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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 119-4074a; FRL-6148-3]

Approval and Promulgation of Air Quality Implementation Plans;

Commonwealth of Pennsylvania; Enhanced Motor Vehicle Inspection and

Maintenance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action serves to remove several conditions of EPA's

January 28, 1997 interim final approval of the Commonwealth of

Pennsylvania's State Implementation Plan (SIP) revision for its

enhanced motor vehicle emissions inspection and maintenance (I/M)

program. The Commonwealth has amended its SIP (since EPA granted

conditional interim approval of that plan) to address these

deficiencies. EPA is removing these conditions by approving two related

SIP revisions submitted by Pennsylvania. These revisions serve to

bolster the Commonwealth's I/M SIP, and to strengthen its I/M program.

The intended effect of this action is to remove several conditions

placed by EPA upon the approval of the Commonwealth's SIP. However, as

Pennsylvania has yet to address several other outstanding rulemaking

conditions on this same SIP, the Commonwealth's I/M SIP will continue

to be conditionally approved, in accordance with the Clean Air Act,

until the Commonwealth satisfies the remaining conditions.

DATES: This direct final rule is effective on November 2, 1998 without

further notice, unless EPA receives adverse comment by October 2, 1998.

If adverse comment is received, EPA will publish a timely withdrawal of

the direct final rule in the Federal Register informing the public that

the rule will not take effect.

ADDRESSES: Comments should be mailed to Marcia Spink, Associate

Director, Office of Air Programs, Mailcode 3AP20, U.S. Environmental

Protection Agency, Region III, 1650 Arch Street, Philadelphia,

Pennsylvania 19103. Copies of the documents relevant to this action are

available for public inspection during normal business hours at the Air

Protection Division, U.S. Environmental Protection Agency, Region III,

1650 Arch Street--14th Floor, Philadelphia, Pennsylvania 19103; and at

the Pennsylvania Department of Environmental Protection, Bureau of Air

Quality, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania

17105.

FOR FURTHER INFORMATION CONTACT: Brian Rehn, (215) 814-2176, or by e-

mail at [email protected].

SUPPLEMENTARY INFORMATION:

Background

On January 28, 1997, EPA published in the Federal Register a

document (62 FR 4004) granting conditional interim approval to

Pennsylvania's enhanced I/M program SIP (submitted March 22, 1996)--

under the authority of both the National Highway Systems Designation

Act of 1995, and the Clean Air Act as amended in 1990. The NHSDA

established key changes to previous EPA I/M requirements. Under the

NHSDA, EPA could not disapprove, or automatically discount the

effectiveness of, a state's I/M program solely because it utilized a

decentralized testing network. Instead, on the basis of a ``good faith

estimate'' by a state, the NHSDA allowed for presumptive equivalency of

such decentralized networks to the benchmark of centralized programs.

Under the NHSDA, EPA was to grant ``interim'' approval of such

decentralized programs, for an 18-month period, at the end of which the

state is required to submit an evaluation of the actual effectiveness

of the enhanced program.

In Pennsylvania's case, EPA granted interim approval of the

enhanced I/M program SIP, but also conditioned approval of that SIP

upon the satisfaction of five major deficiencies, and fourteen minor,

or de minimus, deficiencies. EPA's January 28, 1997 interim conditional

approval stipulated that the five major conditions were to be corrected

within one year of approval, and that the de minimus conditions be

addressed within eighteen months of approval. On January 9, 1998, EPA

published (63 FR 1362) a final rule amending federal I/M requirements

for ongoing evaluation methodologies for state I/M programs--one of the

major deficiencies of Pennsylvania's program identified by EPA in its

January 1998 interim conditional approval. EPA's I/M requirements rule

change also served to amend the related condition of the Commonwealth's

approval. As a result, the deadline for the Commonwealth to satisfy

this condition was extended from February of 1998 to November 30, 1998.

The NHSDA effectiveness demonstration described previously is also

due at the end of the 18-month NHSDA, interim approval period. The

Commonwealth's interim approval period granted under authority of the

NHSDA expires on August 28, 1998.

Status of I/M Program SIP Revisions

On November 13, 1997 and on February 24, 1998, the Commonwealth of

Pennsylvania submitted formal revisions to its State Implementation

Plan (SIP). These November 13, 1997 SIP revisions consist of

Pennsylvania's revised, final I/M program regulations, as well as

supporting information and materials. The February 24, 1998 SIP

revision contains updated emissions benefit computer modeling to

demonstrate that Pennsylvania's program meets federal performance-based

standards for enhanced I/M programs. Both SIP revisions are intended to

partially satisfy ``major'' and ``minor'', or de minimus, deficiencies

identified by EPA in its January 28, 1997 interim conditional approval

of the Commonwealth's March 22, 1996 I/M program SIP submittal.

EPA views the November 13, 1997 and the February 24, 1998 SIP

revisions as separate, independent SIP amendments from the enhanced I/M

SIP revision submitted on March 22, 1996. While these two more recent

SIP revisions are related to the March 1996 enhanced I/M SIP revision

submitted by the Commonwealth, they serve to supplement and to

strengthen the Commonwealth's enhanced I/M program SIP--not to replace

it. EPA is today acting only upon the November

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1997 and the February 1998 SIP revisions submitted by the Commonwealth

to satisfy certain deficiencies of its conditionally approved enhanced

I/M plan, and in so doing EPA is not reopening its January 27, 1997

final rulemaking granting conditional interim approval of the

Commonwealth's enhanced I/M SIP submitted on March 22, 1996.

Since at the time of this rulemaking action, the Commonwealth has

not yet addressed all of the outstanding deficiencies, nor has it

submitted its NHSDA I/M network effectiveness demonstration, EPA cannot

grant full interim approval at this time. That effectiveness

demonstration is not due until August 28, 1998. Therefore, the

Commonwealth's I/M SIP revision cannot receive full approval, and

instead must maintain a form of conditional interim approval. The

Commonwealth has indicated that it will submit its NHSDA effectiveness

demonstration and a revision to address all remaining EPA-identified

deficiencies prior to August 28, 1998. EPA will act upon those

submittals in a separate, later rulemaking action.

Summary of Subject I/M SIP Revisions

The November 13, 1997 SIP revision that is the subject of today's

action contains Pennsylvania's enhanced I/M program regulations for all

applicable areas of the Commonwealth, as well as supporting information

provided to bolster and to better document the conditionally approved

March 1996 I/M SIP submission. The regulations were revised, in part,

to address deficiencies identified in EPA's January 1997 interim

conditional approval of the plan. The supporting information in the

November 1997 SIP revision also includes additional information for the

Commonwealth's demonstration of the adequacy of windshield stickers as

a means to ensure motorist compliance with the enhanced I/M program. In

addition, a Pennsylvania Bulletin notice certifying the list of

counties subject to enhanced I/M that would commence enhanced testing

October 1, 1997 was included as part of that SIP revision. Also

included, was a description of the Commonwealth's emissions waiver

program, as well as a description of the Commonwealth's plan for

providing consumers general information on the program and on the

effectiveness of repair facilities in performing emissions-related

repairs.

The February 24, 1998 SIP amendment contain's Pennsylvania's

modeling demonstration, which shows that its enhanced I/M programs (for

each subject I/M program area) will achieve the desired emissions

benefits by meeting federal performance-based standards.

These two SIP revisions fully satisfy four of the five ``major''

conditions and seven of the fourteen de minimus conditions identified

by EPA in its January 28, 1997 interim conditional approval of the

Commonwealth's enhanced I/M program.

The conditions that EPA has placed upon its interim approval of

Pennsylvania's SIP are codified at 40 CFR 52.2026. Those conditions

which the Commonwealth has satisfied in its November 1997 and February

1998 SIP revisions are detailed below. This includes the following

``major'' conditions:

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

in the Pennsylvania Bulletin by the Secretary of the Pennsylvania

Department of Transportation which certifies that the enhanced I/M

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

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

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

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

commencement date of the enhanced I/M program;

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

November 30, 1998, the final Pennsylvania I/M program evaluation plan

requiring an approved alternative sound evaluation methodology to be

performed on a minimum of 0.1 percent of the subject fleet each year as

per 40 CFR 51.353(c)(3) and which meets the program evaluation elements

as specified in 40 CFR 51.353(c). [Note: The Commonwealth submitted, in

the November 13, 1997 SIP revision submittal, amendments to its

enhanced I/M regulation requiring that the ongoing evaluation of its

program be conducted as specified, above. By November 30, 1998, the

Commonwealth must submit its actual program evaluation plan including

the specific EPA-approved methodology it will use to conduct the

ongoing program evaluation required under its I/M regulation. Submittal

of that program evaluation plan is necessary to satisfy this condition

fully.]

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

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

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

Pennsylvania's existing sticker enforcement system is more effective

than registration denial enforcement;

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

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

which requires and which specifies the following: exhaust test

procedures, standards, and equipment specifications; and evaporative

system functional test methods, standards and procedures; a visual

inspection procedure for determining the presence of or tampering with

of vehicle emission control devices; and a repair technician training

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

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

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

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

modeling assumptions found in the Commonwealth's final performance

standard modeling demonstration (which must satisfy the requirements of

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

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

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

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

be finalized and submitted as a SIP revision to EPA; and

(5) The Commonwealth must perform the final modeling demonstration

that its program will meet the relevant enhanced performance standard

and submit it to EPA, within twelve months of EPA's final interim

rulemaking.

In addition to the above conditions for approval, the EPA required

the Commonwealth to correct fourteen minor, or de minimus deficiencies,

related to approval of the enhanced I/M program. EPA required that

these ``minor'' deficiencies be corrected prior to the end of the 18-

month interim period granted to the Pennsylvania enhanced I/M SIP under

the National Highway Safety Designation Act of 1995. The de minimus

conditions that Pennsylvania satisfied in its November 1997 and

February 1998 submittals are all detailed below and include:

(1) This condition has not yet been addressed. To be addressed in a

future SIP submittal, expected by August, 1998;

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

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

to 9,000 pounds GVWR;

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

implementation of the final full stringency emission standards at the

beginning of the second

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test cycle so that the state can obtain the full emission reduction

program credit prior to the first program evaluation date;

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

data link between the state or contractor and each emission inspection

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

(5) This condition has not yet been addressed. To be addressed in a

future SIP submittal, expected by August, 1998;

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

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

51.360(c)(1);

(7) This condition has not yet been addressed. To be addressed in a

future SIP submittal, expected by August, 1998;

(8) This condition has not yet been addressed. To be addressed in a

future SIP submittal, expected by August, 1998;

(9) This condition has not yet been addressed. To be addressed in a

future SIP submittal, expected by August, 1998;

(10) This condition has not yet been addressed. To be addressed in

a future SIP submittal, expected by August, 1998;

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

emissions inspectors complete a refresher training course or pass a

comprehensive skill examination prior to being recertified and the

final SIP revisions must include a commitment that the Commonwealth

will monitor and evaluate the inspector training program delivery, per

the requirements of 40 CFR 51.367;

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

legally binding document, which adequately addresses how the

Commonwealth's selected contractor will comply with the public

information requirements of 40 CFR 51.368;

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

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

facility performance monitoring program plan and for providing the

motorist with diagnostic information based on the particular portions

of the test that were failed; and

(14) This condition has not yet been addressed. To be addressed in

a future SIP submittal, expected by August, 1998.

EPA has reviewed the Commonwealth's SIP revisions and determined

that they address the above conditions. EPA's detailed review is

contained in the technical support document (TSD) it prepared in

support of this rulemaking action. The TSD is available, upon request,

from the EPA Regional Office listed in the ADDRESSES section of this

document. EPA is approving the Commonwealth's November 13, 1997 and

February 24, 1998 SIP submittals as having satisfied those conditions

set forth above. The purpose of this approval action is to remove

certain conditions EPA had placed upon the Commonwealth's SIP, which

have been addressed by subsequent SIP revisions. EPA is therefore

removing these conditions from EPA's conditional interim approval of

the Pennsylvania I/M SIP.

EPA is approving these SIP revisions without prior proposal because

the Agency views this as a non-controversial SIP amendment and

anticipates no adverse comments on this rulemaking action. However, in

the proposed rules section of this Federal Register publication, EPA is

publishing a separate document that will serve as the proposal to

approve the SIP revision should adverse or critical comments related to

today's rulemaking be filed. This rule will be effective November 2,

1998 without further notice unless the Agency receives adverse comments

by October 2, 1998.

If EPA receives such comments, then EPA will publish a timely

withdrawal of the direct final rule informing the public that the rule

will not take effect. All public comments received will then be

addressed in a subsequent final rule based on the proposed rule. EPA

will not institute a second comment period on this rule. Only parties

interested in commenting on this action should do so at this time. If

no such comments are received, the public is advised that this rule

will be effective on November 2, 1998 and no further action will be

taken on the proposed rule.

Final Action

EPA is approving the Commonwealth's November 13, 1997 and February

24, 1998 SIP submittals as having fully satisfied four major conditions

and seven de minimus conditions identified by EPA in its January 28,

1997 interim conditional approval of the Pennsylvania enhanced I/M SIP

[62 FR 4004]. Upon approval of these SIP revisions, there will still

remain one major, and seven minor conditions on EPA's interim approval

of the Commonwealth's enhanced I/M program SIP. Therefore, EPA is

maintaining conditional interim approval of the Commonwealth's SIP,

until Pennsylvania addresses all remaining deficiencies and submits a

enhanced I/M program network effectiveness demonstration, as required

under authority of the National Highway Systems Designation Act of

1995.

For the purpose of clarity and to avoid confusion over the

remaining conditions upon interim approval of Pennsylvania's plan, EPA

is removing those conditions from 40 CFR 52.2026 which have been

satisfied by the Commonwealth's November 1997 and February 1998 SIP

revisions. EPA is reserving the sections of 40 CFR 52.2026 that

correspond to these conditions, so as not to renumber the outstanding

conditions of approval listed in that section. The list of remaining

conditions upon interim approval of Pennsylvania's enhanced I/M SIP

will now read as follows:

``Major'' Conditions

(1)

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

November 30, 1998, the final Pennsylvania I/M program evaluation plan

requiring an approved alternative sound evaluation methodology to be

performed on a minimum of 0.1 percent of the subject fleet each year as

per 40 CFR 51.353(c)(3) and which meets the program evaluation elements

as specified in 40 CFR 51.353(c). The Commonwealth submitted, in the

November 13, 1997 SIP revision submittal, amendments to its enhanced I/

M regulation requiring that the ongoing evaluation of its program be

conducted as specified, above. By November 30, 1998, the Commonwealth

must submit its actual program evaluation plan including the specific

EPA-approved methodology it will use to conduct the ongoing program

evaluation required under its I/M regulation.

(3)

(4)

(5)

``Minor''/De Minimus Conditions

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

and equipment dedicated to the quality assurance program, data

collection, data analysis, program administration, enforcement, public

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

as per 40 CFR 51.354;

(2)

(3)

(4)

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

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

for it);

(6)

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

legally

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binding document, which adequately addresses how the private vendor

selected to perform motorist compliance enforcement responsibilities

for the Commonwealth's program will comply with the requirements, as

per 40 CFR 51.362;

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

adequately addresses how the private vendor will comply with 40 CFR

51.363, a procedures manual which adequately addresses the quality

assurance program and a requirement that annual auditing of the quality

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

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

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

violations and penalties against inspectors and stations, per the

requirements of 40 CFR 51.364;

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

legally binding document, which adequately addresses how the private

vendor selected by the Commonwealth to perform data collection and data

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

51.365 and 51.366; and

(11)

(12)

(13)

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

information to adequately address the on-road test program resource

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

road testing and information on staffing requirements for both the

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

Nothing in EPA's rulemaking 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 SIP shall be considered separately in light of specific

technical, economic, and environmental factors and in relation to

relevant statutory and regulatory requirements.

I. Administrative Requirements

A. Executive Orders 12866 and 13045

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

regulatory action from E.O. 12866 review. The final 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

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 approval of a SIP submittal under section 110 and

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

but simply approve requirements that a 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 a

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.

C. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a federal mandate that may result in estimated

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

private sector, of $100 million or more. Under Section 205, EPA must

select the most cost-effective and least burdensome alternative that

achieves the objectives of the rule and is consistent with statutory

requirements. Section 203 requires EPA to establish a plan for

informing and advising any small governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a federal mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves pre-

existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

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

D. Submission to Congress and the General Accounting Office

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 direct final approval action for Pennsylvania's

enhanced I/M SIP revision must be filed in the United States Court of

Appeals for the appropriate circuit by November 2, 1998. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule pertaining to the

Pennsylvania enhanced I/M SIP 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, Hydrocarbons,

Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

Dated: August 11, 1998.

Thomas C. Voltaggio,

Acting Regional Administrator, EPA Region III.

40 CFR Part 52 is amended as follows:

PART 52--[AMENDED]

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

Authority: 42 U.S.C. 7401 et seq.

Subpart NN--Pennsylvania

2. Section 52.2026 is amended by removing and reserving paragraphs

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(a)(1), (3), (4), and (5), and paragraphs (b)(2), (3), (4), (6), (11),

(12), and (13).

3. Section 52.2026 is further amended by adding the following two

sentences at the end of paragraph (a)(2):

Sec. 52.2026 Conditional approval.

* * * * *

(a) * * *

(2) * * * The Commonwealth submitted, in a November 13, 1997 SIP

revision submittal, amendments to its enhanced I/M regulation requiring

that the ongoing evaluation of its program be conducted as specified in

this paragraph. By November 30, 1998, the Commonwealth must submit its

actual program evaluation plan including the specific EPA-approved

methodology it will use to conduct the ongoing program evaluation

required under its I/M regulation.

[FR Doc. 98-23324 Filed 9-1-98; 8:45 am]

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