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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MD037-3015; FRL-5864-8]

Approval and Promulgation of Air Quality Implementation Plans;

State of Maryland; Enhanced Motor Vehicle Inspection and Maintenance

Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final conditional approval.

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SUMMARY: EPA is granting conditional approval of a State Implementation

Plan (SIP) revision submitted by the State of Maryland. This revision

establishes and requires the implementation of an enhanced motor

vehicle inspection and maintenance (I/M) program in the counties of

Anne Arundel, Baltimore, Calvert, Carroll, Cecil, Charles, Frederick,

Harford, Howard, Montgomery, Prince George's, Queen Anne's, Washington,

and the City of Baltimore. The intended effect of this action is to

conditionally approve the Maryland enhanced motor vehicle I/M program.

EPA is conditionally approving Maryland's SIP revision based on the

fact that: Maryland's SIP is deficient in certain aspects with respect

to the requirements of the Act and EPA's I/M program regulations, and

Maryland has made a commitment in a letter, dated December 23, 1996, to

work with EPA to address and correct all deficiencies as necessary to

ensure full compliance with I/M requirements by a date certain within

one year from September 2, 1997. This action is taken under section 110

of the 1990 Clean Air Act (CAA, or the Act).

EFFECTIVE DATE: This final rule is effective on September 2, 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,

[[Page 40939]]

Philadelphia, Pennsylvania 19107 and the Maryland Department of the

Environment, 2500 Broening Highway, Baltimore, Maryland, 21224.

FOR FURTHER INFORMATION CONTACT: Catherine L. Magliocchetti at 215-566-

2174 or Jeffrey M. Boylan at 215-566-2094 at the EPA Region III address

above, or via e-mail at [email protected]. or

[email protected]

SUPPLEMENTARY INFORMATION:

I. Background

On October 31, 1996, (61 FR 56183), EPA published a notice of

proposed rulemaking (NPR) for the State of Maryland. The NPR proposed

conditional approval of Maryland's enhanced inspection and maintenance

program, submitted on July 11, 1995 and amended on March 27, 1996, by

the Maryland Department of the Environment (MDE). A description of

Maryland's submittal and EPA's rationale for its proposed action were

presented in the NPR and will not be restated here.

II. Public Comments/Response to Public Comments

EPA received comments from two citizens, and from the Maryland

Department of the Environment. The individual comments are listed

below, followed by EPA's response.

Comment #1: One citizen disagreed with the idea of car emission

testing in general, stating that he thought that money budgeted to EPA

could be better spent elsewhere.

Response #1: EPA maintains that enhanced vehicle emission

inspection programs, such as the one designed by Maryland, are one of

the most cost-effective air pollution control technologies available

today. Mobile sources contribute significantly to the ozone

nonattainment problem in the State of Maryland, and citizens can

contribute to improving air quality by keeping their vehicles well

maintained. The Vehicle Emissions Inspection Program, or VEIP,

developed by Maryland will help decrease the amount of ozone-forming

pollutants in the state at a modest cost to the consumer.

Administration and implementation of the VEIP is funded at the state

level, from transportation funding and from the collection of

inspection fees by the state and its contractor. In addition, vehicle

testing is required by the Clean Air Act for serious and severe ozone

nonattainment areas, such as those in Maryland.

Comment #2: Another citizen commented that Maryland's VEIP should

be delayed until inspection & maintenance programs in the neighboring

states of Pennsylvania, Virginia, Delaware, and West Virginia are put

into effect.

Response #2: Under the Clean Air Act (the Act), Pennsylvania,

Virginia and Delaware were all originally required to develop and

implement inspection & maintenance programs similar to the program

developed in Maryland as of 1995. West Virginia is not currently

required to implement an inspection & maintenance program under the

requirements of the Act since the entire state has met the national

ambient air quality standards for ozone and carbon monoxide.

Pennsylvania, Virginia, and Delaware are all moving forward with

inspection & maintenance programs and each of these states has

submitted I/M program revisions to their respective State

Implementation Plans, as required by the Act. EPA has issued final

rulemakings granting conditional, interim approvals to Pennsylvania and

Virginia's I/M plans (PA published on January 28, 1997 at 62 FR 4004;

and VA published on May 15, 1997 at 62 FR 26745), and Delaware received

a final conditional approval for its plan on May 19, 1997 at 62 FR

27195. Programs in Pennsylvania and Virginia are required to start by

November 1997 under the terms of the relevant conditional approvals.

EPA anticipates full start-up of both programs in October of 1997.

Delaware's I/M program enhancements have been implemented since January

of 1995.

The following comments were submitted by MDE. In those places where

clarification or background on a comment is necessary in order to

understand the comment, EPA has summarized what the state is required

to do as a condition of the rulemaking:

Comment #3: In the notice of proposed rulemaking, EPA cited a

deficiency under 40 CFR 51.350 regarding the interpretation of

Maryland's enabling legislation to run the inspection & maintenance

program. As a condition for approval, EPA stated that Maryland must

either provide an opinion from the State Attorney General's Office that

offers the State's interpretation on the sunset date as being no

earlier than November 15, 2005; or in the absence of such an opinion,

provide EPA with new legislative authority that allows for such an

extended sunset date for the program.

MDE commented that it maintains that legal authority exists for the

program to continue for so long as is required by federal law, and that

the sunset provision allows for the State to revisit the program and

enact any needed legislative actions at the time of program extension.

However, MDE has committed to asking the Attorney General's Office for

a confirmation of the matter.

Response #3: Despite MDE's comment, EPA still needs confirmation

from the State's Attorney General on this subject, as conditioned in

the notice of proposed rulemaking. As specified in the notice, if the

Attorney General, the state official authorized to interpret state law,

does not hold a similar interpretation of the statute, new legislative

authority will be required.

Comment #4: MDE commented that EPA and MDE need to reach agreement

on whether all of the procedures and assumptions used in Maryland's

modeling demonstration, for fulfillment of the requirements under 40

CFR 51.351 of the I/M rule, were appropriate and consistent with EPA

regulations and guidelines. MDE may require clarification on some

issues since EPA policy has been changing in response to evolving

technology (e.g., recent developments in evaporative system testing).

Maryland expects confirmation that I/M modeling and program

requirements are being equitably applied to all states.

Response #4: EPA will continue to work with MDE with regard to the

appropriate assumptions and inputs for the modeling of the performance

standard demonstration. For clarification regarding EPA's policy on

evaporative testing, MDE should refer to guidance issued on November 5,

1996, entitled, I/M Evaporative Emissions Tests, and December 23, 1996

guidance, entitled, I/M Evaporative Emissions Tests--An Addendum, which

outline EPA's current testing and modeling methodologies.

EPA hereby confirms that I/M program and modeling requirements are

being equitably applied to all states, and further verifies that

Maryland is not being held to a higher standard for purposes of

modeling the program performance standard.

Comment #5: MDE will provide an explanation of how subject vehicles

in the program area are identified. MDE also requests clarification and

guidance from EPA on the requirements for identification of vehicles

routinely operated in, but not necessarily registered in the program

area.

Response #5: EPA anticipates clarification from MDE as to how

vehicles operating on Federal Facilities will be identified, and the

protocol that

[[Page 40940]]

will be used by the State in order to assure that vehicles operating on

federal installations are covered by the program. In addition, EPA will

provide MDE with additional guidance on the identification of other

vehicles routinely operated, but not registered in the program area

(i.e. rental vehicles, fleet vehicles, etc).

Comment #6: MDE commented that its regulations specifically

prohibit the inspection contractor from performing emissions-related

repairs. Since the inspection contractor is the only entity performing

initial tests in Maryland, the State believes this requirement has been

satisfied. Further, Maryland questions the applicability of this

requirement to a centralized I/M program.

Response #6: Under 40 CFR 51.357 of the I/M rule, initial tests

must be performed without repair or adjustment at the inspection

facility, prior to the test. EPA agrees with MDE's comment, and

believes that since the inspection contractor is prohibited from

performing emissions-related repairs under the State's regulation, that

this requirement of the federal regulation has been satisfied.

Comment #7: Also under 40 CFR 51.357, EPA has conditioned approval

of the I/M program on MDE's providing EPA with all applicable State

regulations addressing the testing of vehicles with switched engines,

and vehicles with no certified engine configuration. MDE commented that

its State's laws and regulations prohibit tampering and the applicable

sections will be provided to EPA confirming that this section of the

federal I/M rule has been fulfilled.

Response #7: Based on Maryland's response, no changes are necessary

to this part of the condition. EPA anticipates documentation from the

state to be provided. EPA reiterates that the State should specifically

delineate the areas of its anti-tampering laws and regulations that

address engine switching and testing of vehicles with no certified

engine configuration.

Comment #8: Under 40 CFR 51.360, EPA asked Maryland to fully

document the criteria that will be used in the State for granting

hardship exemptions or extensions for the program. MDE commented that

Maryland will continue its current practice of granting short

extensions for persons whose financial situations do not allow for

repairs to be conducted immediately. Maryland will provide a

description of this practice to EPA.

Response #8: EPA accepts MDE's above explanation as sufficient for

fulfilling this condition, so long as a ``short'' extension period is

clearly defined and reasonable to EPA. EPA awaits MDE's description of

its practice, consistent with this response.

Comment #9: MDE will provide EPA with a description of Maryland's

program to handle out-of-state exemptions, and MDE's mechanism to

enforce vehicle transfer requirements when motorists move into the I/M

area. MDE will also provide documentation on the citing of motorists

for noncompliance with the vehicle registration requirement. MDE also

reiterated its need for further guidance from EPA on how to identify

vehicles operating in, but not registered in an I/M area.

Response #9: EPA anticipates the documentation referred to by MDE

for out-of-state exemptions, and for noncompliance citations. Please

see Comment 5 for EPA's response on MDE's guidance request.

Comment #10: MDE will provide EPA with clarification on the State's

practice of vehicle impoundment when a motorist is cited for driving

with a suspended registration.

Response #10: EPA anticipates this documentation.

Comment #11: MDE commented that Maryland will continue to use its

system of month/year registration stickers as a visible means of

compliance with registration in the State. MDE will alert EPA if any

changes to this procedure occur in the future.

Response #11: EPA accepts MDE's discussion on this procedure, and

no further action is required of MDE with respect to this aspect of the

condition.

Comment #12: MDE requests additional information and guidance from

EPA as to exactly what exemption triggering elements need examination.

Response #12: EPA needs confirmation from MDE that any exemptions

that would allow vehicles to by-pass an inspection test, such as the

diesel exemption and the electric car exemption, are either checked by

confirmation of the VIN, or by physical examination of the vehicle. If

VIN records cannot confirm exemption status of the vehicle, MDE should

confirm the exemption by physically examining the vehicle before the

exemption is granted.

Comment #13: MDE questions the applicability of some or all of the

requirements under 40 CFR 51.362 of the federal I/M rule to a

registration-based enforcement program. EPA has asked Maryland to

demonstrate that an acceptable enforcement program exists, and that

this program should include the procedures used for auditing the

program and a penalty schedule for missing documentation from the

program's inspection stations.

Response #13: EPA views the requirements under this section as

appropriate and reasonable measures that states are required to

implement in both centralized and decentralized I/M programs. The

intent of this section of the I/M rule is to control and eliminate

fraudulent acts by those most closely responsible for implementation of

the I/M program. In Maryland's specific situation, these requirements

are meant to provide another means of verifying proper conduct by the

State's contractor, and its employees, who are responsible for dealing

with customers in the inspection lanes. EPA expects that Maryland will

fulfill this condition, as described in the NPR.

Comment #14: MDE commented that it has instituted an auditing

program that is likely the costliest and strictest in the nation. MDE

will provide a description to EPA.

Response #14: EPA anticipates MDE's description of its auditing

program.

Comment #15: MDE will review its enforcement authority under its

contract with the inspection contractor and provide EPA with

information regarding the penalty structure set up to make sure the

contractor is in compliance with the State's regulations.

Response #15: EPA anticipates this documentation from the State.

Comment #16: Maryland will ensure that the inspector certification

program includes recertification requirements. Maryland proposes to

accomplish this administratively, rather than by adopting regulations.

Response #16: EPA accepts Maryland's proposal for fulfilling this

requirement; however, MDE must provide EPA with the administrative

procedures manual, or description of this practice as part of the SIP

support material, in order to comply with this requirement for approval

purposes. Recertification need not be done through regulation, but must

be an explicit, enforceable SIP requirement.

Comment #17: In response to EPA's condition under 40 CFR

Sec. 51.368, Maryland will review the State provision for protection of

whistle blowers and provide the information to EPA. With regard to

public complaints, Maryland is very responsive to all complaints

received and provides prompt investigation and corrective action as

required. The State will document this aspect of the program in the

form of a complaint response plan.

Response #17: EPA anticipates MDE's response to this condition.

Comment #18: MDE commented that a copy of the final regulation

revision

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and documentation of the public hearing process will be submitted to

EPA.

Response #18: EPA anticipates receipt of this documentation.

Comment #19: MDE commented that confounding factors in the State

could potentially affect the current program start-up schedule,

previously slated for June 1, 1997.

Response #19: EPA recognizes that potential problems with the

State's program and its contractor may affect timely implementation of

the program. As is stated in the NPR, Maryland must start mandatory

testing of all subject vehicles as soon as possible or by November 15,

1997 at the latest.

Comment #20: Maryland does not understand the rationale for

requiring a county-by-county analysis of the performance standard. MDE

states that the federal I/M rule requires that ``Areas shall meet the

performance standard for the pollutants which cause them to be subject

to enhanced I/M requirements.'' Since its inclusion in the Ozone

Transport Region causes Maryland to be subject to enhanced I/M

requirements, Maryland believes that the EPA rule should be interpreted

to treat the I/M counties as one area in calculating emissions factors

relative to the performance standard.

Response #20: EPA agrees with MDE's interpretation of this

requirement, and will allow MDE to submit an amalgamated performance

standard analysis.

Comment #21: In the Technical Support Document, EPA explained that

MDE must use the default compliance rate of 96% for modeling purposes,

or provide EPA with documentation supporting the 100% rate used in its

current analysis. MDE responded that it believes documentation

supporting a compliance rate greater than 96% can be provided to EPA.

Response #21: EPA welcomes such supporting documentation from the

State, and advises MDE to use whatever the appropriate compliance rate

is, as supported by State-generated evidence.

Comment #22: Maryland commented that it believes that it followed

EPA guidance in calculating RSD reductions. Maryland does not know of

any requirement to ``subtract out'' the minimum RSD component in

calculating RSD credits for an I/M program.

Response #22: MDE should refer to EPA's guidance on RSD credit

issuance, User Guide and Description for Interim Remote Sensing Program

Credit Utility. As is stated in this guidance, programs can only

receive extra credit for a remote sensing component if the State's

program goes above and beyond what is already required in the federal

I/M rule. EPA is not requiring MDE to ``subtract out'' the minimum RSD

component. Rather, EPA is stating that additional credit for a remote

sensing program will only be granted if the State follows the EPA

guidance and institutes testing above and beyond what is already

required in the federal I/M rule. A state such as Maryland, that is

only complying with the minimum on-road testing requirements, as

explained at 40 CFR 51.371, is not eligible for more credit under the

performance standard. Should MDE chose to expand its RSD component,

additional credit could be claimed, as explained in the above-named

guidance document.

Comment #23: MDE commented that it commits to adopting and using

EPA non-invasive pressure testing procedures when they become

available, and MDE will therefore take full credit for pressure testing

in the performance standard. MDE will revise the SIP revision language

to reflect this commitment.

Response #23: In June of 1996, EPA issued draft technical guidance

which included draft procedures and specifications for a fuel-fill pipe

pressure test. EPA will soon issue final, revised technical guidance on

the fuel-fill pipe pressure procedures, and expects that Maryland will

adopt this test under the above referenced commitment, and use this

``non-invasive'' procedure to test the integrity of the vehicle's fuel

system. MDE should refer to the High-Tech I/M Test Procedures, Emission

Standards, Quality Control Requirements, and Equipment Specifications:

IM240 and Functional Evaporative System Tests, (Revised Technical

Guidance, DRAFT), dated June 1996, the November 5, 1996 memo from Margo

Oge, I/M Evaporative Emissions Tests, and the December 23, 1996 memo

from Leila Cook, I/M Evaporative Emissions Tests--An Addendum. EPA also

cautions the state that the full pressure test must be in place for at

least one full test cycle before the evaluation year, in order for MDE

to take credit for 100% pressure credit in modeling the performance

standard.

Comment #24: MDE would like clarification from EPA as to whether

the requirements of 40 CFR 51.355--Test Frequency & Convenience--have

been met. It is noted that EPA did not cite any deficiencies in the NPR

for this section, however, the TSD did include a discussion on

Maryland's enforcement system safeguards, and the need for further

action by the state with respect to the penalty for noncompliance with

the program.

Further, MDE commented that it is unclear as to whether EPA expects

MDE to correct another deficiency cited in the TSD under this section,

but not in the NPR. In the TSD, EPA stated that it was unclear from

Maryland's regulations whether or not the inspection contractor is

required to give out-of-cycle inspections to those other than used

vehicle dealers, or new residents of the State. This was cited as a

deficiency in the TSD, but not the NPR.

Response #24: As is mentioned in the TSD discussion on this

section, this problem is also addressed under the Motorist Compliance

Enforcement Section--40 CFR 51.361. In the NPR, EPA chose not to

duplicate conditions relating to the same failure, even though the TSD

may have discussed the same problem under multiple sections. EPA does

have a condition relating to the cited failure on enforcement

safeguards and penalties (as discussed in the TSD and reiterated by MDE

in its comment letter), however, MDE should address this deficiency

under the Motorist Compliance Enforcement Section.

With respect to out-of-cycle testing, EPA did not place a condition

on the State to make a correction for this TSD-cited deficiency.

Furthermore, EPA here clarifies that the TSD erroneously stated that

provisions need to be made to test these types of vehicles. In fact,

EPA's regulation requires only that stations be required to adhere to

regular testing hours and to test any subject vehicle presented for a

test during its test period. EPA believes this requirement has been met

by the State's SIP revision.

Therefore, for the purposes of this rulemaking, MDE does not have

any conditions placed on the State under 40 CFR 51.355, and no remedy

is required by the State under this section.

Comment #25: MDE has requested clarification of the requirements

under 40 CFR 51.356 for SIP approval. Specifically, clarification is

requested regarding the I/M rule requirement that the program provide

for allowing inspections of vehicles registered in other program areas,

and for issuance of certificates of compliance or waiver.

Response #25: As stated in the TSD, EPA could not find any

provisions in the SIP that explicitly allow for inspections of vehicles

outside of the program area, and for the issuance of certificates of

compliance or waiver. However, since EPA understands that Maryland is

investigating the idea of reciprocity with surrounding states for

purposes of compliance with the program requirements, EPA assumes that

Maryland intends on extending the

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option of out of state inspections to those requesting it. For the

purposes of rulemaking, EPA has not placed any conditions on the State

therefore, with respect to this component of the I/M program at this

time. If however EPA discovers problems with the reciprocity issue in

the future, EPA will commence a SIP call to remedy this problem.

Comment #26: Also under 40 CFR 51.356, MDE would like clarification

as to what is required in order to meet the federal fleet installations

testing requirement. MDE will provide an update on the discussions with

US GSA and US DoD, however, MDE would like to know what further is

required for SIP approval.

Response #26: The TSD states that Maryland's SIP revision does not

speak to the requirement that specifically the Federal installation

managers show proof of inspection for all Federal employee-owned

vehicles operated on the installation. However, the Maryland SIP

revision does state that ``the federal agency has the responsibility of

ensuring that its employees comply, with MVA's guidance.'' EPA believes

that this statement satisfies this intent of this section of the rule,

and no further action is required by MDE in order for SIP approval. EPA

would however, welcome any further information that the Department can

provide with respect to federal fleet testing issues, specifically

relating to discussions with US GSA and US DoD. EPA here notes that the

District of Columbia is also engaging US GSA and US DoD in discussions

on fleet testing in the Washington Metropolitan area, and that it may

be instructive for Maryland, the District of Columbia and the

Commonwealth of Virginia to engage in these discussions together at

this time.

Comment #27: MDE has also asked for clarification under 40 CFR

51.356, as to what is required for SIP approval in relation to special

exemptions. MDE noted that it will quantify the special exemptions

extended to motorists under the VEIP program, however, MDE would like

clarification as to what is required for SIP approval.

Response #27: EPA anticipates MDE's clarifications of the special

exemptions categories, and believes that this clarification can be made

under the enhanced performance standard section, 40 CFR 51.351. There

are no further SIP requirements for special exemptions, provided that

the program meets the performance standard, taking exemptions into

account.

Comment #28: MDE commented that under 40 CFR 51.358, it has

satisfied the dual exhaust sampling requirements. In the TSD, EPA cited

a deficiency for this section, stating that the SIP does not contain

provisions for sampling dual exhaust vehicles. MDE cited Appendix G of

SIP revision 95-06, page RFP38.

Response #28: EPA has reviewed the cite provided by MDE and concurs

that the simultaneous testing requirement has indeed been met under the

SIP. EPA notes that the TSD will be amended to correct this oversight,

however no conditions are affected since none were cited in the NPR for

this element.

Comment #29: MDE has asked for clarification under 40 CFR 51.358 as

to whether or not the SIP is deficient with respect to the requirement

to update test equipment to accommodate new technology vehicles and

changes to the program. Under this section of the TSD, EPA commented

that the SIP does not appear to address this element. However the NPR

cites this requirement as being met through the annual reporting

requirement.

Response #29: EPA believes that the above reference requirement has

been met by Maryland through its annual reporting requirement, as found

in the SIP revision under Section II.P.2.. EPA will amend the TSD to

reflect this, however, no changes will be made to the NPR conditions,

since none were imposed under this section.

Comment #30: MDE commented that the NPR discussion under 40 CFR

51.358 notes that all requirements of this section are approvable,

however, the TSD notes that Quality Assurance requirements and

procedures for the evaporative system functional test equipment are not

included in the SIP revision. MDE further commented that it will

provide EPA with the appropriate requirements and procedures when EPA

approved specifications for the pressure test become available.

Response #30: EPA expects that the requirements under this section

will be met when the state is able to provide revised pressure testing

procedures for the SIP. MDE can fulfill the Quality Assurance

requirements for the pressure test specifications when the pressure

test specification is approved by EPA, adopted by Maryland and

submitted to EPA as a revision to the SIP.

Comment #31: MDE would like clarification as to whether or not a

deficiency exists with respect to counterfeit resistancy of vehicle

inspection reports. No deficiency was cited in the NPR, however, the

TSD reported that Maryland does not have a specific requirement aimed

at making documents counterfeit resistant, and that the program

certificates do not carry an official seal. MDE further commented that

this requirement should not be applicable to a state with registration

denial as the enforcement mechanism.

Response #31: As is cited in the NPR, EPA believes that Maryland

has an adequate measure to ensure counterfeit resistance, i.e., unique

identification numbers given on each Vehicle Inspection Report (VIR),

coupled with accountability of the lane inspectors for each numbered

VIR. EPA notes that the official seal requirement has not been met by

the state, however, EPA believes the unique serial number method is

adequate for maintaining counterfeit resistantancy. EPA also concurs

with MDE's assessment regarding applicability of this requirement

(i.e., offical seal) to programs using registration denial. Nothing

further is required by the state in order to meet this section of the

rule.

Comment #32: MDE commented that the TSD cites a deficiency

regarding ensuring that compliance documents cannot be stolen or

removed without being damaged. The NPR does not cite such deficiency.

MDE would like clarification as to what is required of Maryland to

comply with this section. Further MDE questioned the applicability of

this section to a program using registration denial as the enforcement

mechanism.

Response #32: EPA concurs with MDE's assessment regarding

applicability of this requirement to programs using registration

denial. Nothing further needs to be done by the state to meet the

requirements of this section.

Comment #33: MDE commented that under the section relating to

Waivers and Compliance via Diagnostic Inspections (40 CFR 51.360), all

of the vehicles that are the subject of extensions for the program are

actually inspected in the biennial test cycle and neither the

compliance rate, nor emissions reductions are affected by this

practice. Maryland requests clarification regarding what deficiency, if

any exists for this section.

Response #33: EPA agrees with MDE's rationale regarding compliance

rate calculations, and emissions reductions. EPA further accepts MDE's

clarification contained in its comment letter, that hardship extensions

do not actually constitute compliance waivers from the program, and

therefore do not excuse the motorist from meeting the requirements of

the program, but merely extend the amount of time afforded to the

motorist for compliance with the program. EPA accepts this explanation

as sufficient for purposes of satisfying this condition under this

section of the rule. No further documentation needs to be provided by

MDE for this condition.

[[Page 40943]]

Comment #34: MDE commented that the TSD cites the quality control

section of waiver issuance as being unapprovable. MDE requests

clarification from EPA regarding this TSD cited deficiency.

Response #34: EPA has reviewed the TSD and believes this citation

of a deficiency is a typographical error. EPA will amend the TSD to

reflect an approvable citation for this requirement. EPA notes that no

change is necessary for the NPR, since no condition was cited for this

section.

Comment #35: MDE commented that it will address the evaporative

system total purge flow check when the evaporative system tests are

implemented. MDE requests that EPA clarify what is required under this

section for approval.

Response #35: EPA noted in the TSD that the purge system pass/fail

results did not include the evaporative test total purge flow achieved

during the test. However, EPA did not cite this as a deficiency in the

NPR since MDE has committed to changing its purge specifications when

EPA makes non-invasive purge procedures available. EPA will reassess

the requirements of this section when the non-invasive procedures

become available. This requirement may or may not be a part of the

revised non-invasive testing specifications, and so EPA did not cite a

lack of this data as a deficiency at this time. EPA will clarify what

exactly is required when non-invasive specifications become available,

and MDE is instructed to consult EPA guidance on pressure testing

specifications for SIP revision purposes.

Comment #36: MDE notes that the NPR cites all requirements of 40

CFR 51.370 as having been met. However, the TSD cites a deficiency with

regard to recall campaign number for vehicles with unresolved recalls.

MDE wants clarification as to whether this is a SIP deficiency, and

what is required of Maryland under this section. MDE further requests

guidance from EPA on complying with the recall provisions of the I/M

rule.

Response #36: MDE should ensure that the data system includes the

recall campaign number for vehicles with unresolved recalls, however,

under the NPR, no further documentation needs to be submitted to EPA to

demonstrate that this requirement has been met at this time, and no

condition has been placed on the State for this deficiency since

guidance does not currently exist on how to accomplish this task at

this time. EPA will assist MDE in developing methods for ensuring that

this data be included in Maryland's system in the future.

III. Conditional Approval

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

conditional approval rulemaking (61 FR 56183), Maryland was required to

make commitments to remedy deficiencies with the I/M program SIP (as

specified in the above notice) within twelve months of the effective

date of today's final conditional approval notice. On December 23,

1996, Jane T. Nishida, Secretary of the MDE, submitted a letter to

David L. Arnold, Chief, Ozone/CO and Mobile Source Section, EPA Region

III, committing to address and correct, by a date certain, all of the

deficiencies listed in EPA's October 31, 1996 NPR.

Because Maryland has submitted the commitment letter called for in

EPA's October 31, 1996 NPR, EPA is today taking final conditional

approval action upon the Maryland I/M SIP, under section 110 of the

CAA.

IV. Final Rulemaking Action

EPA is conditionally approving Maryland's enhanced I/M program as a

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

State fail to fulfill the conditions by the deadline of no more than

one year from September 29, 1997, this conditional approval will

convert to a disapproval pursuant to CAA section 110(k). In that event,

EPA would issue a letter to notify the State that the conditions had

not been met, and that the approval had converted to a disapproval.

V. 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 delegated to the Regional Administrator for

decision-making and signature. The Office of Management and Budget

(OMB) has exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

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

must prepare a regulatory flexibility analysis assessing the impact of

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

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

significant impact on a substantial number of small entities. Small

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

and government entities with jurisdiction over populations of less than

50,000.

Conditional approvals of SIP submittals under section 110 and

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

simply approve requirements that the State is already imposing.

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

requirements, EPA certifies that it does not have a significant impact

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

Federal-State relationship under the CAA, preparation of a flexibility

analysis would constitute Federal inquiry into the economic

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

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

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

If the conditional approval is converted to a disapproval under

section 110(k), based on the State's failure to meet the commitment, it

will not affect any existing state requirements applicable to small

entities. Federal disapproval of the state submittal does not affect

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

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

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

substantial number of small entities because it does not remove

existing requirements nor does it substitute a new federal requirement.

C. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

final rule 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.

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EPA has determined that the conditional approval action promulgated

does not include a Federal mandate that may result in estimated costs

of $100 million or more to either State, local, or tribal governments

in the aggregate, or to the private sector. This Federal action

approves pre-existing requirements under State or local law, and

imposes no new requirements. Accordingly, no additional costs to State,

local, or tribal governments, or to the private sector, result from

this action.

D. Submission to Congress and the General Accounting Office

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

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

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

the U.S. House of Representatives and the Comptroller General of the

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

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

E. Petitions for Judicial Review

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

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

of Appeals for the appropriate circuit by September 29, 1997.

Filing a petition for reconsideration by the Administrator of this

final rule to conditionally approve the Maryland enhanced I/M SIP 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, Nitrogen dioxide, Ozone, Reporting and record keeping

requirements.

Dated: July 18, 1997.

Thomas Voltaggio,

Acting Regional Administrator, Region III.

Chapter I, title 40, of the Code of Federal Regulations is amended

as follows:

PART 52--[AMENDED]

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

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

Subpart V--Maryland

2. Section 52.1072 is added to read as follows:

Sec. 52.1072 Conditional approval.

(a) The State of Maryland's July 11, 1995 submittal for an enhanced

motor vehicle inspection and maintenance (I/M) program, and the March

27, 1996 amendment to the original SIP revision is conditionally

approved based on certain contingencies. The following conditions

listed in paragraphs (a)(1) through (a)(15) of this section must be

addressed in a revised SIP submission. Along with the conditions listed

in paragraphs (a)(1) through (a)(15) of this section is a separate

detailed I/M checklist explaining what is required to fully remedy the

deficiencies found in the proposed notice of conditional approval. This

checklist is found in the Technical Support Document (TSD), located in

the docket of this rulemaking, that was prepared in support of the

proposed conditional I/M rulemaking action for Maryland. By no later

than one year from September 29, 1997, Maryland must submit a revised

SIP that meets the following conditions for approvability:

(1) Fully adopt and submit to EPA as a SIP revision, final

regulations and documentation of the public hearing process addressing

Maryland's March 27, 1997 amendment to the SIP pertaining to proposed

regulatory changes to the VEIP, as a result of the flexibility afforded

to Maryland from federal and state legislative changes.

(2) Provide confirmation from the State Attorney General's Office

clearly stating that Maryland's interpretation of the sunset date of

the program is no earlier than November 15, 2005, or in the absence of

such an opinion, submit to EPA new legislative authority allowing for

such an extended sunset date of the program.

(3) Submit to EPA a modeling demonstration of the program using the

appropriate assumptions and methodology (see TSD and the Response to

Public Comments section of this rule for detailed discussions)

demonstrating compliance with the I/M performance standard for the

years 2002 and 2005 (excluding the year 1999, as recommended by EPA).

(4) Obtain and/or demonstrate to EPA that adequate funding and

tools exist for the years 1997 and 1998, including a detailed

explanation of the number of personnel dedicated to quality assurance,

data analysis, program administration, and enforcement. In addition,

Maryland needs to provide budget allotments for equipment resources.

EPA notes that an update of the budget information is adequate to

satisfy this condition.

(5) Provide an explanation to EPA of how all subject vehicles in

the program will be identified, which includes an estimate of the

number of unregistered vehicles operated in the program area.

Subsequent to EPA issuing guidance, Maryland needs to document how

vehicles that are routinely operated in the program but not registered

in the program area are identified.

(6) Provide to EPA applicable sections of state laws and

regulations specifically addressing engine switching and testing of

vehicles with no certified engine configuration. Maryland needs to

commit to adopting non-invasive purge test procedures when EPA

specifications become available. In addition, EPA expects Maryland to

submit written procedures for the gas-cap check and to adopt the non-

invasive fuel-fill pipe pressure specifications and procedures when EPA

issues the final technical guidance.

(7) Submit to EPA written specifications for the gas cap check

procedures referenced in Maryland's regulations.

(8) Provide to EPA a description of how Maryland's current practice

of issuing short term extensions because of economic hardship is

granted, which reasonably and clearly defines the time frame of the

extension period.

(9) Submit to EPA documentation of how Maryland will handle out-of-

state exemptions, employ mechanisms to enforce vehicle transfer

requirements when owners move into the program area, and cite motorists

for noncompliance with the registration requirement. Maryland will need

to clarify its practice on vehicle impoundment when a motorist is cited

for driving with a suspended registration. In addition, EPA needs

verification on vehicle exemption triggering elements which allow the

subject vehicle to by-pass an inspection test. Confirmation by VIN

check or physical examination of the subject vehicle needs to be

included in the SIP revision, as a means of ensuring validation of the

exemption triggering elements.

(10) Demonstrate to EPA that enforcement program oversight is

quality controlled and quality assured. Maryland needs to provide a

procedures document that details the specifics of the implementation of

the enforcement program oversight including information management

activities, activities of enforcement involved in

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monitoring the program, and auditing the enforcement. Quality control

and assurance needs to address penalty structures, periodic auditing

and analysis, program effectiveness, and in use fleet compliance via

parking lot surveys and road side pullovers.

(11) Provide a description to EPA of Maryland's auditing program

that will include a minimum number of covert vehicles that are used for

auditing purposes, covert and overt performance audits of inspectors,

audits of stations and inspectors records, equipment audits, and formal

training of all state I/M enforcement officials and auditors.

(12) Submit to EPA documentation regarding the set up of Maryland's

penalty structure used to ensure the contractor is in compliance with

State regulations. The penalty schedule must be applied to the

contractor, stations, and inspectors. Information should include

administrative & judicial responsibilities & procedures, and a

description of the funding allocations.

(13) Submit to EPA an administrative procedures manual or

description of the practice of inspector recertification which must

occur at least every two years.

(14) Submit to EPA State regulations documenting provisions for the

protection of whistle blowers. In addition, Maryland needs to provide

documentation of how it investigates and responds to complaints made by

the public.

(15) Maryland must start mandatory testing of all subject vehicles

as soon as possible, or by November 15, 1997 at the latest.

(b) [Reserved]

[FR Doc. 97-20219 Filed 7-30-97; 8:45 am]

BILLING CODE 6560-50-P