Approval and Promulgation of Implementation Plans; New Jersey; Motor Vehicle Inspection and Maintenance Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NJ30-184; FRL-6151-4]

Approval and Promulgation of Implementation Plans; New Jersey;

Motor Vehicle Inspection and Maintenance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State

Implementation Plan (SIP) revision submitted by the State of New Jersey

changing the inspection frequency of the current inspection and

maintenance (I/M) program from annual to biennial and adding a gas cap

inspection.

DATES: This approval becomes effective on September 25, 1998.

ADDRESSES: Copies of the documents relevant to this action are

available for public inspection during normal business hours at the

following locations: Environmental Protection Agency, Region II Office,

Air Programs Branch, 290 Broadway, 25th Floor, New York, New York

10007-1866 and New Jersey Department of Environmental Protection, East

State Street, Trenton, New Jersey 08625.

FOR FURTHER INFORMATION CONTACT: Richard Graciano, Air Programs Branch,

Environmental Protection Agency, 290 Broadway, 25th Floor, New York,

New York 10007-1866, (212) 637-4249. GRACIANO.RICHARD @EPAMAIL.EPA.GOV.

SUPPLEMENTARY INFORMATION:

I. Background

On February 26, 1998 New Jersey submitted a proposed revision to

its State Implementation Plan (SIP) changing the inspection frequency,

from annual to biennial, of its existing basic automobile inspection

and maintenance (I/M) program during the transition period to a

biennial enhanced I/M program. On June 5, 1998, the State submitted the

final SIP revision providing analysis that quantifies the emission

reduction loss as a result of switching to biennial testing, as well as

the net benefit resulting from the addition of the gas cap test.

Switching to biennial testing during the transition period will allow

the State to accommodate decreased availability at the test-only

stations while they are being retrofitted to conduct the new enhanced

test.

New Jersey has had a basic I/M program in place since 1974. This

program, in its current form, was subject to its most recent amendment

on January 21, 1985, which was approved by EPA and incorporated into

the SIP on September 17, 1992 (57 FR 42893). EPA conditionally approved

New Jersey's enhanced I/M program on May 14, 1997 (62 FR 26405). On

January 30, 1998, the State submitted performance standard modeling to

EPA, fulfilling the remaining condition required by EPA in its approval

notice.

Under provisions of sections 182, 184, and 187 of the Clean Air Act

(Act), New Jersey is required to implement an enhanced I/M program

throughout the entire State. In its July 10, 1995 and March 27, 1996

SIP submittals, the State indicated that the enhanced I/M program would

require biennial inspections, and suggested that early implementation

of biennial testing may be necessary to facilitate system upgrades.

Pursuant to section 193 of the Act, such a change could not be

approved if it results in increased emissions of volatile organic

compounds (VOCs) and/or carbon monoxide (CO), which could be the case

if biennial testing is implemented under the current I/M program

without other offsets. In order to offset the increased VOC emissions

that could occur by going biennial, New Jersey is adding a test that

checks the functional operation of vehicle gas caps. The gas cap checks

will be implemented during the transition period from the existing

program to the enhanced program rather than at the start of the

enhanced program. New Jersey expects that this strategy will offset the

increase in VOCs resulting from the conversion to biennial testing and

has submitted modeling results that support this. New Jersey estimates

that the resulting VOC emissions increase from changing the program

frequency to biennial will be about 0.026 grams per mile. The VOC

emissions reduction associated with the functional gas cap test are

estimated to be about 0.033 grams per mile, resulting in a net benefit

of 0.007 grams per mile.

New Jersey also estimates that CO emissions will increase about

0.365 grams per mile as a result of the change in inspection frequency.

EPA acknowledges that the most efficient means to achieve significant

carbon monoxide reduction and ultimate attainment is through the speedy

implementation of the State's enhanced I/M program. Specifically, EPA

expects that the State's enhanced I/M implementation will result in

excess carbon monoxide benefits beyond the required performance

standard. These are approximately 0.526 grams per mile.

These air quality benefits cannot be achieved without accommodating

the practical obstacles associated with retrofitting test-only

stations, which include transitional biennial testing.

Since the State was proceeding with a construction and operation

contract process for its approved enhanced program (and recently

awarded this contract), at New Jersey's request, EPA agreed to proceed

with an expedited decision process for this revision to the existing

program. As a result, approval of this revision was proposed on May 13,

1998, under a procedure called parallel processing, whereby EPA can

propose rulemaking action concurrently with the State's procedures for

amending its regulations (63 FR 26562). If the State's proposed

revision had substantially changed, EPA would have been obligated to

evaluate those changes and publish another notice of proposed

rulemaking. This final rulemaking action by EPA is taking place because

New Jersey's SIP revision has been adopted, as proposed, by the State

and submitted formally to EPA for incorporation into the SIP.

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II. Public Comments/Response to Comments

This section discusses the content of the comments submitted to the

docket during the federal comment period for the notice of proposed

rulemaking, published in the May 13, 1998 Federal Register, and

provides EPA's responses to those comments. Comments were received from

the State of New York only. Copies of the original comment letter is

available at EPA's Region II office at the address listed in the

ADDRESSES section of this document.

Comment--Noncomplying Schedule

The New York State Department of Environmental Conservation

(NYSDEC) commented that the New Jersey proposal does not comply with

EPA's interim Final Rule because the enhanced I/M program did not start

on November 15, 1997 or by February 1, 1998, and as a result New Jersey

will not comply with the 18-month NHSDA short term evaluation clock

that expires on December 14, 1998. NYSDEC also commented that EPA has

not converted the proposed approval to a disapproval, and that New

Jersey cannot be allowed to claim any emission reduction credits toward

the 15 Percent or Rate of Progress Plans if the program begins on

January 1, 2000.

Response to Comment: EPA maintains that today's action is wholly

consistent with EPA's interim Final Rule. While EPA agrees that New

Jersey cannot be allowed to claim any emission reduction credits toward

the 15 Percent Plans if the program begins on January 1, 2000, it does

not agree that this emission credit shortfall warrants a disapproval of

the underlying enhanced I/M program.

By letter dated December 12, 1997, EPA informed New Jersey of its

decisions to disapprove the State's 15 Percent Plan pursuant to section

110(k) of the Act, which triggered its own sanctions and the FIP clock,

and to begin sanctions for New Jersey's failure to implement its

enhanced I/M program, in accordance with section 179(a)(4) of the Act.

The enhanced I/M SIP approval was a separate action and the delayed

start date has different consequences for the 15 Percent Plan than for

the enhanced I/M SIP.

Specifically, the New Jersey enhanced I/M program remains an

approved part of the applicable implementation plan for New Jersey

because it meets all of the federal regulatory requirements. The start

date was significant for purposes of taking credit for reductions under

the NHSDA. Furthermore, unless New Jersey begins implementation of its

enhanced I/M program, starting 18 months from December 12, 1997,

increased emissions from new or modified sources of VOCs and nitrogen

oxides must be offset at a rate of two tons of reduction for every one

ton of increased emissions. Starting six months thereafter,

restrictions of New Jersey's receipt of federal highway funds will also

begin. NYSDEC should also note that the 15 Percent Plan was converted

to a disapproval because the 15 Percent Plan was not viable without the

reductions from the enhanced I/M program that New Jersey had projected

based upon the February 1998 start date. At present, New Jersey must

submit a revised 15 Percent Plan which does not rely upon its enhanced

I/M program to achieve the necessary emission reductions.

Comment--Inadequate Mobile Modeling

NYSDEC made several comments on New Jersey's modeling analysis

suggesting it was inadequate because the State claims credits from use

of final cutpoints at the start of the enhanced program. In addition,

NYSDEC commented that New Jersey's assumption of inspections at change

of ownership is not justified, that New Jersey's did not adequately

support the claim of 100 percent credit for the technician training and

certification program, and that the State failed to use locally

specific inputs.

Response to Comment: This rulemaking action is limited to New

Jersey's request to change the testing frequency of the existing basic

program. NYSDEC's comments refer to New Jersey's performance standard

modeling analysis for the enhanced I/M program and are therefore beyond

the scope of this document. However, EPA will take these comments into

consideration when evaluating New Jersey's final program submittal to

take place once the enhanced program has begun.

III. Conclusion

New Jersey's June 5, 1998 submittal of the SIP revision request

contained no changes from the proposed revision submitted on February

26, 1998, and there were no comments that would impact on this

decision. As a result, EPA is moving forward with this approval. Had

the State's submittal contained substantial changes, EPA would have

evaluated them to determine their effect on the overall submittal and

published another notice of proposed rulemaking.

With respect to this approval, EPA reiterates the requirement that

testing frequency conversion under the terms of the SIP only applies

after the State awards the necessary construction contracts for its

enhanced I/M program.

IV. Administrative Requirements

A. Executive Order 12866 and 13045

The Office of Management and Budget (OMB) has exempted this

regulatory action from review under Executive Order (E.O.) 12866

entitled, Regulatory Planning and Review. The proposed rule is not

subject to E.O. 13045 entitled, Protection of Children from

Environmental Health Risks and Safety Risks, because it is not an

``economically significant'' action under E.O. 12866.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because 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

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Clean Air Act, preparation of 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).

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

annual 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

[[Page 45404]]

is consistent with statutory requirements. Section 203 requires EPA to

establish a plan for informing and advising any small governments that

may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a federal mandate that may result in estimated annual 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 Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. EPA will submit 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 United States prior

to publication of the rule in the 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 October 26, 1998. Filing a

petition for reconsideration by the Administrator of this final rule

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).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Intergovernmental relations, Ozone, Volatile organic

compounds.

Dated: August 14, 1998.

William J. Muszynski,

Acting Regional Administrator, Region 2.

Part 52, 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 et seq.

Subpart FF--New Jersey

2. Section 52.1582 is amended by adding new paragraph (f) to read

as follows:

52.1582 Control strategy and regulations: Ozone (volatile organic

substances) and carbon monoxide.

* * * * *

(f) The State of New Jersey's June 5, 1998 submittal for the

conversion of the inspection frequency of the current inspection and

maintenance (I/M) program from annual to biennial in order to

facilitate the upgrade of the existing state lanes to accommodate the

testing equipment for the enhanced program has been approved by EPA.

The State will be adding a gas cap inspection to the current I/M

program, which will result in a net increase in overall emissions

reductions.

[FR Doc. 98-22792 Filed 8-25-98; 8:45 am]

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