Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Enhanced Inspection and Maintenance Program Network Effectiveness Demonstration

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 122-4086; FRL-6355-2]

Approval and Promulgation of Air Quality Implementation Plans;

Pennsylvania; Enhanced Inspection and Maintenance Program Network

Effectiveness Demonstration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision

supplement submitted by the Commonwealth of Pennsylvania on August 21,

1998. This supplement consists of a demonstration of the effectiveness

of the Pennsylvania SIP's enhanced motor vehicle emissions inspection

and maintenance (I/M) program.

It includes a demonstration of the effectiveness of Pennsylvania's

I/M testing network to satisfy the requirements of the National Highway

Systems Designation Act of 1995 (NHSDA). The effect of this action is

to approve the Commonwealth's demonstration of the effectiveness of its

I/M program testing network, and to remove all de minimus conditions

related to EPA's approval of Pennsylvania's program under the NHSDA.

There is one remaining major condition of EPA's January 28, 1997

approval of Pennsylvania's I/M program related to the methodology for

conducting on-going evaluation of the enhanced I/M program.

Pennsylvania addressed that condition in a separate SIP submittal made

to EPA on November 26, 1998. EPA will take separate action upon that

submittal.

EFFECTIVE DATE: This final rule is effective on July 8, 1999.

ADDRESSES: 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, 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 via e-

mail at Rehn.B[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

On September 16, 1998, EPA published a notice of direct final

rulemaking (DFR) to approve the Commonwealth of Pennsylvania's August

21, 1998 I/M program SIP supplement (see 63 FR 49436). Pennsylvania's

August 21, 1998 SIP supplement included the Commonwealth's enhanced I/M

program network effectiveness demonstration, as required by the NHSDA.

It also addressed seven de minimus I/M program deficiencies EPA

identified in its January 28, 1997 interim conditional approval of

Pennsylvania's I/M program SIP (see 62 FR 4004).

Opportunity for comment was provided, however, as EPA also

published a proposed rule (63 FR 49517) in the same volume of the

Federal Register in which the DFR appeared, proposing to approve the

Commonwealth's August 21, 1998 SIP submission. The preamble of the DFR

[[Page 30400]]

stated that in the event EPA received adverse comments, the DFR would

be withdrawn and public comments would be considered pursuant to the

proposed rule. Because EPA received four letters of adverse comment, it

withdrew the DFR on October 21, 1998 (53 FR 56086). The public comments

submitted relevant to the September 16, 1998 proposed rule (63 FR

49517) are addressed in the ``Summary of Public Comments/Response to

Public Comments'' section of this document.

The rationale and the specifics of EPA's proposed action were

explained in the September 16, 1998 DFR referenced in the accompanying

notice of proposed rulemaking (NPR) and will not be restated.

II. Summary of the Public Comments/Response to the Public Comments

This section discusses and summarizes the comments submitted during

the comment period for the NPR published in the September 16, 1998

Federal Register. This section also contains EPA's formal response to

those comments. Comments were submitted by the Clean Air Council,

Gordon-Darby, Inc., the New Jersey Department of Environmental

Protection (DEP), and by Francis W. Jackson (a private citizen of

Pennsylvania). Only those comments relevant to EPA's September 16, 1998

proposed action to approve the Commonwealth's August 21, 1998 SIP

supplement are addressed in today's rulemaking. Copies of the comment

letters are available at the EPA Regional Office listed in the

ADDRESSES section of this final rule. Comments have been summarized and

grouped by commenter, and EPA's response directly follows each

summarized comment.

New Jersey Department of Environmental Protection

Comment: The commenter states that any action by EPA to approve

Pennsylvania's submittal weakens efforts by other states to implement

cost-effective and environmentally defensible programs.

Response: EPA granted states flexibility to develop their

respective enhanced I/M programs through its 1992 I/M Rule. This

flexibility was further expanded in 1995 with passage of the NHSDA.

This flexibility was intended to allow states to tailor programs unique

to their needs, and to provide for cost-effective programs, while still

achieving the desired emissions reduction benefits. EPA does not

believe that approval of Pennsylvania's August 1998 SIP supplement

jeopardizes efforts by other states to implement their chosen programs.

EPA believes that the data submitted by Pennsylvania adequately

supports the network effectiveness demonstration for the Commonwealth's

chosen network. Other states are free to submit whatever data they

believe is appropriate to support a network effectiveness demonstration

for their chosen network.

Comment: The commenter states that given the national implications

of EPA's approval action, it is incumbent upon EPA to seek all

information supporting its action and to allow interested parties

sufficient time to comment on Pennsylvania's program.

Response: At the request of a commenter, EPA extended the comment

period on its proposed action to approve Pennsylvania's NHSDA

demonstration SIP submittal to November 16, 1998, a full 30 days beyond

the original deadline of October 16, 1998 specified in the September,

16 1998 NPR. EPA believes that this extended comment period was

adequate to allow all interested parties to review the relevant

materials and to submit their comments. EPA has taken into

consideration all comments received during the extended comment period

in its decisions related to this final rule.

Comment: The commenter states that Pennsylvania's NHSDA

demonstration provides no qualitative or quantitative, incremental

assessment of the program subsequent to implementation. The commenter

further states that Pennsylvania's decision not to submit a program

evaluation per the guidelines developed by the Environmental Council of

States (or ECOS) would establish a precedent allowing other NHSDA

states to follow suit and not to submit specific qualitative assessment

information to either the participating ECOS or to EPA. The commenter

further states that approval of Pennsylvania's demonstration would make

it difficult for other states to retain the resources and support

necessary to develop and submit meaningful, qualitative program

evaluation information. Finally, the commenter states that EPA's

approval of Pennsylvania's demonstration will not result in a

meaningful quantitative ongoing program evaluation, as required by 40

CFR 51.353(c) and amended in 63 FR 1362.

Response: The Conference Report to the NHSDA directed EPA to

approve, on an interim basis, any state program utilizing a

decentralized test network, if the emissions reductions claimed by the

state were based upon available information about actual effectiveness.

Final approval of the proposed credit estimates would then be granted

if the interim program demonstrated that the credits were appropriate.

The NHSDA does not require Pennsylvania to provide an incremental

assessment of its program since the inception of the enhanced program.

What is provided by the Commonwealth's program effectiveness

demonstration is a description of the steps taken to implement the

commitments contained in its ``Good Faith Estimate''--submitted in 1996

as a basis for interim approval of its program under the NHSDA. That

``Good Faith Estimate'' served as Pennsylvania's justification of its

credit claims for its decentralized program. The August 1998 ``NHSDA

Description of Program Effectiveness'' document describes

Pennsylvania's efforts to ensure its program is operating as

effectively as intended and supplies enhanced program operating data to

substantiate Pennsylvania's claims for emission reduction credits from

its program. The data program summary is based upon data gathered

during the first year of operation, and includes: an overview of

participating test stations, information on individual emissions

inspectors, a summary of overt and covert audit efforts, a summary of

remedial activities triggered by audits, and examples of the

computerized record audit process.

EPA has not mandated the use of the guidelines developed by ECOS

for NHSDA demonstrations. EPA made clear during the development of

those guidelines that it could not bind states to comply with such

voluntary guidelines. The Commonwealth has made it known to the

participants of the ECOS process from the outset that it would not be

bound by ECOS's guidelines. EPA believes that the Commonwealth's

``NHSDA Description of Program Effectiveness'' provides a reasonable

assessment of its program to serve as the basis for EPA to determine

that it demonstrates equivalency with a centralized program, per the

requirements for such demonstrations in Section 348 of the NHSDA. The

data is credible in that it provides actual data from the operation of

the enhanced program. EPA believes this data supports approval of the

Commonwealth's demonstration under section 348(c)(3) of the NHSDA.

With regard to the comment that Pennsylvania's approach to a NHSDA

demonstration sets a precedent for future demonstrations, by this point

in time most states with decentralized I/M programs developed pursuant

to the NHSDA have already selected the methods for evaluation of their

programs, and in most cases should have already submitted their

[[Page 30401]]

demonstrations to EPA. EPA finds that the Commonwealth's demonstration

provides actual data on the program elements found in its 1996 Good

Faith Estimate. Moreover, EPA will review each affected state's NHSDA

demonstration, individually, and render an objective finding based upon

each state's submittal. Contrary to the notion that this demonstration

allows other states to submit demonstrations that do not quantitatively

evaluate incremental program benefits, EPA believes the statute does

not expressly require or prohibit that type of demonstration in all

cases.

Finally, EPA does not agree that approval of the Commonwealth's

NHSDA demonstration will undermine efforts by Pennsylvania and other

states to conduct meaningful ongoing evaluations of I/M programs and

their benefits as required by 40 CFR 51.351(c). EPA revised those

requirements on January 9, 1998 (see 63 FR 1362), and on October 30,

1998, EPA published guidance to provide options for states in choosing

scientifically sound ongoing program evaluation methodologies. EPA

fully expects states to comply with the revised requirements by

selecting an approved methodology for conducting the ongoing program

evaluations. On November 26, 1998, Pennsylvania submitted a SIP

revision supplement consisting of its chosen methodology from the list

of options published by EPA to comply with the ongoing I/M program

evaluation requirements of 40 CFR 51.351(c). EPA will take separate

action, in the near future, upon that submittal.

Comment: The commenter believes that states should not be allowed

to avoid submitting meaningful information to demonstrate the

effectiveness of their I/M programs--even in light of recent

flexibility granted to states in designing and implementing I/M

programs.

Response: EPA believes that the ongoing program evaluation,

required by 40 CFR 51.351(c), in conjunction with the data analysis and

reporting requirements of 40 CFR 51.366, will provide meaningful

information about enhanced I/M program effectiveness. By approving

Pennsylvania's NHSDA demonstration, EPA has in no way reduced or

eliminated the Commonwealth's obligation to conduct ongoing enhanced I/

M program evaluations under 40 CFR 51.351. Neither does the fact that

EPA has provided states with flexibility in adopting and implementing

enhanced I/M programs reduce those states' obligation to conduct

ongoing enhanced I/M program evaluations under 40 CFR 51.351.

Clean Air Council

Comment: The commenter believes EPA should wait to approve

Pennsylvania's I/M program because there is insufficient data to

support finding that Pennsylvania's program should receive full credit.

The Council recommends EPA withhold final rulemaking on the adequacy of

Pennsylvania's program for at least six months, until the program can

be better evaluated.

Response: The NHSDA established timeframes for the development and

implementation of I/M programs by states, and the Clean Air Act

establishes timeframes for EPA to take rulemaking action upon such

programs. Pennsylvania submitted a redesigned I/M program SIP on March

22, 1996, under the authority granted by the NHSDA. EPA's January 28,

1998 rulemaking action to grant conditional interim approval of that

SIP revision started an eighteen month interim approval period, under

the authority of the NHSDA. During that period, the Commonwealth was to

adopt final regulations, to commence operation of the enhanced I/M

program, and to submit a demonstration of actual network effectiveness

based upon data collected during the interim approval period.

Pennsylvania's interim approval period expired on August 28, 1998.

The NHSDA provides for no extension of this interim approval period.

Under the timeframes set forth by the NHSDA, EPA was therefore

compelled to take expeditious action upon the Commonwealth's August 21,

1998 SIP amendment to prevent the lapsing of the interim approval under

the NHSDA, which could result in the imposition of sanctions. EPA

believes that it has enough information in the data submitted by

Pennsylvania to determine the effectiveness of the Pennsylvania

program.

Comment: Clean Air Council expresses concern that Pennsylvania is

overemphasizing compliance assistance at the expense of program

enforcement, thus jeopardizing the integrity of the program. The Clean

Air Council is also concerned that Pennsylvania had not yet selected

its methodology for performing the required ongoing program

evaluations.

Response: EPA's I/M rule (40 CFR part 51, subpart S) requires the

establishment of minimum penalties for violations of program rules and

procedures that can be imposed against stations, contractors, and

inspectors. Pennsylvania's regulation includes a penalty schedule which

provides for minimum penalties against both enhanced I/M stations and

inspectors. This schedule meets the minimum limits set forth in EPA's

I/M rule, at 40 CFR 51.364. Pennsylvania also has the authority to

temporarily suspend station and inspector licenses immediately upon

discovery of program rule violations.

Use of auditing and follow-up enforcement serve to further ensure

the integrity of the I/M program. Pennsylvania, through its oversight

contractor MCI, uses professionals to conduct both overt and covert

audits. Pennsylvania's ``NHSDA Description of Program Effectiveness''

document indicates that the Commonwealth conducted over 2,000 overt and

covert audits between October, 1997 and August, 1998. Pennsylvania

routinely conducts computerized record audits. Through these audits,

Pennsylvania has uncovered violations stemming from activities

classified as fraudulent, improper, and careless. While the

Commonwealth has focused heavily on compliance assistance during the

early stage of implementation, EPA finds that Pennsylvania has

sufficient enforcement resources to oversee its decentralized network

of testing stations and inspectors in a capable manner. The

Commonwealth has acknowledged that it has been judicious in its use of

its punitive enforcement authority during this early stage of enhanced

program implementation. While a long-term strategy that relied too

heavily upon compliance assistance versus more the punitive enforcement

mechanisms available to the Commonwealth could jeopardize its program's

integrity, there is no basis to find that Pennsylvania intends to so

implement the enforcement of its enhanced I/M program once the program

is fully established. Moreover, EPA does not agree with the commenter

that Pennsylvania's enforcement history for the first year of program

operation limits that program's network effectiveness with respect to

requirements for the NHSDA demonstration. EPA believes the state should

provide technical/remedial training assistance in the early stages to

ensure smooth operation of the new program.

The commenter stated that Pennsylvania had not selected a

methodology for its ongoing program effectiveness evaluation at the

time of its August 1998 submittal, and that such information would be

useful in evaluating network effectiveness. EPA's conditional interim

approval of Pennsylvania's SIP did not require the

[[Page 30402]]

submission of an ongoing program evaluation methodology until November

30, 1998, as codified at 40 CFR 52.2026(a)(2). At the time Pennsylvania

submitted its network effectiveness demonstration, EPA had not yet

issued guidance on alternative methods to conduct an ongoing program

evaluation. Therefore, EPA cannot base its approval of Pennsylvania's

NHSDA demonstration upon a lack of data from the Commonwealth's ongoing

program evaluation. On October 30, 1998, EPA did publish guidance to

provide options for states in choosing scientifically sound ongoing

program evaluation methodologies. Pennsylvania submitted its choice of

evaluation methodology to EPA on November 25, 1998. EPA will take

separate action, in the near future, upon that submittal.

Gordon Darby

Comment: The Environmental Council of States (ECOS) has developed a

program evaluation process that includes both qualitative and

quantitative measures. State participation in this process is

voluntary. The purpose of the ECOS process was to provide a framework

to ensure consistent, technically credible state submittals.

Pennsylvania participated in the ECOS group and helped develop the

process, but decided it was not bound by the process. The commenter

fears this decision may undermine other NHSDA states' efforts to submit

qualitative, and subsequently, quantitative demonstrations of program

effectiveness pursuant to the ECOS recommendations.

Response: This comment is similar to a comment submitted by the New

Jersey DEP. See EPA's response to that comment for further information.

Pennsylvania's participation in the ECOS process to develop

demonstration guidelines does not mean that the Commonwealth was bound

to follow the resulting ECOS guidelines. EPA does not support the

commenter's position that failure by a state to abide by the non-

binding peer criteria jeopardizes the credibility of that state's NHSDA

demonstration. EPA cannot disapprove a state's SIP submission on the

basis that it failed to meet voluntary procedures developed by a group

of peer states. EPA's approval decision is based upon the merits of the

Commonwealth's demonstration. EPA believes that the Commonwealth's

submittal is adequate to serve as its program effectiveness

demonstration.

Comment: The commenter states that, in the past, EPA has attempted

to assist states in determining program effectiveness through audits

and other technical assistance. The commenter then states that since

passage of the NHSDA in 1995, EPA has largely allowed states to

implement whatever type of program they want, with the provision that

each state would need to later demonstrate the projected effectiveness.

The commenter then states that EPA's proposal to approve Pennsylvania's

NHSDA demonstration instead appears to allow Pennsylvania to avoid

having to submit meaningful information regarding program

effectiveness.

Response: Since the passage of the revised Clean Air Act in 1990

and the NHSDA in 1995, EPA has provided considerable assistance to

states in order to secure the adoption and implementation of effective

enhanced I/M programs in accordance with federal law. EPA does not find

that applicable federal law mandates a ``one size fits all'' approach

to the design of states' enhanced I/M programs. EPA does not interpret

the NHSDA to require states to determine overall program effectiveness,

since EPA has already determined the effectiveness of the model program

supporting the performance standard. Rather, states must merely

demonstrate that the unique flexibility options they have selected,

with particular emphasis on test network type, have not adversely

impacted the credits claimed for their programs in relation to the

model program.

Comment: The commenter states that Pennsylvania's ``Good Faith

Estimate'' ignores the repair side of the I/M equation, and that all of

the data in its demonstration focuses on vehicle inspection results,

with no data presented on even basic repair results. The commenter

asserts, therefore, that it is not possible to verify that the

``enhanced'' Pennsylvania program is significantly reducing vehicle

emissions beyond its previously enacted basic I/M program.

Response: Pennsylvania chose to study repair effectiveness

indirectly, through comparison of initial and retest data on the number

of vehicles that passed and failed. That analysis indicates that

approximately 35% of vehicles that failed initial testing passed their

first retest within 30 days of initial testing. This data seemingly

indicates the percentage of vehicles getting effective repairs prior to

their first retest. EPA does not interpret the NHSDA to specifically

require states to directly study repair effectiveness, and to include

such data in their NHSDA demonstrations.

Comment: The commenter takes exception to Pennsylvania's approach

to evaluation of the program based upon MOBILE5 modeling because

Pennsylvania has stated, in the past, that the current version of the

MOBILE emissions estimation model does not reflect reality,

particularly with relation to the model's 50% credit discount for test-

and-repair programs. The commenter also states that the use of the

MOBILE5 model to evaluate the program overlooks substantial recent data

which suggests that MOBILE5 overpredicts I/M benefits, and that EPA is

consequently working on major I/M credit changes for use in a future

version of the model--MOBILE6. The commenter, therefore, believes that

it does not make sense to evaluate any state's I/M program at this time

using MOBILE5.

Response: Although EPA is in the process of updating the MOBILE

emissions model, until EPA completes that process MOBILE5 remains an

accepted program evaluation tool in its current version for use in

determining compliance with the I/M performance standard, per the

requirements of 40 CFR 51.351. States must correctly evaluate their

programs under the NHSDA and cannot wait for EPA to complete its

revision of the MOBILE model to begin program evaluation. Further, EPA

believes that the commenter took Pennsylvania's statement in its

``NHSDA Description of Program Effectiveness'' out of context. EPA

believes that Pennsylvania meant to state, as background information,

that MOBILE5 was the tool used to determine Pennsylvania's credit

presumptions for the program, prior to implementation of the program.

EPA did not take the modeling of the performance standard into

consideration in its deliberation upon Pennsylvania's NHSDA network

effectiveness demonstration. EPA expects the ongoing program

demonstration, required by 40 CFR 51.353, to serve as an additional

program effectiveness evaluation tool. Additionally, information from

the data analysis to be conducted and submitted to EPA under the

requirements of 40 CFR 51.366 may also help to serve that role.

Comment: The commenter states that in the program effectiveness

demonstration, Pennsylvania asserted that its program was unique and

was still being phased-in, and therefore could not be compared to

another state's test-only program. The commenter goes on to state that

all inspection programs are different in various ways, but regardless

of program design, states can be held to the same ultimate criterion--

the degree of reduction achieved in average emissions. The commenter

[[Page 30403]]

believes the [ECOS] concept of analyzing average emissions levels of

vehicles having gone through the inspection program is fundamentally

sound. The commenter states that Pennsylvania either does not

understand or has misinterpreted the ECOS approach.

Response: Neither the statutes nor EPA's regulations mandate the

use of ECOS's approach in conducting the demonstration required by the

NHSDA. Pennsylvania chose not to utilize the ECOS model for such a

demonstration, and whether or not the ECOS criteria is a sound approach

is not an issue for decision under this rulemaking. Thus, whether all

programs could be evaluated through an analysis of average emission

reductions is not relevant to this rulemaking. The only issue is

whether the data submitted supports Pennsylvania's program

effectiveness claims. EPA has concluded that it does.

Comment: The commenter alleges that the Commonwealth's submittal

cannot be justified on technical grounds, and takes exception to EPA's

comment in the direct final rule that ``the variety of data supplied

encompasses those implementation issues that most significantly impact

program effectiveness.'' Moreover, the commenter feels that since no

emissions data was included, it is impossible to determine to what

degree vehicles are being repaired.

Response: EPA has analyzed the program data submitted as part of

the Commonwealth's ``NHSDA Program Effectiveness Demonstration''. The

data is set forth in detailed summaries of emissions test and retest

results, and stratified by model year and test type. The data is

separated by vehicles that undergo a retest, those that passed a

retest, and those that failed a retest. Given that Pennsylvania's

enhanced program had been implemented for less than one year at the

time it was required to submit this demonstration under the NHSDA, EPA

believes the Commonwealth has made a reasonable showing of data towards

meeting NHSDA demonstration requirements, and that approval of

Pennsylvania's program is warranted.

Comment: The commenter asserts that Pennsylvania's phase-in

hydrocarbon (HC) and carbon monoxide (CO) standards for the

Acceleration Simulation Mode (ASM) test are less stringent than the

standards used in the previous basic idle test program, and that this

is demonstrated by comparing the initial HC/CO fail rates of the two-

speed idle (TSI) and ASM tests; the TSI rate is 6.0% while the ASM rate

is 3.4%. The commenter goes on to state that while phase-in standards

for nitrogen oxides, and final standards for all three pollutants

represent increased test stringency, given other problems identified in

the submittal, it appears that an increased failure rate is no

guarantee of a more effective program.

Response: The initial phase-in ASM standards being used during the

first phase of implementation of the Commonwealth's I/M program are

based upon EPA's recommendation, to allow states time to phase in

repair technician training and better overall repair effectiveness

during the first cycle of program operation. EPA expected the use of

these standards to result in relatively low failure rates. EPA agrees

that pass/fail results do not, in and of themselves, guarantee an

effective program. However, the purpose of the demonstration required

under the NHSDA was not to compare the failure rates of the new

enhanced I/M program to that of Pennsylvania's previously existing

``basic'' program. EPA approved Pennsylvania's use of phase-in

standards in a separate rulemaking and those standards are not the

subject of a today's rulemaking. Given all the differences between the

design and implementation of the Philadelphia five-county area's

previous idle program and its current phase-in ASM testing program,

there is little value in comparing direct failure rates between the

two. EPA believes it is too early in the life cycle of Pennsylvania's

enhanced I/M program to make a judgement on the impacts of low failure

rates.

Comment: The commenter states that no data are presented on whether

the new test produces larger HC and CO emission reductions, on average,

for vehicles that are repaired compared to repairs that occurred under

the previous basic program. The commenter feels that failure rate data

provides no insight into the degree of emissions reductions being

achieved.

Response: While this type of evaluation would be beneficial in

determining the quantitative benefits from an enhanced I/M program, the

Agency does not believe such an analysis is required to satisfy the

requirements of the NHSDA. While Pennsylvania's 1996 ``Good Faith

Estimate'' is based upon specific improvements to Pennsylvania's

existing basic I/M program, EPA did not evaluate the Commonwealth's

``NHSDA Program Demonstration'' on the basis of the level of

improvement over the existing basic program. EPA believes that the

enhanced program data submitted by the Commonwealth stands on its own

for purposes of this demonstration, and supports the credit claims

requested by the state.

Comment: Pennsylvania's test summary data indicate extremely low

visual failure rates. Out of 1.6 million tests performed for the

demonstration, only 0.1% failed for one of the five visual checks

performed. Low failure rates are often an indication of poor or

fraudulent inspector performance.

Response: EPA agrees that the visual inspection failure rates cited

in the Commonwealth's ``NHSDA Description of Program Effectiveness''

are low. Pennsylvania's own NHSDA demonstration confirms, through state

audit summaries, that visual inspections were often not done or not

done properly. Pennsylvania is addressing this program implementation

issue (versus NHSDA demonstration approval issue) of low visual failure

rates through use of covert and overt audits, and stronger enforcement.

Comment: The commenter states that the data shows high retest

failure rates, with roughly 38% of vehicles failing the post-repair

retest. The commenter goes on to state that a high retest failure rate

may indicate ineffective repairs. It is unknown how many of these

vehicles received repair waivers, continued to try to pass the test, or

``disappeared'' from the program.

Response: The Commonwealth is still in the process of ramping up

the program. EPA expects relatively low repair effectiveness for a

newly enacted enhanced I/M program that employs a different test

method. The Agency will further evaluate first and subsequent retest

results, along with waiver issuance results, when it reviews the

Commonwealth's ongoing program evaluation reports, per the requirements

of 40 CFR 51.366.

Comment: The commenter states that Pennsylvania's data shows that a

high number of vehicles ``disappear'' after failing an initial test

(i.e., roughly 45% of all initially failing vehicles), and that it is

unclear if this data might have been influenced by the improper

categorization of initially tested vehicles versus retested vehicles,

or vehicles that were waived (but not counted as such) prior to retest.

Notwithstanding, the commenter asserts, the data suggests the program

is not causing repair of nearly as many vehicles as the initial failure

rates suggest. The commenter then states that Pennsylvania's submittal

indicates that roughly 36% of vehicles that failed were repaired and

retested within 30 days, which seems contrary to the expectation that

the majority of vehicles in a test-and-repair program would receive

repairs at the same station soon after the initial test.

[[Page 30404]]

Response: According to Pennsylvania's I/M regulations, if a vehicle

does not have a valid emissions sticker, it cannot be operated within

the I/M program area. It is expected that during the first year of

implementation of an enhanced I/M program some vehicles will

``disappear'' because there is a culling out of the gross polluters

from the fleet. Eventually, the road-side testing could assist in

identifying legally registered vehicles operating in the area without

valid emissions credentials.

Comment: The commenter expressed concern that EPA has accepted

Pennsylvania's conclusions regarding the program summary data at face

value without performing an independent analysis of the summary or raw

test data. Also the commenter is troubled that EPA did not perceive

issues with the Commonwealth's demonstration that could be garnered

through a simple analysis of the presented summary data. The commenter

believes there is a fundamental problem in trying to perform such a

program evaluation in the total absence of vehicle-specific emissions

data.

Response: EPA does not agree with the commenter that vehicle-

specific emissions data is necessary to perform the demonstration

required under section 348 of the National Highway Systems Designation

Act. Summary data showing the results, on average, of the entire tested

fleet can be used to perform such an analysis. We have reviewed the

Commonwealth's demonstration and have determined that the program has

met the spirit of the law in proving its program effectiveness. While

we do not dispute the commenter's assertions that vehicle specific data

is necessary to analyze the benefits of the program, such an analysis

is not necessary to satisfy the requirements of the NHSDA for

demonstration of the effectiveness of a decentralized testing network.

Francis W. Jackson

Comment: Mr. Jackson submitted comments relevant to the

effectiveness of Pennsylvania's program in helping to attain the ozone

standard, the cost-effectiveness of an ASM compared to 2-speed idle

testing, as well as the cost-effectiveness of decentralized I/M to

centralized I/M. Additionally, the commenter reflects upon

Pennsylvania's selection of a method to conduct an ongoing program

evaluation, to quantify the actual emissions benefits of the program,

as required under 40 CFR 51.353(c). Finally, Mr. Jackson criticizes the

choice of a decentralized I/M program, in light of other available

control measures and based upon the contribution of highway mobile

sources to total future ozone precursor emission inventories.

Response: Many of the comments submitted by Mr. Jackson were not

the subject of EPA's September 16, 1998 proposed approval of

Pennsylvania's SIP supplement to satisfy the program effectiveness

requirements of the NHSDA. Many of his comments deal with issues

associated with approval of Pennsylvania's enhanced I/M SIP, which was

granted conditional interim approval on January 28, 1997 (see 62 FR

4004) and was not subject to further comment in this rulemaking. That

previous conditional interim approval action was not subject to further

comment in this rulemaking.

The NHSDA does not require states to demonstrate the absolute

performance of their program, but instead requires a state to

demonstrate that its decentralized program would achieve all or some of

the benefits achieved by a model, centralized program, which

Pennsylvania has done. The cost and the cost-effectiveness of

Pennsylvania's program are not the subject of this rulemaking action.

As previously noted, Pennsylvania has selected a methodology to conduct

the required ongoing program evaluation to quantify the program's

benefits. Pennsylvania submitted its choice of evaluation methodology

to EPA on November 25, 1998. EPA will take separate action, in the near

future, upon that submittal.

Comment: The commenter contends that Pennsylvania's demonstration

supports effectiveness of program implementation, not program

effectiveness. He goes on to state that program effectiveness is a

measure of how well it cleans the air, the most important of which is

how ASM contributes to Philadelphia's attainment of the 1-hour ozone

National Ambient Air Quality Standard (NAAQS) by 2005--and at what

cost.

Response: The Commonwealth's ``NHSDA Description of Program

Effectiveness'' focuses upon Pennsylvania's implementation of those

measures contained in its 1996 ``Good Faith Estimate'' which was

submitted to and granted interim approval by EPA on January 28, 1997

(see 62 FR 4004) under the authority of the NHSDA. The Commonwealth's

summaries of program data and program oversight data were submitted to

show the results of the operation of the program during that interim

approval period. In terms of the programs's effectiveness in continuing

to achieve the expected emission reductions, that analysis must be

analyzed in the biennial program evaluations required to be performed

by 40 CFR 51.353. However, it is important to remember that the

enhanced I/M program is only one of many control measures implemented

to reduce ozone precursors, and it is not possible to monitor directly

the benefits of any single emissions control strategy such as the I/M

program in reducing ambient ozone levels.

Comment: The commenter cites Pennsylvania's ``Program Effectiveness

Description'' (p. 1, para. 2) which states that its program achieves

reductions equal to EPA's model program. He comments that Pennsylvania

has not proved this assertion. The commenter further contends that the

big issue is proving Pennsylvania has overcome the decentralized test-

and-repair credit reductions that past (non-PA) decentralized and /or

test-and-repair programs have demonstrated. The commenter also cites

Pennsylvania's ``Program Effectiveness Description'' (p.1, para. 3)

which indicates that captured program data clearly demonstrates that

the program is achieving Pennsylvania's claimed benefits, and asserts

that Pennsylvania's collected data is inadequate to directly compute

achieved emissions reductions.

Response: EPA agrees with the commenter that the purpose of the

NHSDA demonstration is to show that a State's decentralized program is

as effective in achieving the emissions reduction benefits associated

with a centralized or test-only program. However, the NHSDA did not set

forth binding guidelines for how such a demonstration should be

performed. Pennsylvania chose an approach to demonstrate the

credibility of its program's design through implementation of measures

in their ``Good Faith Estimate'' and through submission of data

gathered from the first year of operation of the program. EPA believes

it satisfies the statutory requirements for such demonstrations, as

required by section 348(c)(3) of the NHSDA.

Comment: The commenter contends that ASM testing does little toward

achieving the ozone standard for the Philadelphia area. Pennsylvania's

demonstration indicates a failure rate of 11%, including gas cap and

visual inspection failures. Very few cars fail the expensive ASM test.

Response: The period of evaluation took place during the start-up

period of the program, and the results are based upon the use of phase-

in standards for the ASM test. It is not unexpected for the failure

rates to be low during such a period. EPA expects the ongoing program

evaluation to show increased failure rates upon implementation of

[[Page 30405]]

final tailpipe and evaporative testing standards. Again, the enhanced

I/M program is only one of many control measures implemented to reduce

ozone precursors, and it is not possible to monitor directly the

benefits of the I/M program alone in reducing ambient ozone levels.

III. Final Action

EPA is approving Pennsylvania's August 21, 1998 SIP supplement as a

revision to the Pennsylvania SIP. By doing so, EPA is approving the

demonstration of the effectiveness of its decentralized program testing

format submitted by Pennsylvania, entitled ``National Highway Systems

Designation Act Good Faith Estimate Description of Program

Effectiveness''. EPA's approval of this mandated demonstration, is

being done pursuant to section 348 of the NHSDA and section 110(k) of

the Clean Air Act. This approval removes the interim status of EPA's

conditional interim approval of the Pennsylvania enhanced I/M SIP

promulgated on January 28, 1997 (see 62 FR 4004). EPA's approval also

serves to approve contractual materials and state documents that were

submitted by Pennsylvania as part of its August 21, 1998 SIP

supplement, for the purpose of remedying seven de minimus deficiencies

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

of Pennsylvania's I/M program SIP. For a detailed description of these

submitted materials, see EPA's September 16, 1998 direct final rule (63

FR 49436). EPA received no adverse comments related to approval of

these materials to remedy the related de minimus SIP deficiencies.

IV. Administrative Requirements

A. Executive Orders 12866

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

regulatory action from review under 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. If EPA complies by consulting, E.O. 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. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

C. Executive Order 13045

E.O. 13045, entitled ``Protection of Children from Environmental

Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies

to any rule that the EPA determines (1) is ``economically

significant,'' as defined under E.O. 12866, and (2) the environmental

health or safety risk addressed by the rule has 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 and reasonably feasible

alternatives considered by the Agency. This final rule is not subject

to E.O. 13045 because it is not an economically significant regulatory

action as defined by E.O. 12866, and it does not address an

environmental health or safety risk that would have a disproportionate

effect on children.

D. Executive Order 13084

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

required by statute, that significantly affects or 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. 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 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 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 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).

F. 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 is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that

[[Page 30406]]

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.

G. 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).

H. Petitions for Judicial Review

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

judicial review of this Pennsylvania I/M approval action must be filed

in the United States Court of Appeals for the appropriate circuit by

August 9, 1999. 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, Nitrogen dioxide, Ozone, Reporting and recordkeeping

requirements.

Dated: May 27, 1999.

W. Michael McCabe,

Regional Administrator, 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 revising the introductory

paragraph to read as follows:

Sec. 52.2026 Conditional approval.

The Commonwealth of Pennsylvania's March 27, 1996 submittal of its

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

program; as amended on June 27, 1996, July 29, 1996, November 1, 1996,

November 13, 1997, February 24, 1998, and August 21, 1998; is

conditionally approved pending satisfaction of paragraph (a)(2) of this

subsection.

* * * * *

(a) * * *

3. Section 52.2026 is further amended by removing and reserving

paragraphs (b) (1), (5), (7), (8), (9), (10), and (14).

[FR Doc. 99-14357 Filed 6-7-99; 8:45 am]

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