Approval and Promulgation of Air Quality Implementation Plans; Maine; Vehicle Inspection and Maintenance Program; Restructuring OTR Requirements

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[ME059-7008; A-1-FRL-6203-1]

Approval and Promulgation of Air Quality Implementation Plans;

Maine; Vehicle Inspection and Maintenance Program; Restructuring OTR

Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a revision to the Maine State

Implementation Plan (SIP), which was submitted to EPA for approval on

November 19, 1998 by the Department of Environmental Protection (DEP).

This submittal requested further flexibility from requirements

applicable to the Ozone Transport Region (OTR) in light of the current

air quality status of the area. The SIP revision includes sections of

the ``Maine Safety Inspection Manual,'' and additional supporting

material including detailed authorizing legislation (L.D. 2223, ``An

Act to Reduce Air Pollution from Motor Vehicles and to Meet

Requirements of the Federal Clean Air Act''), administrative items, and

a description of the program being implemented. This action is being

taken under Section 110 of the Clean Air Act.

DATES: Written comments must be received on or before January 19, 1999.

Public comments on this document are requested and will be considered

before taking final action on this SIP revision.

ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director,

Office of Ecosystem Protection (mail code CAA), U.S. Environmental

Protection Agency, Region I, One Congress Street, Suite 1100, Boston,

MA 02114-2023. Copies of the State submittal and EPA's technical

support document are available for public inspection during normal

business hours, by appointment, at the Office of Ecosystem Protection,

U.S. Environmental Protection Agency, Region I, One Congress Street,

11th floor, Boston, MA and the Bureau of Air Quality Control,

Department of Environmental Protection, State House--Station No. 17,

Augusta, ME 04333.

FOR FURTHER INFORMATION CONTACT: Robert C. Judge, (617) 918-1045.

SUPPLEMENTARY INFORMATION: On November 19, 1998, Maine submitted a

revision to its State Implementation Plan (SIP) for vehicle inspection

and maintenance (I/M). This submittal requested further flexibility

from requirements applicable to the OTR in light of the current air

quality status of the area. The SIP revision includes Sections of the

``Maine Safety Inspection Manual,'' and additional supporting material

including detailed authorizing legislation (L.D. 2223, ``An Act to

Reduce Air Pollution from Motor Vehicles and to Meet Requirements of

the Federal Clean Air Act''), administrative items, and a description

of the program being implemented. This action is being taken under

section 110 of the Clean Air Act.

I. Clean Air Act Requirements

Section 184(b)(1)(A) of the Act requires certain areas in the Ozone

Transport Region (OTR) to adopt and implement an inspection and

maintenance program meeting EPA's enhanced I/M performance standard.

EPA's I/M rule was established on November 5, 1992 (57 FR 52950). EPA

made significant revisions to the I/M rule on September 18, 1995 (60 FR

48035) and on July 25, 1996 (61 FR 39036). Maine is affected by

requirements of the Act related to I/M in certain areas of the State.

Specifically, under EPA's I/M rule, enhanced I/M programs would be

required in the Portland, Maine ozone nonattainment area. This program

was initially submitted to fulfill Maine's obligations to implement I/M

pursuant to these requirements. The State is only required to submit an

I/M program because of its location in the OTR.

By this action, EPA proposes to approve Maine's submittal. EPA has

reviewed the State submittal against the requirements of the Act and

EPA's final I/M rule. The present version of the SIP submission does

not meet all of the requirements of EPA's final rule for enhanced I/M

in the OTR. The program does, however, contribute to air quality

improvement. Therefore, EPA proposes to approve the program for several

reasons. First, Maine has achieved all of its Clean Air Act control

plan requirements for overall emission reductions without I/M. That is,

the State has submitted an acceptable 15

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percent VOC reduction plan, and based on 1996-1998 data in AIRS, has

achieved attainment of the 1-hour ozone standard without the

implementation of a vehicle I/M program. In addition, Maine and all

areas nearby, including New Hampshire, Eastern Massachusetts, and Rhode

Island appear to have attained the 1-hour ozone standard based on 1996-

1998 data, as discussed elsewhere in the Federal Register.

Additionally, Maine does not contribute to nonattainment of the 1-hour

ozone standard in any areas in the OTR (or elsewhere) where that

standard continues to be violated based on evidence submitted by the

State separately as part of their overwhelming ozone transport

demonstration. Therefore, EPA has concluded that the State should not

need to meet all the requirements for enhanced I/M in the OTR. Section

176A of the Clean Air Act states that the ``Administrator . . . may

remove any State . . . from the [OTR] whenever the Administrator has

reason to believe that control of emissions in that State . . .

pursuant to [the Act requirements for the OTR] will not significantly

contribute to attainment of the standard in the region.'' Implicit in

EPA's authority to remove a State from the OTR entirely is the

authority to eliminate or ``restructure'' specific control requirements

for States that remain in the OTR, provided the State demonstrates that

the control of emissions from such requirement will not significantly

contribute to attainment of the 1-hour ozone standard anywhere in the

OTR.

We propose that the State has met the test of section 176A and it

has requested further flexibility in meeting the Clean Air Act

requirements for I/M in the OTR. EPA believes that Maine's continued

participation in the OTR is beneficial, and that EPA's approval of this

I/M program will improve air quality. Therefore, in light of the above,

EPA is proposing to approve this I/M program as strengthening the SIP

despite the fact that it does not meet all requirements for enhanced I/

M in the OTR. Further, EPA did finalize the NOX SIP call for

22 States and the District of Columbia by notice dated October 27, 1998

(63 FR 57356). Maine was not included among those States, but EPA

intends to conduct modeling to determine whether a SIP revision under

section 110(a)(2)(D)(i)(I) should be required from Maine in the future.

Currently, EPA does not have evidence that emissions from sources in

Maine significantly contribute to 1-hour nonattainment downwind, but if

EPA determines that sources in Maine contribute significantly to

downwind nonattainment, today's action will be revisited.

EPA concludes that an enhanced I/M program is not required in Maine

because control of emissions from an I/M program would not contribute

significantly to attainment of the 1-hour ozone standard in any area of

the OTR. A summary of EPA's analysis of the State's I/M program is

provided below.

II. I/M Regulation General SIP Submittal Requirements

On November 5, 1992 (57 FR 52950), EPA published a final regulation

establishing the I/M requirements, pursuant to sections 182, 184, and

187 of the Act. EPA made significant revisions to the I/M rule on

September 18, 1995 (60 FR 48035) and on July 25, 1996 (61 FR 39036).

The I/M regulation was codified at 40 CFR part 51, subpart S, and

requires States subject to the I/M requirement to submit an I/M SIP

revision that includes all necessary legal authority and the items

specified in 40 CFR 51.350 through 51.373.

III. State Submittal

On November 19, 1998, the State of Maine submitted an I/M SIP

revision for Cumberland County, which includes the Portland area. A

public hearing for the November 19, 1998 submittal was held on October

13, 1998.

The I/M SIP submittal provides for the implementation of I/M in

Maine's Cumberland County beginning on January 1, 1999. Maine will be

implementing an annual, test and repair I/M program which the State has

designed to meet the requirements of EPA's performance standard and

many other requirements contained in the federal I/M rule. Testing will

be overseen by the Department of Public Safety (DPS) and implemented by

individual garages in the existing safety inspection network. Aspects

of the Maine I/M program include: anti-tampering testing for catalytic

converters on 1983 and newer light duty vehicles and trucks, gas cap

pressure testing on 1974 and newer vehicles, and OBD2 checks (beginning

in January 2000), enforcement by the existing windshield safety

inspection stickers, requirements for testing convenience, quality

assurance, data collection, no cost waivers, reporting, test equipment

and test procedure specifications, public information and consumer

protection, inspector training and certification, penalties against

inspectors which perform faulty inspections, and emission recall

enforcement. An analysis of the Maine program, and Maine's

demonstration of how the I/M program meets many of the federal I/M SIP

requirements, is provided below.

A. Applicability

The Maine I/M regulations and authorizing legislation specify that

the I/M program be implemented only in Cumberland County, the minimum

required area under EPA rules, covering the Portland, Maine area.

B. Enhanced I/M Performance Standard

The I/M program was designed, in part, to meet the enhanced I/M

performance standard for ozone precursors causing air quality problems

in Maine. Maine's program was designed to meet the performance standard

for volatile organic compounds (VOC) and nitrogen oxides

(NOx), under 40 CFR 51.351(h) of the I/M rule.

The State submitted a modeling demonstration using the EPA computer

model, MOBILE5b, showing that the enhanced performance standard will be

met. The State's demonstration shows that it expects to achieve the

reductions required by that section of the rule, and explains that they

intend to utilize additional benefits from reformulated gasoline to

ensure that the total emission reductions attributed to I/M meets

federal I/M requirements. On October 30, 1998, at the Governor of

Maine's request, EPA allowed the State to opt-out of the reformulated

gasoline program, contingent upon certain conditions being met. We

expect the State to meet those conditions, which include demonstrating

that they have adopted measures which achieve equivalent reductions. At

this point in time, however, the State cannot demonstrate that it meets

this requirement of the I/M rule.

C. Network Type and Program Evaluation

Maine has chosen to implement a test and repair I/M network program

design. The State has assumed conservative assumptions for credit

claims relative to its network design in its demonstration that it

meets the performance standard. EPA believes that a further

demonstration is not necessary. Furthermore, EPA's OTR low enhanced

rule does not require that the State perform additional program

evaluations beyond the data reporting requirements of the I/M rule in

the future.

D. Adequate Tools and Resources

The State's SIP outlines the level of resources dedicated to the I/

M program, and includes descriptions of the funding expended and the

personnel utilized within DEP and DPS to implement the program. The SIP

also describes the role

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of DPS State Police enforcement personnel to be utilized in enforcing

the program. DEP will also play a role in implementing and analyzing

the program. Finally, the ``per test fee'' collected for each

inspection has been raised, with the additional funds going to the

State Highway fund, which the Transportation Committee of the

legislature can authorize to be spent on I/M program implementation.

The State has described both current and future plans to ensure

that adequate funding is provided to implement the program. While the

State has described in significant detail the plans it has to ensure an

effective program, the State has not dedicated funding to this effort.

E. Test Frequency and Convenience

The Maine SIP revision requires annual inspections for all subject

motor vehicles in Cumberland County. The inspections will be conducted

in concert with the existing schedule for the annual safety inspection

program. Short waiting times and short driving distances are not an

issue since this will be part of the State's existing safety inspection

network, with longstanding stations scattered throughout Cumberland

County prepared to test all subject vehicles.

F. Vehicle Coverage

Maine's I/M program covers all model year gasoline powered light-

duty vehicles and light-duty trucks, registered, or required to be

registered, within Cumberland County, with very limited exceptions.

Based on discussions with the State, EPA evaluated the effect of the

fact that antique vehicles and other similar vehicles are exempt from

testing and determined that such exemptions would not be the cause of

the program not achieving the performance standard. Model year 1974 and

newer vehicles are required to undergo the gas cap pressure test, and

1983 and newer vehicles are required to undergo the catalytic converter

check. Legal authority for the vehicle coverage requirement is

contained in the Maine Safety Inspection rules and the April 1998

authorizing legislation. EPA proposes to approve the submission as a

strengthening of the SIP based on the DEP's submittal, although it has

not met all EPA rule requirements.

G. Test Procedures and Standards

The Maine I/M SIP revision obligates the State to perform anti-

tampering checks of the nature described in the plan submission. The

State will be requiring these checks for 1983 and newer model year

vehicles in the area for the presence of the catalytic converter, and

checks for 1974 and newer vehicles for the presence, proper fit and

function of a gas cap. In addition, the State of Maine will be

requiring OBD2 system checks in accordance with EPA rules, beginning in

2001, with checks of the systems, but no repairs, starting in 2000.

H. Test Equipment

In its November 19, 1998 submittal, Maine's I/M SIP revision

describes procedures to follow to test vehicles. These procedures are

articulated in more detail in the Maine Safety Inspection Manual, and

the State's I/M authorizing legislation.

The SIP does not include a ``real time'' data link, but instead

every vehicle which leaves a station without a passing sticker is

reported to the Department of Public Safety with a ``safety refusal

card.'' The State feels that the fact that these vehicles are reported

to the Department of Public Safety will ensure that vehicle owners

comply, and do not shop around for a ``passing test.'' EPA believes

that the relatively unobtrusive program that the State is implementing

will help ensure that vehicle owners do not ``shop'' for passing

stickers any more than is done under the present safety inspection

program. For reasons described elsewhere in this notice, EPA is

proposing approval of this as a SIP strengthening measure, but it does

not meet EPA I/M requirements. The State does not require a ``real

time'' data link to prevent this sticker shopping, nor to collect the

requisite data required under the I/M rule.

I. Quality Control

The Maine I/M SIP narrative outlines quality control procedures.

However, since no significant test equipment is utilized, it is

minimal. Efforts to ensure that documents related to the inspection

remain secure are already in place and enforced by the DPS as part of

the existing safety inspection program.

J. Waivers and Compliance via Diagnostic Inspection

Since Maine is implementing largely an anti-tampering program, it

will not be issuing any waivers whatsoever, and this is approvable.

Maine will require the replacement of gas caps which fail the

pressure test.

K. Motorist Compliance Enforcement

The State of Maine has chosen to use a program of windshield

sticker based enforcement, based on its current safety inspection

program. Any vehicle driven without a valid sticker will ultimately be

caught by law enforcement officials. The motorist compliance

enforcement program will be implemented primarily by the Maine

Department of Public Safety (DPS). The enforcement strategy is

described in Maine's November 19, 1998 submittal. The enforcement

strategy is designed to ensure a high rate of compliance rate for all

vehicles within a short time of the compliance deadline. As described

in the November 19, 1998 submittal, this will be accomplished by

surveillance by law enforcement officials to identify uninspected and

unregistered vehicles. Vehicle owners of those vehicles operated

without a valid safety inspection sticker are fined, just as those that

are driven unregistered. Maine feels that the fact that windshield

safety inspection stickers are more easily identified helps ensure a

higher rate of compliance than with the less visible registration

stickers required to be on license plates. Maine does have a penalty

system whose purpose is to deter noncompliance, but the penalties

imposed may not be a sufficient incentive to deter noncompliance if a

vehicle owner expects that significant repairs will be required upon

inspection.

This program is not viewed as intrusive to the general public, and

it is not likely that citizens of Maine's Cumberland County will take

additional steps to avoid this I/M program. EPA is comfortable that, in

light of the type of vehicle ``testing'' being proposed, Maine's

program will be enforced in a manner commensurate with the type of

program implemented, and emission reductions expected. However, this

section of the State's program does not meet Clean Air Act requirements

to have the program based on vehicle registration. Further, while the

State did make a demonstration that this mechanism was both a ``pre-

existing'' enforcement mechanism and that it would be more effective

than registration denial would be, EPA has not concurred with those

assertions. Further, the State has not committed to ensuring the

continued effectiveness of its sticker based enforcement mechanism. In

general, EPA believes that a registration based program would be more

effective than sticker based enforcement since a vehicle can be

registered without being inspected, but cannot be inspected without

being registered. Further discussion on the State's enforcement

demonstration is included in the TSD prepared for this notice.

Nevertheless, for reasons outlined elsewhere in this notice, EPA

believes that this program should be

[[Page 69597]]

approved because it will strengthen the SIP, despite the fact that it

does not meet the requirements for enhanced I/M under the Clean Air

Act. The legal authority to implement and enforce the program is

included in the Maine State law and in DPS rules.

L. Motorist Compliance Enforcement Program Oversight

The Maine I/M SIP revision provides that EPA may perform regular

auditing of its enforcement program. The State does not describe its

own methods for ensuring that the program is enforced and overseen

sufficiently. The State's efforts for the motorist compliance

enforcement program do not meet federal I/M rule requirements.

M. Quality Assurance

The November 19, 1998 submittal from Maine states that the quality

assurance program will be developed. Since that program has not been

developed, what was submitted does not meet EPA requirements.

N. Enforcement Against Contractors, Stations and Inspectors

The Maine I/M SIP revision describes specific sanctions available

in its enforcement against stations and inspectors which fail to give

proper inspections. An inspector or station can have its authority to

inspect suspended if improper inspections are performed. Other

penalties include fines, warnings, and revocations. This section of the

State's program is appropriate for the type of program the State is

implementing for the purpose of strengthening the SIP.

O. Data Collection, Analysis, and Reporting

The Maine I/M SIP provides for collecting test data to link

specific test results to specific vehicles, I/M program registrants,

test sites, and inspectors. The SIP lists the specific types of test

data and quality control data which will be collected, which include

all the relevant data points of 40 CFR 51.365. We expect that the data

collected would therefore include, at a minimum: station identification

number, technician name, customer name, vehicle ID and license plate

number, vehicle make, model, model year and mileage, pass/fail

determination, reason for failure, inspection sticker number, and

repairs performed.

P. Inspector Training and Licensing or Certification

The November 19, 1998 submittal describes the training and the

testing that is required of each inspector, prior to being certified to

perform these tests.

Q. Improving Repair Effectiveness

In the November 19, 1998 submittal, the State committed to

providing technical assistance and training opportunities for the

repair industry. The DEP does intend to work with the repair industry

to provide additional OBD2 training in the future.

R. Compliance With Recall Notices

The Maine I/M SIP will ensure that vehicles subject to its I/M

program, that are included in either a voluntary emission recall or a

remedial plan determination pursuant to the CAA, have had the

appropriate repairs made prior to the inspection. Lists of vehicles

that have received recall notices will be provided to the inspection

stations, by coordination between the DEP and DPS.

S. On-Road Testing

Maine has stated that it has the legislative authority to move

forward with an on-road testing program. It intends to design a program

which meets EPA requirements in the future, and the program will be

conducted either by remote sensing or by ``on-road'' inspections.

T. Concluding Statement

A more detailed analysis of the State's submittal is contained in

the EPA's technical support document prepared for this action. The TSD

is available from the EPA New England Regional office listed above. The

Maine regulations and accompanying materials contained in the SIP

represent an acceptable I/M plan for the purpose of strengthening the

Maine SIP.

IV. Proposed Action

EPA is proposing to approve the SIP revision submitted by Maine on

November 19, 1998 as a revision to the SIP. The SIP revision proposes

approval of the State's I/M program. While the I/M program does not

meet all of the requirements of the enhanced I/M rule, EPA has

determined, based on the State's showing that additional reductions

from a fully enhanced I/M program will not significantly contribute to

attainment of the 1-hour ozone standard anywhere in the OTR, that the

requirements for an enhanced I/M program are not required in Maine.

Therefore, EPA is approving the Maine I/M program as strengthening the

SIP.

EPA is soliciting public comments on the issues discussed in this

proposal or on other relevant matters. These comments will be

considered before EPA takes 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 action.

V. Administrative Requirements

A. Executive Order 12866

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

regulatory action from Executive Order (E.O.) 12866, entitled

``Regulatory Planning and Review.''

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget, a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 12875 requires EPA to

develop an effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.''

Today's rule does not create a mandate on state, local or tribal

governments that does not already exist as a matter of State law. EPA

is simply approving a state regulation under the Clean Air Act.

Accordingly, the requirements of section 1(a) of E.O. 12875 do not

apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the environmental health or safety effects of the planned rule on

children, and explain why the planned regulation is preferable to other

potentially effective

[[Page 69598]]

and reasonably feasible alternatives considered by the Agency.

This rule is not subject to E.O. 13045 because it is not

``economically significant'' as defined under E.O. 12866, and does not

involve an action that addresses environmental or safety risks.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. This action does not involve

or impose any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. 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 proposed 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).

F. Unfunded Mandates

Under sections 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

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 proposed approval action 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.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,

Reporting and recordkeeping requirements.

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

Dated: December 9, 1998.

Robert Perciasepe,

Assistant Administrator, OAR.

[FR Doc. 98-33475 Filed 12-16-98; 8:45 am]

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