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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 133-4087o; FRL-6354-9]

Approval and Promulgation of Air Quality Implementation Plans;

Commonwealth of Pennsylvania; Motor Vehicle Inspection and Maintenance

Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action on the latest revision to

the Pennsylvania State Implementation Plan (SIP) consisting of the plan

the Commonwealth will use to conduct the ongoing evaluation of its

enhanced inspection and maintenance (I/M) program. With the submission

of this program evaluation plan, Pennsylvania has remedied all

conditions that EPA had placed upon approval of the Commonwealth's

enhanced I/M program. Therefore, EPA is today converting its

conditional approval of Pennsylvania's enhanced I/M program SIP

revisions to full approval, in accordance with the requirements of the

Clean Air Act.

DATES: This rule is effective on August 2, 1999 without further notice,

unless EPA receives adverse written comment by July 19, 1999. If EPA

receives such comments, it will publish a timely withdrawal of the

direct final rule in the Federal Register and inform the public that

the rule will not take effect.

ADDRESSES: Written comments should be mailed to David Arnold, Chief,

Ozone and Mobile Sources Branch, Mailcode 3AP21, 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, Philadelphia, Pennsylvania 19103; or at the Air and

Radiation Docket and Information Center, U.S. Environmental Protection

Agency, 401 M Street, SW, Washington, DC 20460. They may also be viewed

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 K. Rehn, (215) 814-2176, or via

e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

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I. Background

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

rulemaking action (62 FR 4004) granting conditional interim approval to

Pennsylvania's enhanced I/M program SIP revision submitted by

Pennsylvania on March 22, 1996, and formally amended on June 27, 1996

and on July 29, 1996. The interim nature of the approval was granted

under authority provided by the National Highway Systems Designation

Act of 1995 (NHSDA). At the end of the specified 18-month interim

approval period, the Commonwealth was required to make a demonstration

of the effectiveness of their I/M program network, per NHSDA

requirements, based upon actual program data. The conditional nature of

the approval was granted under the Clean Air Act and required

Pennsylvania to remedy, within a 12-month period, certain major program

deficiencies. EPA's January 28, 1997 approval also required the

Commonwealth to remedy certain minor deficiencies within the 18-month

interim approval period.

Pennsylvania submitted supplements to its I/M SIP to EPA on

November 13, 1997; February 24, 1998; and August 21, 1998. The purpose

of these supplemental submittals was to bolster the enhanced I/M SIP to

include updated information and to satisfy the conditions imposed by

EPA in its January 28, 1998 conditional interim approval.

On September 2, 1998, EPA published a direct final rule in the

Federal Register (63 FR 46664) approving Pennsylvania's November 13,

1997 and February 24, 1998 SIP revisions. That approval action removed

four major conditions and seven minor conditions identified in EPA's

January 28, 1997 interim conditional approval of Pennsylvania's I/M

SIP.

On September 16, 1998, EPA published a direct final rule in the

Federal Register (63 FR 49436) approving Pennsylvania's August 21, 1998

SIP revision supplement consisting of the Commonwealth's network

effectiveness demonstration (per requirements of section 348 of the

NHSDA). However, EPA received adverse comments upon the direct final

rule, and withdrew it on October 21, 1998 in accordance with federal

rulemaking procedures. EPA has since issued a final rule approving the

August 21, 1998 submittal of the Commonwealth's network effectiveness

demonstration. In the preamble to that final rule EPA addressed the

adverse comments. That final rule also removed the remaining minor

conditions identified in EPA's January 28, 1997 interim conditional

approval of Pennsylvania's I/M SIP. As a result of these two rulemaking

actions, EPA converted its interim conditional approval of the

Commonwealth's I/M program to a conditional approval--leaving only a

single condition remaining to be addressed. That one remaining

condition was the submittal by Pennsylvania of a plan for conducting

the required ongoing evaluation of its enhanced I/M program. On

November 25, 1998, Pennsylvania submitted the required evaluation plan

to fulfill this last condition. The November 25, 1998 submittal, as

amended on March 3, 1999, is the subject of this rulemaking.

II. Summary of the Commonwealth's Submittal

On November 25, 1998, the Commonwealth of Pennsylvania submitted a

supplement to its enhanced I/M SIP consisting of its plan for

conducting the required ongoing program evaluation of its enhanced I/M

program. On March 3, 1999, the Commonwealth bolstered the November 25,

1998 submittal to include documentation that public notice and hearing

had been conducted on its chosen evaluation plan. The submitted plan

reflects the Commonwealth's choice of an EPA-approved method for

conducting an ongoing program evaluation. The purpose of the

Commonwealth's November 25, 1998 and March 3, 1999 SIP submittals is to

address and remedy the final condition set forth in EPA's January 28,

1997 interim conditional approval (62 FR 4004) of Pennsylvania's I/M

program SIP, and codified at 40 CFR 52.2026(a)(2).

III. EPA Review of the SIP Revision

EPA conditioned its January 28, 1997 approval of the Commonwealth's

SIP upon submission, by November 30 1998, of a final plan for

conducting the required enhanced I/M program evaluation, which requires

the use of an EPA approved methodology to be performed on 0.1 percent

of the I/M subject vehicles in the Pittsburgh and Philadelphia program

areas. EPA required the Commonwealth to select a methodology that

complies with Federal I/M rule requirements set forth at 40 CFR

51.353(c)(3). On October 30, 1998, EPA's Office of Mobile Sources

issued a guidance memorandum entitled ``Guidance on Alternative I/M

Program Evaluation Methods''. This document outlined three EPA accepted

alternative I/M program evaluation methodologies available to states to

comply with the requirements of 40 CFR 51.353(c). The approved

alternatives include: (1) the Sierra Research method; (2) the NYTEST

(or VMAS) method; and (3) the RG240 method. The guidance also addressed

the need to establish a baseline from which to determine I/M program

emissions benefits, in order to fully evaluate enhanced I/M program

effectiveness. For areas that had previously existing I/M programs

prior to implementation of an enhanced I/M program, the guidance

established a methodology for determining a benchmark, since a direct

comparison between pre-program and post-program baselines for subsets

of such vehicles would not be possible.

For its evaluation methodology, Pennsylvania chose to use the

Sierra Research method, utilizing a correlation between another state's

IM240 program and its own acceleration simulation mode (ASM) and idle

testing programs, per EPA's October 30, 1998 guidance. These

correlations will then be used to convert Pennsylvania's idle/ASM

measurements to IM240-equivalent measurements for each vehicle. These

will then form the basis for a modeled comparison between the

Commonwealth's program and the benchmark IM240 program. For its

benchmark comparison of estimating a baseline, Pennsylvania intends to

correlate its idle/ASM program data to IM240 data from New Jersey's or

Maryland's program.

IV. Final Action

EPA is hereby approving Pennsylvania's November 25, 1998 and March

3, 1999 SIP submittals.

EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comment, since the Commonwealth's SIP revision complies with

applicable guidance and with the requirements at 40 CFR 51.353(c). The

Commonwealth has fully met the requirements of the relevant condition

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

Pennsylvania I/M program SIP revision.

However, in the ``Proposed Rules'' section of today's Federal

Register, EPA is publishing a separate document that will serve as a

proposal to approve the SIP revision in the event adverse comments are

filed. This rule will be effective on August 2, 1999 without further

notice unless EPA receives adverse comment by July 19, 1999. If EPA

receives adverse comment, EPA will publish a timely withdrawal in the

Federal Register informing the public

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that the rule will not take effect. EPA will address all public

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

will not institute a second comment period on this action. Any parties

interested in commenting must do so at this time.

EPA, through previous rulemaking actions, approved Pennsylvania's

enhanced I/M program SIP revisions submitted prior to November 25,

1998. Those SIP revisions satisfied all but one of the major and minor

conditions set forth by EPA in its January 28, 1997 (62 FR 4004)

approval of Pennsylvania's enhanced I/M program. EPA also taken final

action to approve the Commonwealth's I/M program network effectiveness

demonstration, required under section 348 of the NHSDA. Because the

Commonwealth has now addressed all of the deficiencies identified by

EPA with respect to its enhanced I/M program SIP, EPA is acting today

to incorporate by reference all of Pennsylvania's enhanced I/M SIP

revisions into the Code of Federal Regulations, at 40 CFR

52.2020(c)(139).

Since EPA has previously taken final approval actions on all of

Pennsylvania's enhanced I/M SIP revisions submitted prior to November

25, 1998, EPA is now providing opportunity for comment only upon

today's approval of the Commonwealth's program evaluation plan--

submitted on November 25, 1998 and amended on March 3, 1999.

By taking final, full approval upon Pennsylvania's submitted

enhanced I/M program SIP revisions, the mandatory sanctions and Federal

Implementation Plan obligations under the Clean Air Act have been

satisfied. All sanctions and FIP clocks related to approval of

Pennsylvania's I/M program are terminated upon the effective date of

today's action.

V. Administrative Requirements

A. Executive Order 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

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is consistent with statutory requirements. Section 203 requires EPA to

establish a plan for informing and advising any small governments that

may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated annual costs of

$100 million or more to either State, local, or tribal governments in

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

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

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

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

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 action to fully approve Pennsylvania's enhanced

I/M program SIP must be filed in the United States Court of Appeals for

the appropriate circuit by August 16, 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, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Ozone.

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 52.2020 is amended by adding paragraph (c)(139) to read

as follows:

Sec. 52.2020 Identification of plan.

* * * * *

(c) * * *

(139) Revisions to the Pennsylvania State Implementation Plan

adopting an enhanced motor vehicle inspection and maintenance (I/M)

program, submitted on March 22, 1996, and formal amendments submitted

by the Secretary of the Pennsylvania Department of Environmental

Protection on June 27, 1996; July 29, 1996; November 1, 1996; October

22, 1997; November 13, 1997; February 24, 1998; August 21, 1998;

November 25, 1998; and March 3, 1999.

(i) Incorporation by reference.

(A) Letter of November 13, 1997 from the Secretary of the

Pennsylvania Department of Environmental Protection transmitting

regulations for an enhanced motor vehicle inspection and maintenance

program.

(B) Pennsylvania Department of Transportation Enhanced Motor

Vehicle Inspection and Maintenance (I/M) Program regulations (contained

in Title 67 of the PA Code), effective September 27, 1997.

(1) A definition for ``temporary inspection approval indicator'',

added to section 175.2.

(2) Section 175.11

(3) Paragraph (f)(4) of section 175.29

(4) Paragraphs (a), (b), (c), and (d) of section 175.41. Paragraph

(b)(3) of section 175.41. Subparagraphs (d)(2)(ii) and (d)(2)(iii), and

paragraphs (e)(5) and (f)(4) of section 175.41.

(5) Sections 175.42, 175.43, 175.44, and 175.45.

(6) Sections 177.1, 177.2, 177.3, 177.21, 177.22, 177.23, 177.24,

177.51, 177.52, 177.53, 177.101, 177.102, 177.103, 177.104, 177.105,

177.106.

(7) Sections 177.201, 177.202, 177.203, 177.204, 177.231, 177.233,

177.251, 177.252, 177.253, 177.271, 177.272, 177.273, 177.274, 177.281,

177.282, 177.291, 177.292, 177.301, 177.302, 177.304, and 177.305.

(8) Sections 177.401, 177.402, 177.403, 177.404, 177.405, 177.406,

177.407, 177.408, 177.421, 177.422, 177.423, 177.424, 177.425, 177.426,

177.427, and 177.431.

(9) Sections 177.501, 177.502, 177.503, 177.504, and 177.521.

(10) Sections 177.602, 177.603, 177.605, 177.606, 177.651, 177.652,

177.671, 177.672, 177.673, and 177.691.

(11) Appendix A to Title 67 of the Pennsylvania Code.

(12) Appendix B to Title 67 of the Pennsylvania Code.

(ii) Additional Material.--Remainder of Submittals

The Commonwealth submitted materials in support of its enhanced

motor vehicle inspection and maintenance (I/M) program regulation.

These materials were submitted in formal SIP revisions dated: March 27,

1996; July 29, 1996; November 1, 1996; November 13, 1997; February 24,

1998; August 21, 1998; November 25, 1998; and March 3, 1999, and

include:

(A) Submittal submitted under a letter dated March 22, 1996, from

the Secretary of the Pennsylvania Department of Environmental

Protection.

(B) Materials submitted under a letter dated June 27, 1996, from

the Secretary of the Department of Environmental Protection.

(C) Materials submitted under a letter of July 29, 1996, from the

Secretary of the Department of Environmental Protection.

(D) Materials submitted under a letter of November 1, 1996, from

the Secretary of the Department of Environmental Protection.

(E) Materials submitted under a letter of October 27, 1997, from

the Secretary of the Department of Environmental Protection.

(F) Materials submitted under a letter of February 24, 1998, from

the Secretary of the Department of Environmental Protection.

(G) Documents submitted by a letter dated August 21, 1998, from the

Secretary of the Department of Environmental Protection.

(H) Materials submitted by the Secretary of the Department of

Environmental Protection, in a letter dated November 25, 1998, and

amended by a letter dated March 3, 1999.

3. In Section 52.2026, the introductory sentence is removed and

paragraph (a) and paragraph (b) are removed and reserved.

[FR Doc. 99-15163 Filed 6-16-99; 8:45 am]

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