysis and submittal of

reports is an implementation issue, and not a SIP approval requirement,

and that submission of this information in the SIP is neither necessary

nor a basis for approval.

Response to Comment: EPA's proposal cites a failure by the

Commonwealth to address in its SIP how the state, or its contractor,

will comply with the data collection requirements of 40 CFR 51.365 and

51.366, as well as how it will comply with the reporting requirements

of Sec. 51.366.

Until the Commonwealth either amends its SIP to describe the data

elements that will be collected under 40 CFR 51.365, or to submit an

RFP or other legally binding document to describe how a contractor to

the Commonwealth will fulfill this function, EPA does not consider this

requirement to be satisfied. Contrary to the Commonwealth's assertion,

EPA noted in its proposal that the Commonwealth's SIP submittal does

not adequately address how a private vendor will comply with the

specific requirements of 40 CFR 51.365. Therefore, EPA refutes the

Commonwealth's allegation that EPA raised no objections to the type of

data to be collected by the Commonwealth.

At this time, the Commonwealth has not submitted either an RFP, or

a legally binding document, which demonstrates that the contractor

selected by the Commonwealth to perform data analysis and reporting to

EPA will satisfy the requirements for those responsibilities described

within 40 CFR 51.366. While the performance of data analysis and

submission of such data summary reports to EPA are both implementation

issues, the SIP must describe the type of data to be collected,

including a detailed description of the specific elements to be

included in the state's reports required to be compiled and submitted

under 40 CFR 51.366. While data analysis and reporting are

implementation functions, the specific description of what is to be

reported must be included in the SIP, and is thus a SIP approvability

issue.

Until such time that the Commonwealth amends its SIP to describe in

detail the data collection, analysis, and reporting functions, or to

supplement the SIP with an RFP or other legal contractual document that

describes how a vendor will satisfy this federal requirement, EPA

cannot consider the de minimus deficiency, as described in the October

3, 1996 proposed rulemaking, to be remedied.

Comment--Requirement for Inspector Training

EPA's proposal cites as de minimus the failure on the part of the

Commonwealth in its SIP to require inspectors to complete refresher

training or to pass a skills re-test prior to being recertified. The

SIP also cites a lack of commitment on the Commonwealth's part to

monitor and evaluate the delivery of the inspector training program.

Pennsylvania provided draft regulatory language to remedy these

deficiencies in its comments to EPA's proposal.

Response to Comment: EPA supports the Commonwealth's draft

regulatory language. Once the regulatory language is finalized, this

correction would remedy the minor deficiency set forth in EPA's October

3, 1996 proposed rulemaking.

However, Pennsylvania also indicated in its comments that the

Commonwealth intends to obtain input from the Pennsylvania I/M Working

Group on all redrafted regulatory language prior to adopting these

changes through the state's regulatory adoption process. These

revisions are also subject to public participation at the state level,

as well as to changes through the rule adoption process, itself.

Therefore, EPA considers the Commonwealth's revised regulatory language

to be draft, until final regulations are adopted and submitted to EPA

as a SIP revision, and therefore cannot remove the minor deficiency

until the Commonwealth formally adopts and formally submits its final

regulations to EPA.

Comment--Public Information and Consumer Protection Plan

In its October 3, 1996 rulemaking, EPA found the SIP's lack of a

description of a public information plan and a consumer protection plan

to be de minimus deficiency. Since the SIP indicates that these

responsibilities are to be privatized through contract with a vendor,

EPA proposed that the RFP describing how that vendor would comply with

those requirements of 40 CFR 51.368 should be submitted to EPA as part

of the SIP revision.

Pennsylvania commented that it intends to issue an RFP which will

require vendors to adopt a plan to include the following public

information: the air quality problem, requirements of federal and state

law, role of motor vehicles in the air quality problem, the need for

and benefits of an I/M program, how to maintain a vehicle in a low-

emission condition, how to find a qualified repair technician, and the

requirements of the I/M program.

The Commonwealth intends to provide alternative repair statistical

information to motorists, as required by 40 CFR 51.368(a). The separate

requirement to conduct performance monitoring of repair stations is

found at 40 CFR 51.369(b)(1). Rather than providing detailed statistics

on a repair facility's ability to repair specific vehicles, the

Commonwealth intends to convey to the public similar information on the

relative ability of a repair facility to perform repairs on specific

emission systems components, in relation to average costs for those

repairs across an entire county.

In a related comment, Pennsylvania indicated that it will amend its

regulation to require inspection stations to provide software generated

interpretive diagnostic information to vehicle owners failing a test,

as a partial means of complying with the performance monitoring

requirements for improving repair effectiveness found at 40 CFR 51.369.

Response to Comment: The Commonwealth has not yet provided an

adequately detailed description of its public awareness plan in its

SIP, as required by EPA's regulation at 40 CFR 51.368(a). While

inclusion of the specific information described above (and in the

Commonwealth's comments) would in an RFP or other legally binding

contractual document would serve, in part, to satisfy the federal

requirement, the Commonwealth has not yet provided either.

Further, Pennsylvania has not yet amended the SIP, or submitted an

RFP to describe, in detail, its approach to satisfying the performance

monitoring requirements of 40 CFR 51.369(b)(1). Pennsylvania must

develop an approvable performance monitoring plan in order to satisfy

the public information plan requirements of 40 CFR 51.368 which depend

upon performance monitoring information.

Pennsylvania does assert in its comments that it believes this

performance monitoring approach will satisfy the requirements of 40 CFR

51.369(b)(1). This does not remedy the minor deficiency cited in EPA's

proposed rulemaking related to the requirements of 40 CFR 51.369(b)(1)

for a performance monitoring plan.

EPA will not accept an alternative to the performance monitoring

function required under 40 CFR 51.369(b)(1),

[[Page 4017]]

unless that alternative focuses not only upon the cost of repairs, but

also upon the facility-specific effectiveness of those repairs in

relation to the purpose of the I/M program (i.e., reducing emissions

levels for the vehicle for the pollutant for which it failed an I/M

test).

The Commonwealth must amend its SIP to describe in detail the

performance monitoring function, and its application to consumer

information and consumer protection; per the requirements of 40 CFR

51.368(a) and 40 CFR 51.369(b)(1). Until then, EPA must maintain the

related de minimus deficiency, as described in the October 3, 1996

proposed rulemaking, in its final interim approval action.

Comment--Description of On-Road Testing Requirements

EPA's proposed rulemaking cited as a minor deficiency the SIP's

lack of information regarding the Commonwealth's proposed on-road

testing program. Specifically, EPA cited a lack of information on

resource allocations, methods of analyzing and reporting the results of

the testing, and information on staffing requirements for both the

Commonwealth and any vendor to perform on-road testing.

Pennsylvania commented that its RFP will address the issue of

compliance by a private vendor and will comply with federal on-road

testing requirements. That RFP is to require vendors bidding on the

contract to submit a proposal demonstrating compliance with federal on-

road testing requirements. Pennsylvania commented that it would then

submit to EPA the proposal for the selected vendor, which it believes

will satisfy EPA's requirement for a detailed description of this

program.

Pertaining to the requirement for demonstrating adequate resources

to perform on-road testing functions, Pennsylvania commented that it

will provide detailed staffing requirements for Commonwealth staff

committed to this function.

Response to Comment: EPA supports the Commonwealth's approach to

remedying this minor deficiency, with regard to the on-road testing

program description and the resources to operate that program.

Until such time that the Commonwealth amends its SIP to describe

the on-road testing program in detail, or to supplement the SIP with a

legal contractual document that describes how a vendor will satisfy

this federal requirement, EPA cannot consider the de minimus

deficiency, as described in the October 3, 1996 proposed rulemaking, to

be remedied. Additionally, the deficiency cannot be remedied until

Pennsylvania amends the SIP to adequately describe the resources

allocated to on-road testing.

IV. Final Rulemaking Action

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

revision to the Pennsylvania SIP, based upon certain conditions. Should

the Commonwealth fail to fulfill the conditions 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.

V. Conditional Interim Approval

Under the terms of EPA's October 3, 1996 proposed interim

conditional approval rulemaking, the Commonwealth was required to make

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

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

final interim approval. On November 1, 1996, Pennsylvania submitted a

letter from James M. Seif, Secretary of the Pennsylvania Department of

Environmental Protection, to EPA committing 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 Pennsylvania

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 NHDSA.

The conditions for approvability of the SIP are as follows:

(1) By no later than September 15, 1997, a notice must be published

in the Pennsylvania Bulletin by the Secretary of the Pennsylvania

Department of Transportation which certifies that the enhanced I/M

program is required in order to comply with federal law and also

certifies the geographic areas which are subject to the enhanced I/M

program (the geographic coverage must be identical to that listed in

Appendix A-1 of the March 22, 1996 SIP submittal), and certifies the

commencement date of the enhanced I/M program. The I/M program for the

five-county Philadelphia area and for the four-county Pittsburgh area

must commence by no later than November 15, 1997, and the I/M program

for the remaining 16 counties must commence no later than November 15,

1999.

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

twelve months of EPA's final interim rulemaking action, the final

Pennsylvania I/M regulation which requires a METT-based evaluation be

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

51.353(c)(3) and which meets all other program evaluation elements

specified in 40 CFR 51.353(c). EPA is amending this condition from that

of its proposed rulemaking to remove the portion of the condition which

would require the Commonwealth to comply with the requirements of 40

CFR 51.353(b)(1).

(3) By no later than November 15, 1997, the Commonwealth must

submit a demonstration to EPA as an amendment to the SIP that meets the

requirements of 40 CFR 51.361 (b)(1) and (b)(2) and demonstrates that

Pennsylvania's existing sticker enforcement system is more effective

than registration denial enforcement.

(4) Within twelve months of EPA's final interim rulemaking action,

Pennsylvania must adopt and submit a final Pennsylvania I/M regulation

which requires and which specifies the following: exhaust test

procedures, standards, and equipment specifications; and evaporative

system functional test methods, standards and procedures; a visual

inspection procedure for determining the presence of or tampering with

of vehicle emission control devices; and a repair technician training

and certification (TTC) program. The test methods and procedures

established under the Commonwealth's I/M regulation must be acceptable

to EPA, as well as to the Commonwealth. The test methods and standards

provided for by the Commonwealth's final regulation must reflect the

modeling assumptions found in the Commonwealth's final performance

standard modeling demonstration (which must satisfy the requirements of

40 CFR 51.351).

Within the same time frame, detailed test equipment specifications

and standards (which are acceptable to EPA, as well as to the

Commonwealth) for all of the I/M evaporative and exhaust tests provided

for by the Commonwealth's regulation (as described above) must be

finalized and submitted as a SIP revision to EPA.

(5) The Commonwealth must perform and submit the final modeling

demonstration that its program will meet the relevant enhanced

performance standard, within twelve months of today's final interim

rulemaking.

In addition to the above conditions, the Commonwealth must correct

several

[[Page 4018]]

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 final I/M SIP submittal must detail the number of personnel

and equipment dedicated to the quality assurance program, data

collection, data analysis, program administration, enforcement, public

education and assistance, on-road testing and other necessary functions

as per 40 CFR 51.354;

(2) The definition of light duty truck in the definitions section

of the final Pennsylvania I/M regulation must provide for coverage up

to 9,000 pounds GVWR;

(3) The final Pennsylvania I/M regulation must require

implementation of the final full stringency emission standards at the

beginning of the second test cycle so that the state can obtain the

full emission reduction program credit prior to the first program

evaluation date;

(4) The final Pennsylvania I/M regulation must require a real-time

data link between the state or contractor and each emission inspection

station as per 40 CFR 51.358(b)(2);

(5) The final I/M SIP submittal must provide quality control

requirements for one-mode ASM (or two-mode ASM if the Commonwealth opts

for it);

(6) The Pennsylvania I/M regulation must only allow the

Commonwealth or a single contractor to issue waivers as per 40 CFR

51.360(c)(1);

(7) The final I/M SIP submittal must include the RFP, or other

legally binding document, which adequately addresses how the private

vendor selected to perform motorist compliance enforcement

responsibilities for the Commonwealth's program will comply with the

requirements as per 40 CFR 51.362;

(8) The final I/M SIP submittal must include the RFP that

adequately addresses how the private vendor will comply with 40 CFR

51.363, a procedures manual which adequately addresses the quality

assurance program and a requirement that annual auditing of the quality

assurance auditors will occur as per 40 CFR 51.363(d)(2);

(9) The final I/M SIP submittal must include provisions to maintain

records of all warnings, civil fines, suspensions, revocations,

violations and penalties against inspectors and stations, per the

requirements of 40 CFR 51.364;

(10) The final I/M SIP submittal must include a RFP, or other

legally binding document, which adequately addresses how the private

vendor selected by the Commonwealth to perform data collection and data

analysis and reporting will comply with all the requirements of 40 CFR

51.365 and 51.366;

(11) The final Pennsylvania I/M regulation must require that

emissions inspectors complete a refresher training course or pass a

comprehensive skill examination prior to being recertified and the

final SIP revision must include a commitment that the Commonwealth will

monitor and evaluate the inspector training program delivery, per the

requirements of 40 CFR 51.367;

(12) The final I/M SIP submittal must include a RFP, or other

legally binding document, which adequately addresses how the

Commonwealth's selected contractor will comply with the public

information requirements of 40 CFR 51.368;

(13) The Pennsylvania I/M regulation must include provisions that

meet the requirements of 40 CFR 51.368(a) and 51.369(b) for a repair

facility performance monitoring program plan and for providing the

motorist with diagnostic information based on the particular portions

of the test that were failed; and

(14) The final I/M SIP submittal must contain sufficient

information to adequately address the on-road test program resource

allocations, methods of analyzing and reporting the results of the on-

road testing, and information on staffing requirements for both the

Commonwealth and the private vendor for the on-road testing program.

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 October 3, 1996 proposal (61 FR 51638) 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, 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,

[[Page 4019]]

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

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 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 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 March 31, 1997.

Filing a petition for reconsideration by the Administrator of this

final rule to conditionally approve the Pennsylvania 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, Intergovernmental relations, Nitrogen dioxide, Ozone,

Reporting and recordkeeping requirements.

Dated: January 13, 1997.

W. Michael McCabe,

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 NN--Pennsylvania

2. Section 52.2026 is added to read as follows:

Sec. 52.2026 Conditional Approval.

The Commonwealth of Pennsylvania's 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.

(a) The conditions for approvability are as follows:

(1) By no later than September 15, 1997, a notice must be published

in the Pennsylvania Bulletin by the Secretary of the Pennsylvania

Department of Transportation which certifies that the enhanced I/M

program is required in order to comply with federal law and also

certifies the geographic areas which are subject to the enhanced I/M

program (the geographic coverage must be identical to that listed in

Appendix A-1 of the March 22, 1996 SIP submittal), and certifies the

commencement date of the enhanced I/M program. The I/M program for the

five-county Philadelphia area and for the four-county Pittsburgh area

must commence by no later than November 15, 1997, and the I/M program

for the remaining 16 counties must commence no later than November 15,

1999.

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

twelve months of EPA's final interim rulemaking action, the final

Pennsylvania I/M regulation which requires a mass-based emission,

transient testing-based evaluation be performed on 0.1% of the subject

fleet each year as per 40 CFR 51.353(c)(3) and which meets the program

evaluation elements as specified in 40 CFR 51.353(c).

(3) By no later than November 15, 1997, the Commonwealth must

submit a demonstration to EPA as an amendment to the SIP that meets the

requirements of 40 CFR 51.361(b)(1) and (b)(2) and demonstrates that

Pennsylvania's existing sticker enforcement system is more effective

than registration denial enforcement.

(4) Within twelve months of EPA's final interim rulemaking action,

Pennsylvania must adopt and submit a final Pennsylvania I/M regulation

which requires and which specifies the following: exhaust test

procedures, standards, and equipment specifications; and evaporative

system functional test methods, standards and procedures; a visual

inspection procedure for determining the presence of or tampering with

of vehicle emission control devices; and a repair technician training

and certification (TTC) program. The test methods and procedures

established under the Commonwealth's I/M regulation must be acceptable

to EPA, as well as to the Commonwealth. The test methods and standards

provided for by the Commonwealth's final regulation must reflect the

modeling assumptions found in the Commonwealth's final performance

standard modeling demonstration (which must satisfy the requirements of

40 CFR 51.351). Within the same time frame, detailed test equipment

specifications and standards (which are acceptable to EPA, as well as

to the Commonwealth) for all of the I/M evaporative and exhaust tests

provided for by the Commonwealth's regulation (as described above) must

be finalized and submitted as a SIP revision to EPA.

[[Page 4020]]

(5) The Commonwealth must perform and submit the final modeling

demonstration that its program will meet the relevant enhanced

performance standard, within twelve months of EPA's final interim

rulemaking.

(b) 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:

(1) The final I/M SIP submittal must detail the number of personnel

and equipment dedicated to the quality assurance program, data

collection, data analysis, program administration, enforcement, public

education and assistance, on-road testing and other necessary functions

as per 40 CFR 51.354;

(2) The definition of light duty truck in the definitions section

of the final Pennsylvania I/M regulation must provide for coverage up

to 9,000 pounds GVWR;

(3) The final Pennsylvania I/M regulation must require

implementation of the final full stringency emission standards at the

beginning of the second test cycle so that the state can obtain the

full emission reduction program credit prior to the first program

evaluation date;

(4) The final Pennsylvania I/M regulation must require a real-time

data link between the state or contractor and each emission inspection

station as per 40 CFR 51.358(b)(2);

(5) The final I/M SIP submittal must provide quality control

requirements for one-mode ASM (or two-mode ASM if the Commonwealth opts

for it);

(6) The Pennsylvania I/M regulation must only allow the

Commonwealth or a single contractor to issue waivers as per 40 CFR

51.360(c)(1);

(7) The final I/M SIP submittal must include the RFP, or other

legally binding document, which adequately addresses how the private

vendor selected to perform motorist compliance enforcement

responsibilities for the Commonwealth's program will comply with the

requirements as per 40 CFR 51.362;

(8) The final I/M SIP submittal must include the RFP that

adequately addresses how the private vendor will comply with 40 CFR

51.363, a procedures manual which adequately addresses the quality

assurance program and a requirement that annual auditing of the quality

assurance auditors will occur as per 40 CFR 51.363(d)(2);

(9) The final I/M SIP submittal must include provisions to maintain

records of all warnings, civil fines, suspensions, revocations,

violations and penalties against inspectors and stations, per the

requirements of 40 CFR 51.364;

(10) The final I/M SIP submittal must include a RFP, or other

legally binding document, which adequately addresses how the private

vendor selected by the Commonwealth to perform data collection and data

analysis and reporting will comply with all the requirements of 40 CFR

51.365 and 51.366;

(11) The final Pennsylvania I/M regulation must require that

emissions inspectors complete a refresher training course or pass a

comprehensive skill examination prior to being recertified and the

final SIP revisions must include a commitment that the Commonwealth

will monitor and evaluate the inspector training program delivery, per

the requirements of 40 CFR 51.367;

(12) The final I/M SIP submittal must include a RFP, or other

legally binding document, which adequately addresses how the

Commonwealth's selected contractor will comply with the public

information requirements of 40 CFR 51.368;

(13) The Pennsylvania I/M regulation must include provisions that

meet the requirements of 40 CFR 51.368(a)and 51.369(b) for a repair

facility performance monitoring program plan and for providing the

motorist with diagnostic information based on the particular portions

of the test that were failed; and

(14) The final I/M SIP submittal must contain sufficient

information to adequately address the on-road test program resource

allocations, methods of analyzing and reporting the results of the on-

road testing and information on staffing requirements for both the

Commonwealth and the private vendor for the on-road testing program.

[FR Doc. 97-1846 Filed 1-27-97; 8:45 am]

BILLING CODE 6560-50-P