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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA014-7195b; FRL-5682-1]

Approval and Promulgation of Air Quality Implementation Plans;

Massachusetts: Enhanced Motor Vehicle Inspection and Maintenance

Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed interim rule.

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SUMMARY: EPA is proposing a conditional interim approval and in the

alternative, disapproval of a State Implementation Plan (SIP) revision

submitted by the Commonwealth of Massachusetts on March 27, 1996. This

submittal is a supplement to the original enhanced inspection and

maintenance submittal by the Commonwealth of Massachusetts on December

23, 1994. This revision establishes and requires the implementation of

a statewide enhanced inspection and maintenance (I/M) program. EPA is

proposing a conditional approval because the Commonwealth's SIP

revision is deficient with respect to several requirements of the CAA

and/or EPA's I/M program regulatory requirements.

DATES: Comments must be received on or before March 3, 1997.

ADDRESSES: Comments may be mailed to Susan E. Studlien, Deputy

Director, Office of Ecosystem Protection (CAA), United States

Environmental Protection Agency, JFK Federal Building, Boston, MA

02203. Copies of the documents relevant to this action are available

for public inspection by appointment during normal business hours at

the U.S. EPA, One Congress Street, Boston MA 02203.

FOR FURTHER INFORMATION CONTACT: Peter X. Hagerty, (617) 565-3571.

I. Background

A. Impact of the National Highway System Designation Act on the Design

and Implementation of Enhanced Inspection and Maintenance Programs

Under the Clean Air Act

The National Highway System Designation Act of 1995 (NHSDA)

establishes two key changes to the enhanced I/M rule requirements

previously developed by EPA. Under the NHSDA, EPA cannot require states

to adopt or implement centralized, test-only IM240 enhanced vehicle

inspection and maintenance programs as a means of compliance with

section 182, 184 or 187 of the CAA. Also under

[[Page 4506]]

the NHSDA, EPA cannot disapprove a state SIP revision, nor apply an

automatic discount to a state SIP revision under section 182, 184 or

187 of the CAA, because the I/M program in such plan revision is

decentralized, or a test-and-repair program. Accordingly, the so-called

``50% credit discount'' that was established by the EPA's I/M Program

Requirements Final Rule, (published November 5, 1992, and herein

referred to as the I/M Rule) has been effectively replaced with

presumptive equivalency criteria which place the emission reductions

credits for decentralized networks on a par with credit assumptions for

centralized networks, based upon a state's good faith estimate of

reductions as provided by the NHSDA and explained below in this

section.

EPA's I/M Rule established many other criteria unrelated to network

design or test type for states to use in designing enhanced I/M

programs. All other elements of the I/M Rule, and the statutory

requirements established in the CAA continue to be required of those

states submitting I/M SIP revisions under the NHSDA, and the NHSDA

specifically requires that these submittals must otherwise comply in

all respects with the I/M Rule and the CAA.

The NHSDA also requires states to swiftly develop, submit, and

begin implementation of these enhanced I/M programs since the

anticipated start-up dates developed under the CAA and EPA's rules have

already been delayed. In requiring states to submit these plans within

120 days of the NHSDA passage, and in allowing these states to submit

proposed regulations for this plan (which can be finalized and

submitted to EPA during the interim period) it is clear that Congress

intended for states to begin testing vehicles as soon as practicable,

now that the decentralized credit issue has been clarified and directly

addressed by the NHSDA.

Submission criteria described under the NHSDA allow for a state to

submit proposed regulations for this interim program, provided that the

state has all of the statutory authority necessary to carry out the

program. Also, in proposing the interim credits for this program,

states are required to make good faith estimates regarding the

performance of their enhanced I/M program. Since these estimates are

expected to be difficult to quantify, the state need only provide that

the proposed credits claimed for the submission have a basis in fact. A

good faith estimate of a state's program may be an estimate that is

based on any of the following: the performance of any previous I/M

program; the results of remote sensing or other roadside testing

techniques; fleet and vehicle miles traveled (VMT) profiles;

demographic studies; or other evidence which has relevance to the

effectiveness or emissions reducing capabilities of an I/M program.

This action is being taken under the authority of both the NHSDA

and section 110 of the CAA. Section 348 of the NHSDA expressly directs

EPA to issue this interim approval for a period of 18 months, at which

time the interim program will be evaluated in concert with the

appropriate state agencies and EPA. At that time, the Conference Report

on section 348 of the NHSDA states that it is expected that the

proposed credits claimed by the state in its submittal, and the

emissions reductions demonstrated through the program data may not

match exactly. Therefore, the Conference Report suggests that EPA use

the program data to appropriately adjust these credits on a program

basis as demonstrated by the program data.

Furthermore, EPA believes that in taking action under section 110

of the CAA, it is appropriate to grant a conditional approval to this

submittal since there are some deficiencies with respect to CAA

statutory and regulatory requirements (identified herein) that EPA

believes can be corrected by the state during the interim period.

B. Interim Approvals Under the NHSDA

The NHSDA directs EPA to grant interim approval for a period of 18

months to approvable I/M submittals under this Act. This Act also

directs EPA and the states to review the interim program results at the

end of 18 months, 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 sufficient

operational program data can be collected to evaluate the interim

program. EPA believes that in setting such a strict timetable for

program evaluations under the NHSDA, that Congress recognized and

attempted to mitigate any further delay with the start-up of this

program. For the purposes of this program, ``start-up'' is defined as a

fully operational program which has begun regular, mandatory

inspections and repairs, using the final test strategy and covering

each of a state's required areas. EPA proposes that if the state fails

to start its program on schedule, the 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. EPA anticipates that such a

program evaluation process will be developed by the Environmental

Council of States (ECOS) group that is convening now and that was

organized for this purpose. EPA further anticipates that in addition to

the interim, short term evaluation, the state will conduct a long term,

ongoing evaluation of the I/M program as required by the I/M Rule in

Secs. 51.353 and 51.366.

C. Process for Full Approvals of This Program Under the CAA

As per the NHSDA requirements, this interim rulemaking will expire

within 18 months of the final interim approval, or the date of final

full approval. A full approval of the state's final I/M SIP revision

(which will include the state'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 state's

submitted program evaluation, final rulemaking on the state's full SIP

revision will occur.

II. EPA's Analysis of Massachusetts's Submittal

On March 27, 1996, Massachusetts Department of Environmental

Protection (DEP) submitted a revision to its State Implementation Plan

(SIP) for an enhanced I/M program to qualify under the NHSDA. The

revision consists of enabling legislation that will allow the

Commonwealth to implement the I/M program, proposed regulations, a

description of the I/M program (including a modeling analysis and

detailed description of program features), and a good faith estimate

that includes the Commonwealth's basis in fact for emission reductions

claims of the program. The Commonwealth's credit assumptions were based

upon the removal of the 50% credit discount for all portions of the

program that are based on a test-and-repair network, and the

application of the Commonwealth's own estimate of the effectiveness of

its hybrid test-and-repair program. The State has submitted three

supplemental letters to EPA on September 17, 1996,

[[Page 4507]]

November 21, 1996 and November 27, 1996.

A. Analysis of the NHSDA Submittal Criteria

Transmittal Letter

On March 27, 1996, Massachusetts submitted an enhanced I/M SIP

revision to EPA, requesting action under the NHSDA of 1995 and the CAA

of 1990. The official submittal was made by the appropriate

Commonwealth official, Mr. David Struhs, Commissioner of the Department

of Environmental Protection, and was addressed to John DeVillars,

Regional Administrator, the appropriate EPA official in the Region.

Enabling Legislation

The Commonwealth of Massachusetts has legislation, at M.G.L.c.21A

and M.G.L.c.111. paragraph 142A-D, 142J, and 142M, enabling the

implementation of an enhanced IM program.

Proposed Regulations

On March 27, 1996, the Commonwealth of Massachusetts proposed

regulations in accordance with 40 CFR Part 51, establishing an enhanced

I/M program. The regulations call for implementation of a hybrid

enhanced I/M program starting in 1997, with the installation of new

emission analyzers connected to a central computer and installation of

dynamometers in 1999, with final cut points being implemented in 2001.

The Commonwealth did not specify when the regulations will be adopted.

Since in a letter dated September 17, 1996, Massachusetts has committed

to start a full enhanced I/M program with dynamometer testing by

November 15, 1997 or by January 1998 at the latest, then EPA can

propose interim, conditional approval of the proposed Commonwealth

regulations. These regulations must be adopted by the Commonwealth and

submitted to EPA before final full approval of the I/M program.

Program Description

The program calls for biennial transient testing in either test-

only or test-and-repair facilities. The test equipment will be either

IG240 or RG240 connected to a contractor operated central computer. The

program evaluation year is 2002. Massachusetts will have a systems

contractor operating the central computer network. This contractor will

have the ability to disconnect facilities which are conducting improper

testing. The Commonwealth believes that having numerous dynamometers in

the field in test-and-repair facilities available for diagnostic work

and repair confirmation will significantly improve the quality of

repairs and emission reductions from the program.

Emission Reduction Claim and Basis for the Claim

Massachusetts will rely heavily on a systems contractor to run the

central computer system, monitor all emission testing facilities, and

take action to correct problems. Massachusetts will start transient

emission testing by November 15, 1997, or by January 1998, at the

latest, with a two year inspection cycle. Massachusetts is claiming

full IM240 credit for an IG240 or RG240 program, which is not

consistent with EPA policy as stated in an August 18, 1994, memo on

this subject. Massachusetts has not submitted any other basis in fact

such as data from another program for the credit claim. EPA allows the

use of a 96% compliance rate for a well run enforcement program, while

Massachusetts claims a 98% compliance rate without any additional

measures to justify this higher rate. The Commonwealth has recently

revised the estimated compliance rate to 96%. Massachusetts will not

issue any waivers but will allow ``grace periods'' of unspecified

length. The length of these ``grace periods'' must be defined and the

emission reduction losses included in the emission reduction

calculations. This has been clarified in a letter dated November 27,

1996, from the Commonwealth which stated ``We will incorporate these

modeling changes into the revised 15% plan''. We expect future

submittals from the Commonwealth will incorporate these assumptions.

EPA guidance provides for 100% credit for mechanic training if the

state makes provisions to ensure that only trained mechanics repair

failed vehicles. Massachusetts has assumed 100% mechanic training

credit. However, under the proposed program, although the Commonwealth

will be providing a mechanic training program, no requirement exists to

ensure vehicle owners obtain vehicle repairs by trained technicians.

B. Analysis of the EPA I/M Regulation and CAA Requirements

As previously stated, the NHSDA left those elements of the I/M Rule

that do not pertain to network design or test type intact. Based upon

EPA's review of Massachusetts' submittal, EPA believes the Commonwealth

has not complied with all aspects of the NHSDA, the CAA and the I/M

Rule. For those sections of the I/M rule or of the CAA identified below

with which the Commonwealth has not yet fully complied, EPA proposes to

conditionally approve the SIP if the Commonwealth commits within 30

days of publication of this document to correct said deficiencies by a

date (or dates) certain within 1 year of EPA interim approval.

The Commonwealth must correct these major deficiencies by the date

specified in the commitment or this conditional approval will convert

to a final disapproval under CAA section 110(k)(4). EPA has also

identified certain minor deficiencies in the SIP, which are itemized

below. EPA has determined that delayed correction of these minor

deficiencies will have a de minimis impact on the Commonwealth's

ability to meet clean air goals. Therefore, the state need not commit

to correct those deficiencies in the short term and EPA will not impose

conditions on interim approval with respect to these deficiencies. The

Commonwealth must correct these deficiencies during the 18 month term

of the interim approval, as part of the fully adopted rules that the

Commonwealth will submit to support full approval of its I/M SIP. As

long as the Commonwealth corrects the minor deficiencies prior to final

action on the Commonwealth's full I/M SIP, EPA concludes that failure

to correct the deficiencies in the short term is de minimis and will

not adversely affect EPA's ability to give interim approval to the

proposed I/M program.

Applicability--40 CFR 51.350

Sections 182(c)(3) and 184(b)(1)(A) of the Act and 40 CFR 51.350(a)

require all states in the Ozone Transport Region (OTR) which contain

Metropolitan Statistical Areas (MSAs) or parts thereof with a

population of 100,000 or more to implement an enhanced I/M program.

Massachusetts is part of the OTR and contains the following MSAs or

parts thereof with a population of 100,000 or more: Boston-Lawrence-

Salem, MA-NH CMSA, Providence-Pawtucket-Fall River, RI-MA CMSA, New

Bedford, MSA, Springfield, MSA and Worcester, MSA.

Massachusetts is classified as a serious ozone nonattainment area

statewide and is required to implement an enhanced I/M program per

section 182(c)(3) of the CAA and 40 CFR 51.350(a)(2). In addition, the

Boston area CO maintenance plan includes basic I/M as a control

strategy.

Under the requirements of the Clean Air Act, all counties in

Massachusetts would be subject to I/M program requirements. The

proposed Massachusetts I/M regulation requires that the enhanced I/M

program be

[[Page 4508]]

implemented statewide. As stated in the State submittal, the

Massachusetts I/M legislative authority in M.G.L.c.21A, and

M.G.L.c.111, paragraphs 142A-D, 142J and 142M provide the legal

authority to establish a statewide enhanced program. EPA finds that the

geographic applicability requirements are satisfied. The federal I/M

rule requires that the state program not terminate until it is no

longer necessary. EPA interprets the federal rule as stating that a SIP

which does not sunset prior to the attainment deadline for each

applicable area satisfies this requirement. The Massachusetts submittal

does not address the length of time the program will be in effect. The

program must continue past the attainment dates for all applicable

nonattainment areas in Massachusetts. In the absence of a sunset date,

EPA interprets the SIP submittal as requiring the I/M program to

continue indefinitely, and proposes to approve the program on this

basis. Once approved this unlimited term of the program will be

federally enforceable as a requirement of the SIP.

Enhanced I/M Performance Standard--40 CFR 51.351

The enhanced I/M program must be designed and implemented to meet

or exceed a minimum performance standard, which is expressed as

emission levels in area-wide average grams per mile (gpm) for certain

pollutants. The performance standard shall be established using local

characteristics, such as vehicle age mix and local fuel controls, and

the following model I/M program parameters: network type, start date,

test frequency, model year, vehicle type coverage, exhaust emission

test type, emission standards, emission control device, evaporative

system function checks, stringency, waiver rate, compliance rate and

evaluation date. The emission levels achieved by the state's program

design shall be calculated using the most current version, at the time

of submittal, of the EPA mobile source emission factor model. At the

time of the Massachusetts submittal the most current version was

MOBILE5h. Areas shall meet the performance standard for the pollutants

which cause them to be subject to enhanced I/M requirements. In the

case of ozone nonattainment areas, the performance standard must be met

for both NOX and HC. In the case of carbon monoxide areas, the

performance standard must be met for CO. This Massachusetts submittal

must meet the enhanced I/M performance standard for HC and NOX

statewide and meet the basic standard for CO in the Boston CO

maintenance area.

The Massachusetts submittal includes the following program design

parameters:

Network type--Hybrid (test only credit claim)

Start date--1999

Test frequency--biennial

Model year/ vehicle type coverage--1981+, light and heavy duty,

gasoline

Exhaust emission test type--transient

Emission standards--0.8 HC, 15.0 CO, 2.0 NOX

Emission control device check--yes

Evaporative system function checks--81+

Stringency (pre-1981 failure rate)--N/A

Waiver rate--0

Compliance rate--98%

Evaluation date(s)--2002

Massachusetts has submitted modeling demonstrations using the EPA

computer model MOBILE5h showing that the enhanced performance standard

reductions will be met in 2002. This demonstration assumed a 98%

compliance rate, 0% waiver rate, and IM 240 credits for an IG240

program. EPA questions the use of the 98% compliance rate given the

lack of an adequate description of the motorist compliance enforcement

system. EPA believes that a 96% compliance rate is achievable for a

well operated program, but rates in excess of these require additional

measures which go beyond normal enforcement and quality control

measures. The Commonwealth has assumed a 0% waiver rate but did not

estimate the impact of the proposed ``grace periods'' which will impact

emissions. The modeling assumed IM240 credits when IG240 or RG240 will

be used. This is inconsistent with the EPA policy specified in a memo

dated August 18, 1994, as well as the ECOS recommendations dated

October 4, 1996 which specify that ASM2 credits should be used for

IG240 or RG240 programs.

EPA and the Commonwealth have been working to resolve these

differences since submittal of the SIP package. In a letter dated

September 17, 1996, Massachusetts committed to adjust the start date of

dynamometer testing to be consistent with other NHSDA state programs.

Since it was not clear from this letter on what date the program would

start, EPA wrote back on October 7, 1996 to confirm the states intent

that the program would start sometime in late 1997, but no later than

January 1998. In another letter dated November 27, 1996, Massachusetts

agreed to use a 96% compliance rate and 1% waiver rate for modeling

purposes. The 1% waiver rate was supported by a description of a

program which would not allow any waivers, but would allow ``time

extensions'' only for marginal emitters and only after repairs which

result in a 50% reduction in emissions, costing up to $300 have been

done. These revised estimates are acceptable to EPA.

The Commonwealth has not revised the estimate for mechanic training

and believes that there will be a large number of dynamometers in the

Massachusetts repair network because of the hybrid system and these

dynamometers can be utilized for diagnosis of emission failures and

repair confirmation.

They also believe that there will be an extensive training network

provided for mechanics. The Commonwealth insists that this will provide

as much emission reduction as EPA's estimated reduction for mechanic

training. Since EPA has no conflicting data to refute the

Commonwealth's claim at this time, it will be considered a minor issue

which must be resolved before final approval of the program. EPA is

studying the technician training credit available, and expects to have

further guidance available prior to final full approval of the program.

EPA and Massachusetts have not been able to agree on the

appropriate emission reduction credit for the IG240 or RG240 test which

the Commonwealth will use. This is a major deficiency. The Commonwealth

claims 100% of the credit for an IM240 test without submitting any

supporting data (basis in fact). In addition, Massachusetts intends to

phase in the pass/fail standards so that those used during the initial

cycles will not be as stringent as those the program will eventually

use. Preliminary calculations done by the Commonwealth for a revised

15% plan indicate that the Commonwealth could achieve the needed 15%

reduction but not the high enhanced standard utilizing the ASM2 credits

recommended by EPA for IG240 and RG240 programs. The Commonwealth will

be able to show that the program at least meets the ``low enhanced I/M

performance standard.'' If the Commonwealth's final program analysis

indicates that use of these standards will not generate the emission

reductions needed to allow the State to meet the goals of its 15% plan,

Massachusetts will be required to redesign the I/M program to provide

additional reductions, or implement other control strategies to reach

15%. The state is not eligible to use the low enhanced performance

standard unless

[[Page 4509]]

it can meet 15% without the high enhanced standard.

EPA is proposing conditional interim approval of the Massachusetts

program at this time consistent with the intent of the NHSDA that state

I/M programs be promptly approved and implemented for an 18-month

period. EPA proposes that this approval be conditioned upon the

requirement that the Commonwealth perform and submit the necessary

modeling and demonstration that the program will meet at a minimum the

``low enhanced'' performance standard and 15% plan requirements using

MOBILE modeling input consistent with EPA guidance. This demonstration

must show as a worst case analysis that the Commonwealth will achieve a

15% reduction if the program only achieves reductions equivalent to

ASM2 credit or otherwise reduce the credit claimed by the State for I/

M. EPA proposes that the I/M modeling and complete 15% plan revised

SIP, be submitted by April 1, 1997. If the State fails to submit a

complete 15% plan by April 1, 1997, EPA proposes that the conditional

interim approval convert to a disapproval upon a finding letter from

EPA indicating that the Commonwealth has failed to submit the modeling

and demonstration of compliance with the performance standard by the

required date.

If the Commonwealth cannot meet the high enhanced I/M performance

standard, the Commonwealth may demonstrate compliance with the low

enhanced performance standard established in 40 CFR 51.351(g). That

section provides that states may select the low enhanced performance

standard if they have an approved SIP for reasonable further progress

in 1996, commonly known as a 15 percent reduction SIP or 15 percent

plan. In fact, EPA approval of 15 percent plans has been delayed, and

although EPA is preparing to take action on 15 percent plans in the

near future, it is unlikely that EPA will have completed final action

on most 15 percent plans prior to the time EPA believes it would be

appropriate to give final or conditional interim approval to I/M

programs under the NHSDA. Massachusetts is currently reassessing its 15

percent plan to include the above described I/M program changes. This

reassessment is to be based on the current program design and its

emission reduction benefit as of November 1999. If the results indicate

that the Commonwealth will not achieve a 15 percent reduction in

emissions, Massachusetts may choose to either make I/M program

improvements that would allow the program to meet the enhanced I/M

performance standard or add other provisions to its overall 15% control

plan.

In enacting the NHSDA, Congress evidenced an intent to have states

promptly implement I/M programs under interim approval status to gather

the data necessary to support state claims of appropriate credit for

alternative network design systems. By providing that such programs

must be submitted within a four month period, that EPA could approve I/

M programs on an interim basis based only upon proposed regulations,

and that such approvals would last only for an 18 month period, it is

clear that Congress anticipated both that these programs would start

quickly and that EPA would act quickly to give them interim approval.

Many states have designed a program to meet the low enhanced

performance standard, and have included that program in their 15

percent plan submitted to EPA for approval. Such states anticipated

that EPA would propose approval both of the I/M programs and the 15

percent plans on a similar schedule, and thus that the I/M programs

would qualify for approval under the low performance standard. In light

of delays in EPA action on 15 percent plans, EPA does not believe it

would be consistent with the intent of the NHSDA to delay action on

interim I/M approvals until the Agency has completed action on the

corresponding 15 percent plans. Although EPA acknowledges that under

its regulations final full approval of a low enhanced I/M program after

the 18-month evaluation period would have to await final approval of

the corresponding 15 percent plan, EPA believes that in light of the

NHSDA it can grant either final or conditional interim approval of such

I/M plans provided that the Agency has determined as an initial matter

that approval of the 15 percent plan is appropriate, and has issued a

proposed approval of that 15 percent plan.

The Commonwealth plans to submit a revised 15 percent plan. It is

possible that Massachusetts' proposed I/M program may fall short of the

enhanced I/M high performance standard but exceed the low enhanced

performance standard. If this is the case and the emission reductions

provided by the I/M program allow the Commonwealth to fulfill the

requirements of its 15 percent plan, then EPA will review the 15

percent plan and propose action on it shortly thereafter. Should EPA

propose approval of the 15 percent plan, EPA will proceed to take

conditional interim approval action on the I/M plan. EPA proposes in

the alternative that if the Agency proposes instead to disapprove the

15 percent plan, EPA would then disapprove the I/M plan as well because

the Commonwealth would no longer be eligible to select the low enhanced

performance standard under the terms of 40 CFR 51.351(g).

Network Type and Program Evaluation--40 CFR 51.353

The enhanced program shall include an ongoing evaluation to

quantify the emission reduction benefits of the program, and to

determine if the program is meeting the requirements of the Act and the

federal I/M regulation. The SIP shall include details on the program

evaluation and shall include a schedule for submittal of biennial

evaluation reports, data from a state monitored or administered and EPA

approved mass emission transient test of at least 0.1% of the vehicles

subject to inspection each year, description of the sampling

methodology, the data collection and analysis system and the legal

authority enabling the evaluation program. In order to determine

whether the state's I/M program meets the applicable standard, the

state needed to submit modeling of its program to reflect that it met

the applicable performance standard. Because of delayed program start

up and program reconfiguration, the existing modeling used by the state

to demonstrate compliance with the performance standard is no longer

accurate, as it is based on start up and phase-in of testing and cut-

points that do not reflect the current program configuration or start

dates that the state will actually implement. EPA believes, based on

the available modeling, analysis of program elements in the SIP

submittals and EPA's own extrapolation of expected emission reductions

from the program, that the delayed program start up, as compared to

that start up which was modeled by the state, will not jeopardize the

state's ability to meet the low enhanced performance standard. However,

the state must conduct new modeling using the actual program

configuration to verify that the performance standard will in fact be

met. For example, phase-in cut points corresponding to the test-type

and correct program start up dates should be included in the new

modeling.

EPA is proposing interim approval of the state program at this time

consistent with the intent of the Highway Act that state I/M programs

be promptly approved and implemented for an 18 month period. However,

EPA proposes that this approval be conditioned upon the requirement

that the state conduct and submit the necessary new modeling

[[Page 4510]]

and demonstration that the program will meet the performance standard

by a date certain within one year from final interim approval. If the

state fails to submit this new modeling by a date certain within one

year, EPA proposes that the interim approval will convert to a

disapproval upon a letter from EPA indicating that the state has failed

to timely submit the modeling and demonstration of compliance with the

performance standard. In addition, the existing I/M rules require that

the modeling demonstrate that the state program has met the performance

standard by fixed evaluation dates. The first such date is January 1,

2000. However, few state programs will be able to demonstrate

compliance with the performance standard by that date as a result of

delays in program start up and phase in of testing requirements. EPA

believes that based on the provisions of the Highway Act, the

evaluation dates in the current I/M rule have been superceeded.

Congress provided in the Highway Act for state development of I/M

programs that would start significantly later than the start dates in

the current I/M rule. Consistent with congressional intent, such

programs by definition will not achieve full compliance with the

performance standard by the beginning of 2000.

As explained above, EPA has concluded that the Highway Act

superceeded the start date requirements of the I/M rule, but that

states should still be required to start their programs as soon as

possible, which EPA has determined would be by November 15, 1997.

Therefore, EPA believes that pursuant to the Highway Act, the initial

evaluation date should be 2002. This evaluation date will allow states

to fully implement their I/M programs and complete one cycle of testing

at full cut points in order to demonstrate compliance with the

performance standard.

The Commonwealth has designed a hybrid network. Based on the

provisions of the NHSDA, there will be no automatic discount applied to

the test-and-repair portion for this type of network. The Commonwealth

has committed to meet the program evaluation requirements of 40 CFR

51.353 but failed to provide a detailed description of this part of the

program in the SIP submission. The Commonwealth must describe in detail

how these requirements will be met, including how the program

evaluation vehicles will be selected and tested. This minor deficiency

must be corrected before final full approval of the Massachusetts I/M

SIP.

Adequate Tools and Resources--40 CFR 51.354

The federal regulation requires the state to demonstrate that

adequate funding of the program is available. A portion of the test fee

or separately assessed per vehicle fee shall be collected, placed in a

dedicated fund and used to finance the program. Alternative funding

approaches are acceptable if it is demonstrated that the funding can be

maintained. Reliance on funding from the state or local General Fund is

not acceptable unless doing otherwise would be a violation of the

state's constitution. The SIP shall include a detailed budget plan

which describes the source of funds for personnel, program

administration, program enforcement, and purchase of equipment. The SIP

shall also detail the number of personnel dedicated to the quality

assurance program, data analysis, program administration, enforcement,

public education and assistance and other necessary functions.

The Commonwealth has provided for a dedicated fund for the program,

but there is no analysis of the staff or other resources needed to

implement the program. The Commonwealth must submit a detailed

evaluation of resource needs and establish a test fee which is adequate

to meet these needs. The submittal does not meet the requirements of

this section set forth in the federal I/M rule and this is a major

deficiency. In the letter dated November 27, 1996 from the

Commonwealth, it was stated that the March 27, 1996 and December 1994

submittals addressed these requirements, but neither submittal contains

the detailed description required by this section. In addition, the

December 1994 submittal was for a test-only program which required

significantly different resource allocations from the hybrid now

program anticipated by the Commonwealth. The Commonwealth, within 30

days of publication of this document, must commit to correct this

deficiency by a date certain within one year of interim conditional

approval of this submittal.

Test Frequency and Convenience--40 CFR 51.355

The enhanced I/M performance standard assumes an annual test

frequency; however, other schedules may be approved if the performance

standard is achieved. The SIP shall describe the test year selection

scheme, how the test frequency is integrated into the enforcement

process and shall include the legal authority, regulations or contract

provisions to implement and enforce the test frequency. The program

shall be designed to provide convenient service to the motorist by

ensuring short wait times, short driving distances and regular testing

hours.

The Massachusetts program will provide biennial testing in a hybrid

network. Many of the details of this section must still be developed by

the Commonwealth before EPA can determine if the requirements are

satisfied. Although the Commonwealth expects sufficient testing

facilities to participate to provide adequate convenience, there are no

provisions to provide additional testing if participation is lower than

expected. This is a minor deficiency which must be corrected prior to

final full approval of the SIP.

Vehicle Coverage--40 CFR 51.356

The performance standard for enhanced I/M programs assumes coverage

of all 1968 and later model year light duty vehicles and light duty

trucks up to 8,500 pounds GVWR, and includes vehicles operating on all

fuel types. Other levels of coverage may be approved if the necessary

emission reductions are achieved. Vehicles registered or required to be

registered within the I/M program area boundaries and fleets primarily

operated within the I/M program area boundaries and belonging to the

covered model years and vehicle classes comprise the subject vehicles.

Fleets may be officially inspected outside of the normal I/M program

test facilities, if such alternatives are approved by the program

administration, but shall be subject to the same test requirements

using the same quality control standards as non-fleet vehicles and

shall be inspected in the same type of test network as other vehicles

in the state, according to the requirements of 40 CFR 51.353(a).

Vehicles which are operated on federal installations located within

an I/M program area shall be tested, regardless of whether the vehicles

are registered in the state or local I/M area.

The federal I/M regulation requires that the SIP shall include the

legal authority or rule necessary to implement and enforce the vehicle

coverage requirement, a detailed description of the number and types of

vehicles to be covered by the program and a plan for how those vehicles

are to be identified including vehicles that are routinely operated in

the area but may not be registered in the area, and a description of

any special exemptions including the percentage and number of vehicles

to be impacted by the

[[Page 4511]]

exemption. Such exemptions shall be accounted for in the emissions

reduction analysis.

The Commonwealth program proposes to test 1981 and newer light and

heavy duty gasoline vehicles. The Massachusetts submittal does not

provide a detailed description of the number and types of vehicles

included in the program. This is a minor deficiency which must be

corrected prior to final full approval of the Massachusetts I/M SIP.

Test Procedures and Standards--40 CFR 51.357

Written test procedures and pass/fail standards shall be

established and followed for each model year and vehicle type included

in the program. Test procedures and standards are detailed in 40 CFR

51.357 and in the EPA documents entitled ``High-Tech I/M Test

Procedures, Emission Standards, Quality Control Requirements, and

Equipment Specifications'', EPA-AA-EPSD-IM-93-1, dated April 1994 and

``Acceleration Simulation Mode Test Procedures, Emission Standards,

Quality Control Requirements, and Equipment Specifications'', EPA-AA-

RSPD-IM-96-2, dated July 1996. The federal I/M regulation also requires

vehicles that have been altered from their original certified

configuration (i.e. engine or fuel switching) to be subject to the

requirements of Sec. 51.357(d).

Massachusetts will use a transient test but the test procedures

have not been developed and submitted by the Commonwealth. This portion

of the submittal does not meet the requirements of this section set

forth in the federal I/M rule and is a major deficiency. The

Commonwealth, within 30 days of publication of this document must

commit to correct this major deficiency by a date certain within one

year of interim conditional approval of this submittal.

Test Equipment--40 CFR 51.358

Computerized test systems are required for performing any

measurement on subject vehicles. The federal I/M regulation requires

that the state SIP submittal include written technical specifications

for all test equipment used in the program. The specifications shall

describe the emission analysis process, the necessary test equipment,

the required features, and written acceptance testing criteria and

procedures.

Although the Massachusetts submittal does not contain the written

technical specifications for test equipment to be used in the program

it does describe a system which will utilize the latest computerized

equipment.

This is a minor deficiency which must be corrected prior to final

full approval of the Massachusetts SIP.

Quality Control--40 CFR 51.359

Quality control measures shall insure that emission measurement

equipment is calibrated and maintained properly, and that inspection,

calibration records, and control charts are accurately created,

recorded and maintained.

The Massachusetts submittal does not include provisions which

describe and establish quality control measures for the emission

measurement equipment, and record keeping requirements. This portion of

the submittal does not meet the requirements of this section set forth

in the federal I/M rule and is a major deficiency. The Commonwealth,

within 30 days of publication of this document, must commit to correct

this deficiency by a date certain within one year of final interim

conditional approval of this submittal.

Waivers and Compliance Via Diagnostic Inspection--40 CFR 51.360

The federal I/M regulation allows for the issuance of a waiver,

which is a form of compliance with the program requirements that allows

a motorist to comply without meeting the applicable test standards. For

enhanced I/M programs, an expenditure of at least $450 in repairs,

adjusted annually to reflect the change in the Consumer Price Index

(CPI) as compared to the CPI for 1989, is required in order to qualify

for a waiver. Waivers can only be issued after a vehicle has failed a

retest performed after all qualifying repairs have been made. Any

available warranty coverage must be used to obtain repairs before

expenditures can be counted toward the cost limit. Tampering related

repairs shall not be applied toward the cost limit. Repairs must be

appropriate to the cause of the test failure. Repairs for 1980 and

newer model year vehicles must be performed by a recognized repair

technician. The federal regulation allows for compliance via a

diagnostic inspection after failing a retest on emissions and requires

quality control of waiver issuance. The SIP must set a maximum waiver

rate and must describe corrective action that would be taken if the

waiver rate exceeds that committed to in the SIP.

Massachusetts has chosen not to allow cost waivers or compliance

via diagnostic inspection, but will allow a ``grace period'' for

repairs. The length of these grace periods needs to be defined in order

to evaluate the impact of this proposal. This part of the submittal

does not meet the requirements of this section set forth in the federal

I/M rule and this is a major deficiency. In a letter dated November 27,

the Commonwealth explained that it was now developing a procedure which

would not allow waivers, but would allow a ``time extension'' for some

marginal failures for one test cycle if $300 is spent on repairs and

other conditions are met. This procedure must be further developed and

submitted to EPA for approval. The Commonwealth estimates that this

program will allow no more than the equivalent of a 1% waiver rate. The

Commonwealth, within 30 days of publication of this document, must

commit to correct this major deficiency or clarify the procedure by a

date certain within one year of interim conditional of this submittal.

Motorist Compliance Enforcement--40 CFR 51.361

The federal regulation requires that compliance shall be ensured

through the denial of motor vehicle registration in enhanced I/M

programs unless an exception for use of an existing alternative is

approved. An enhanced I/M area may use either sticker-based enforcement

programs or computer-matching programs if either of these programs were

used in the existing program, which was operating prior to passage of

the 1990 Clean Air Act Amendments, and it can be demonstrated that the

alternative has been more effective than registration denial. The SIP

shall provide information concerning the enforcement process, legal

authority to implement and enforce the program, and a commitment to a

compliance rate to be used for modeling purposes and to be maintained

in practice.

The Commonwealth is planning on utilizing a sticker system for

visible evidence of compliance, but registration will be suspended or

not renewed for noncompliance. The initial Massachusetts SIP submittal

uses a 98% compliance rate in the performance standard modeling

demonstration, however, the Commonwealth has not committed to or

described what measures will be used to achieve this higher compliance

rate. In a letter dated November 27, 1996, the Commonwealth revised the

compliance rate of 96% for modeling purposes. This revised part of the

submittal meets the requirements of this section as set forth in the

federal I/M rule and is part of the basis for conditional interim

approval of the Massachusetts I/M SIP.

Motorist Compliance Enforcement Program Oversight--40 CFR 51.362

[[Page 4512]]

The federal I/M regulation requires that the enforcement program

shall be audited regularly and shall follow effective program

management practices, including adjustments to improve operation when

necessary. The SIP shall include quality control and quality assurance

procedures to be used to insure the effective overall performance of

the enforcement system. An information management system shall be

established which will characterize, evaluate and enforce the program.

The details of this program have not been developed and submitted

in order for EPA to evaluate it. This is a minor deficiency which

Massachusetts must correct prior to EPA's final action on the full I/M

SIP.

Quality Assurance--40 CFR 51.363

An ongoing quality assurance program shall be implemented to

discover, correct and prevent fraud, waste, and abuse in the program.

The program shall include covert and overt performance audits of the

inspectors, audits of station and inspector records, equipment audits,

and formal training of all state I/M enforcement officials and

auditors. A description of the quality assurance program which includes

written procedure manuals on the above discussed items must be

submitted as part of the SIP.

Although Massachusetts has made a commitment to meet these

requirements, a detailed quality assurance program which meets the

requirements of the federal I/M rule must be developed and submitted.

This portion of the submittal does not meet the requirements of this

section set forth in the federal I/M rule and is a major deficiency.

The Commonwealth, within 30 days of publication of this document must

commit to correct this major deficiency by a date certain within one

year of interim conditional approval of this submittal.

Enforcement Against Contractors, Stations and Inspectors--40 CFR 51.364

Enforcement against licensed stations, contractors and inspectors

shall include swift, sure, effective, and consistent penalties for

violation of program requirements. The federal I/M regulation requires

the establishment of minimum penalties for violations of program rules

and procedures which can be imposed against stations, contractors and

inspectors. The legal authority for establishing and imposing

penalties, civil fines, license suspensions and revocations must be

included in the SIP. State quality assurance officials shall have the

authority to temporarily suspend station and/or inspector licenses

immediately upon finding a violation that directly affects emission

reduction benefits, unless constitutionally prohibited. An official

opinion explaining any state constitutional impediments to immediate

suspension authority must be included in the submittal. The SIP shall

describe the administrative and judicial procedures and

responsibilities relevant to the enforcement process, including which

agencies, courts and jurisdictions are involved, who will prosecute and

adjudicate cases and the resources and sources of those resources which

will support this function.

A detailed description of this part of the program was not

submitted. This a minor deficiency which must be corrected prior to

final full approval of the Massachusetts I/M SIP.

Data Collection--40 CFR 51.365

Accurate data collection is essential to the management, evaluation

and enforcement of an I/M program. The federal I/M regulation requires

data to be gathered on each individual test conducted and on the

results of the quality control checks of test equipment required under

40 CFR 51.359.

The Massachusetts SIP provides a commitment to meet all of the data

collection requirements and has listed all the required data which will

be collected. This part of the submittal meets the requirements of this

section set forth in the federal I/M rule and is part of the basis for

conditional interim approval of the Massachusetts I/M SIP.

Data Analysis and Reporting--40 CFR 51.366

Data analysis and reporting are required to allow for monitoring

and evaluation of the program by the state and EPA. The federal I/M

regulation requires annual reports to be submitted which provide

information and statistics and summarize activities performed for each

of the following programs: testing, quality assurance, quality control

and enforcement. These reports are to be submitted by July and shall

provide statistics for the period of January to December of the

previous year. A biennial report shall be submitted to EPA which

addresses changes in program design, regulations, legal authority,

program procedures and any weaknesses in the program found during the

two year period and how these problems will be or were corrected.

The Massachusetts data analysis and reporting procedures have not

been developed. This is a minor deficiency which must be corrected

prior to final full approval of the Massachusetts I/M SIP.

Inspector Training and Licensing or Certification--40 CFR 51.367

The federal I/M regulation requires all inspectors to be formally

trained and licensed or certified to perform inspections.

The Massachusetts proposed regulation at 310 CMR 60.02(14) requires

training and certification of inspectors. This portion of the submittal

meets the requirements of this portion of the federal I/M rule and is

part of the basis for conditional interim approval of the Massachusetts

I/M SIP.

Public Information and Consumer Protection--40 CFR 51.368

The federal I/M regulation requires the SIP to include public

information and consumer protection programs. The Massachusetts SIP

submittal contains a public awareness plan, however it does not provide

for protection of whistle blowers. The plan also needs to be expanded

to include information on state and federal laws and how motorists can

maintain their vehicles to keep emissions low. This is a minor

deficiency which must be corrected prior to final full approval of the

Massachusetts I/M SIP.

Improving Repair Effectiveness--40 CFR 51.369

Effective repairs are the key to achieving program goals. The

federal regulation requires states to take steps to ensure that the

capability exists in the repair industry to repair vehicles. The SIP

must include a description of the technical assistance program to be

implemented, a description of the procedures and criteria to be used in

meeting the performance monitoring requirements required in the federal

regulation, and a description of the repair technician training

resources available in the community.

This part of the submittal meets the requirements of this section

set forth in the federal I/M rule and is part of the basis for

conditional interim approval of the Massachusetts I/M SIP.

Compliance With Recall Notices--40 CFR 51.370

The federal regulation requires the states to establish methods to

ensure that vehicles that are subject to enhanced I/M and are included

in a emission related recall receive the required repairs prior to

completing the emission test and/or renewing the vehicle registration.

Most of the requirements of this section are met by the

Massachusetts

[[Page 4513]]

submittal except motorists are not notified of required recalls prior

to inspection periods so that they can meet the requirements in the

current rather than subsequent inspection cycle. This is a minor

deficiency which must be corrected prior to final full approval of the

Massachusetts SIP.

On-road Testing--40 CFR 51.371

On-road testing is required in enhanced I/M areas. The use of

either remote sensing devices (RSD) or roadside pullovers including

tailpipe emission testing can be used to meet the federal regulations.

The program must include on-road testing of 0.5% of the subject fleet

or 20,000 vehicles, whichever is less, in the nonattainment area or the

I/M program area. Motorists that have passed an emission test and are

found to be high emitters as a result of an on-road test shall be

required to pass an out-of-cycle test.

The Massachusetts SIP submittal describes an on-road testing

program which meets the requirements of the federal I/M rules and is

part of the basis for conditional interim approval of the Massachusetts

I/M SIP.

State Implementation Plan Submissions/Implementation Deadlines--40 CFR

51.372 through 51.373

The Massachusetts submittal proposes to start two speed idle

testing in 1997 and dynamometer testing in 1999. This is not consistent

with EPA's interpretation of the required start date under the NHSDA.

In a letter dated September 17, 1996, the Commonwealth agreed to move

up the dynamometer start date to be consistent with other NHSDA states.

Since this letter did not specify a precise date, EPA wrote back on

October 7, 1996 to confirm the state's intent that the start date would

be sometime in late 1997 but no later than January, 1998. EPA proposes

that Massachusetts must start the dynamometer testing by November 15,

1997, or this conditional approval will convert to a disapproval after

a findings letter is sent by EPA.

III. Discussion for Rulemaking Action

In order for EPA to conditionally approve the Massachusetts I/M

SIP, the state must commit within 30 days of publication of this

document to correct the following major elements of the SIP that EPA

considers deficient by a date certain within one year of final interim

approval of this submittal. These elements are:

(1) Credit claims: In several areas, Massachusetts has claimed

credit for emission reductions which overstate the emission reductions

which will occur, with no clear basis for those claims. These are

beyond the issue of test-only versus test-and-repair network types.

Revision of these factors as discussed above will necessitate

recalculation of emission reductions from the program. The

Commonwealth, within 30 days of publication of this document must

commit, to revise and submit to EPA, by April 1, 1997, a complete

revised 15% plan utilizing appropriate waiver, compliance rates, test

type and the phase-in emission standards which will be used in November

1997 (i.e. ASM2 emission credits with phase in cutpoints.)

(2) The Commonwealth has now proposed a ``time extension'' program

which restricts noncompliance with the program severely. This program

must be further defined and submitted to EPA as a SIP revision by a

date certain within one year of publication of final interim approval

of this submittal. Other major deficiencies as outlined above must also

be corrected in Secs. 51.351 (Enhanced IM Performance Standard), 51.354

(Adequate Tools and Resources), 51.357 (Test Procedures and Standards),

51.359 (Quality Control), 51.360 (Waivers and Compliance via Diagnostic

Inspection), 51.360 (Motorist Compliance Enforcement), and 51.363

(Quality Assurance). The Commonwealth, within 30 days of publication of

this notice, must commit to correct these deficiencies by a date

certain within one year of conditional interim approval by EPA.

If the Commonwealth does not make such a commitment within 30 days,

EPA proposes in the alternative to disapprove this SIP. If these

conditions are not met within the time specified, EPA today is

proposing that this SIP revision convert to a disapproval.

If the Commonwealth makes the commitment within 30 days, EPA's

conditional approval of the plan will continue for 18 months under the

Highway Act if the Commonwealth has committed to cure all of the

conditions specified in this document. EPA expects that within this

period the Commonwealth will not only correct the deficiencies as

committed to by the Commonwealth, but that the Commonwealth will also

begin program start-up by November 15, 1997. If the Commonwealth does

not correct deficiencies by the date(s) certain and implement the

interim program by November 15, 1997, EPA is proposing in this document

that the interim approval will convert to a disapproval after a finding

letter is sent to the Commonwealth.

IV. Explanation of the Interim Approval

At the end of the 18 month interim period, the approval status for

this program will automatically lapse pursuant to the NHSDA. It is

expected that the Commonwealth will at that time be able to make a

demonstration of the program's effectiveness using an appropriate

evaluation criteria. As EPA expects that these programs will have

started on or before November 15, 1997, the Commonwealth will have at

least 6 months of program data that can be used for the demonstration.

If the Commonwealth fails to provide a demonstration of the program's

effectiveness to EPA within 18 months of the final interim rulemaking,

the interim approval will lapse, and EPA will be forced to disapprove

the Commonwealth's permanent I/M SIP revision if the Commonwealth does

not demonstrate the interim program's effectiveness. If the

Commonwealth's program evaluation demonstrates a lesser amount of

emission reductions actually realized than were claimed in the

Commonwealth's previous submittal, EPA will adjust the Commonwealth's

credits accordingly and use this information to act on the

Commonwealth's permanent I/M program.

V. Further Requirements for Permanent I/M SIP Approval

At the end of the 18 month period, final full approval of the

Commonwealth's plan may 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 state'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 Massachusetts I/M program meets all of the requirements of

EPA's I/M rule, including those minor deficiencies found to be de

minimis for purposes of interim approval.

VI. EPA's Evaluation of the Interim Submittal

EPA's review of this material indicates that the Massachusetts I/M

SIP meets the requirements for conditional interim approval under the

National Highway Systems Designation Act and the Clean Air Act. EPA is

proposing a conditional interim approval of the Massachusetts SIP

revision for motor vehicle inspection and maintenance,

[[Page 4514]]

which was submitted on March 27, 1996. EPA is soliciting public

comments on the issues discussed in this document or on other relevant

matters. These comments will be considered before taking final action.

Interested parties may participate in the Federal rulemaking procedure

by submitting written comments to the EPA Regional office listed in the

Addresses section of this document.

Proposed Action

EPA is proposing to conditionally approve this revision to the

Massachusetts SIP for an interim enhanced I/M program. The conditions

for approvability are as follows:

Within 30 days of this document, Massachusetts commits to submit by

April 1, 1997 a complete approvable revised 15% plan which shows

sufficient reductions from an enhanced I/M program utilizing emission

credit estimates agreeable to EPA as discussed earlier in this

document. This includes MOBILE modeling with a worst case analysis

showing that the Commonwealth will meet the needed 15% reductions if

the program only achieves reductions equivalent to ASM2 credit at

``phase-in'' cut points or the Commonwealth must reduce the credit

claimed for the I/M program. Also, within 30 days of this document

Massachusetts commits to submit by a date certain within one year of

final interim approval, revised program evaluation modeling showing

achievement of at least the low enhanced I/M standard by 2002.

In addition, within 30 days Massachusetts commits to submit by a

date certain within one year of final interim approval, revisions to

meet the requirements for Enhanced I/M Performance Standard--40 CFR

51.351, Adequate Tools and Resources--40 CFR 51.354, Test Procedures

and Standards--40 CFR 51.357, Quality control--40 CFR 51.359, Waivers

and Compliance via Diagnostic Inspection--40 CFR 51.360 , Quality

Assurance--40 CFR 51.363 and a revised modeling analysis showing

achievement of the performance standard by 2002.

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.

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.

SIP approvals under section 110 and subchapter I, part D of the

Clean Air Act 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, the

Administrator 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).

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 that includes a Federal mandate that may result in estimated

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

the 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 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

Federal requirements. Accordingly, no additional costs to state, local,

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

action.

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.

The Administrator's decision to approve or disapprove the SIP

revision will be based on whether it meets the requirements of section

110(a)(2)(A)-(K) and part D of the Clean Air Act, as amended, and EPA

regulations in 40 CFR Part 51.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

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

Dated: January 15, 1997.

John P. DeVillars,

Regional Administrator, Region I.

[FR Doc. 97-2194 Filed 1-29-97; 8:45 am]

BILLING CODE 6560-50-P