Approval and Promulgation of Air Quality Implementation Plans; Delaware Enhanced Motor Vehicle Inspection and Maintenance (I/M) Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE039-1021; FRL-6372-4]

Approval and Promulgation of Air Quality Implementation Plans;

Delaware Enhanced Motor Vehicle Inspection and Maintenance (I/M)

Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)

revision submitted by the State of Delaware. This action proposes

approval of revisions to the enhanced motor vehicle inspection and

maintenance (I/M) SIP submitted by the Delaware Department of Natural

Resources and Environmental Control (DNREC). Because EPA has determined

that the conditions of its May 19, 1997 conditional approval of

Delaware's enhanced I/M SIP have now been satisfied, this action

proposes to remove those conditions and to grant full approval of the

enhanced I/M SIP.

DATES: Written comments must be received on or before August 6, 1999.

ADDRESSES: Written comments may 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; Delaware Department

of Natural Resources & Environmental Control, 89 Kings Highway, P.O.

Box 1401, Dover, Delaware 19903.

FOR FURTHER INFORMATION CONTACT: Jill Webster, (215) 814-2033, or by e-

mail at Webster.J[email protected].

SUPPLEMENTARY INFORMATION: The information in this section is organized

as follows:

A. What is today's action?

B. Why is EPA taking this action?

C. Why did Delaware make these changes?

[[Page 36636]]

D. What are the new changes to Delaware's I/M program?

E. How did EPA review Delaware's submittal?

F. How did Delaware satisfy the deficiencies identified in the

conditional approval?

G. What are the specifics of the new I/M program changes?

H. What is the process for EPA approval of this action?

I. Where can I get additional background information on this

action?

J. How this document complies with the Federal Administrative

Requirements for Proposed Rulemaking.

A. What is Today's Action?

On May 19, 1997, EPA conditionally approved Delaware's enhanced

Inspection and Maintenance (I/M) program. On June 16, 1998, Delaware

submitted a SIP revision to satisfy the conditions established in the

May 19, 1997 conditional approval. Because EPA has determined that

Delaware has satisfied all of the conditions of its May 19, 1997

conditional approval, EPA is proposing to approve the June 16, 1998 SIP

revision submittal together with additional I/M SIP revisions submitted

by DNREC on May 24, 1999.

B. Why is EPA Taking This Action?

EPA is proposing approval because Delaware has submitted an

enhanced I/M SIP that meets the requirements of the I/M rule as found

in 40 CFR 51.350 through 51.373 (the I/M rule). EPA believes that

Delaware's I/M SIP submittal satisfies the deficiencies imposed in the

May 19, 1997 conditional approval rule. Furthermore, EPA has determined

that recent changes made by Delaware to its enhanced I/M program also

meet the requirements of the I/M Rule.

C. Why did Delaware Make These Changes?

Delaware revised its I/M SIP to improve air quality and to meet

requirements of the 1990 Clean Air Act Amendments (the Act) for an

enhanced I/M program. The Act requires states to make changes to

improve existing I/M programs or to implement new ones for certain

nonattainment areas. Both Kent and New Castle counties, are part of the

Philadelphia-Wilmington-Trenton severe ozone nonattainment area. The

DNREC submitted a revised SIP to EPA on February 17, 1995 that included

enhancements to their I/M program. The intent of the revisions was to

meet the requirements of the Act and the I/M rule. The submittal

consisted of Regulation Numbers 26 and 33 of the Delaware Regulations

Governing the Control of Air Pollution.

EPA identified numerous deficiencies of the February 17, 1995

submittal. On May 19, 1997, EPA granted Delaware a conditional approval

of the program, contingent upon Delaware's commitment to submit a

revised enhanced I/M SIP by June 18, 1998 correcting the deficiencies

identified in EPA's conditional approval. On June 16, 1998, Delaware

submitted Regulation 31-Low Enhanced Inspection and Maintenance

Program, for the purpose of addressing the program deficiencies.

Regulation 31 replaced Regulation 26 for Kent and New Castle counties.

Regulation 33 was rescinded and also replaced by Regulation 31.

D. What are the New Changes to Delaware's I/M Program?

Delaware has also made new changes to its enhanced I/M program.

Delaware has adopted regulations that incorporate Low Emitter Profile

(LEP) modeling, expanded model year exemptions, and a two-speed idle

test. The LEP modeling is commonly referred to as ``clean screening''.

These revisions were submitted to EPA on May 24, 1999.

E. How did EPA Review Delaware's Submittal?

First, EPA reviewed the June 16, 1998 SIP revision submittal to

verify that Delaware's enhanced I/M program satisfied the conditions

imposed in the May 19, 1997 conditional approval. Second, EPA reviewed

the new program changes submitted on May 24, 1999 to verify that

Delaware's enhanced I/M program still conformed to requirements of the

Act and the I/M rule.

F. How did Delaware Satisfy the Deficiencies Identified in the

Conditional Approval?

As previously explained, EPA had identified various deficiencies of

Delaware's I/M program. Most of these deficiencies related to

insufficient administrative requirements and lack of supporting

documentation. On June 16, 1998 and on May 24, 1999, DNREC submitted

revisions to its conditionally approved enhanced I/M program. EPA used

the ``Inspection and Maintenance Program SIP Requirements Checklist''

as a guideline for performing a detailed review of both the June 16,

1998 and May 24, 1999 submittals. The checklist is part of the

technical support document (TSD) for this rulemaking. The details of

the checklist review are not outlined in this notice, but are available

in the TSD. The TSD is available, upon request, from the EPA Regional

Office listed in the ADDRESSES section of this document. This document

will briefly describe the conditions satisfied by Delaware.

Table 1. briefly describes how Delaware satisfied the I/M

requirement. The table also identifies the location in the Delaware

submittal that contains the required information.

Table 1.

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Corrective action Location in SIP

Deficiency taken by Delaware submittal

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Required provisions covering Delaware Regulation Delaware Regulation

all requirements of 31 includes ZIP 31, section 1 and

Applicability, 40 CFR codes for all Appendix 1(d).

51.350, including ZIP codes covered areas and

for all covered areas and letter from

statement by authorized Secretary of the

Delaware official that the Delaware Department

program requirement will of Natural

not sunset. Resources &

Environmental

Control, Christophe

A.G. Tulou, stating

that the program

will stay in place

throughout

attainment and

maintenance period

for ozone.

Did not submit modeling that Submittal included Delaware Regulation

demonstrated meeting the modeling that 31, section 2; Plan

performance standard by demonstrated for Implementation,

failing to include meeting the section 2 and

provisions for an on-road performance Appendix 2(b).

testing program; Enhanced I/ standard with the

M Performance Standard 40 new program

CFR 51.351. changes, and

included an on-road

testing program.

Insufficient network type Delaware Regulation Delaware Regulation

description and a long term 31 includes network 31, section 3 and

program evaluation; Network type description Appendix 3(a)(7);

Type and Program Evaluation and the Plan for Plan for

40 CFR 51.353. Implementation Implementation,

includes program section 3.

evaluation

description.

[[Page 36637]]

Did not submit a resource The Plan for Plan for

Budget Plan and other Implementation Implementation,

requirements of Adequate includes resource section 4, Appendix

Tools and Resources 40 CFR budget plan 4(a), and Appendix

51.354. necessary for 4(b).

program operation.

Insufficient description of Delaware Regulation Delaware Regulation

test frequency other 31 describes the 31, section 4 and

requirements of Test test frequency in Plan for

Frequency and Convenience detail, as well as Implementation,

40 CFR 51.355. how testing and section 5.

short wait times

are insured.

Lack of description of Delaware Regulation Delaware Regulation

vehicles covered by the 31 provides the 31, section 5 and

program and other necessary Appendix 5(f). Plan

requirements of Vehicle description of for Implementation,

Coverage 40 CFR 51.356. vehicle coverage section 6.

and the Plan for

Implementation

provides estimation

of special

exemptions.

Insufficient detail Delaware Regulation Delaware Regulation

regarding test procedures 31 includes 31, section 6,

and evaporative test appropriate test Appendix 6(a),

standards; Test Procedures procedures and Appendix 6(a)(5),

and Standards 40 CFR 51.357. standards*. and Appendix

6(a)(8).

Lack of detail regarding The Plan for Plan for

test equipment, including Implementation Implementation,

specifications and other includes all section 8 and

requirements of Test pertinent equipment Appendix 8(a).

Equipment 40 CFR 51.358. specifications and

other necessary

equipment

information.

Did not submit all necessary The Plan for Plan for

equipment calibration Implementation Implementation,

procedures and quality includes all section 9, Appendix

control measures; Quality necessary quality 9(a)(1), Appendix

Control 40 CFR 51.359. control and 9(c), and Appendix

calibration 9(c).

procedures.

Lack of necessary waiver Delaware Regulation Delaware Regulation

requirement of minimum 31 includes the 31, section 7 and

expenditure of at least necessary waiver Appendix 7(a). Plan

$450, adjusted annually to expenditure for Implementation,

reflect changes in the requirement of section 10.

Consumer Price Index (CPI) minimum $450

and other requirements of adjusted annually

Waivers & Compliance via to reflect changes

Diagnostic Inspection 40 in CPI compared to

CFR 51.360. 1989**.

Insufficient detail Delaware Regulation Delaware Regulation

regarding Delaware's 31 provides 31, section 8 and

registration denial process sufficient detail Appendix 8 (a).

and how it's linked with regarding Plan for

the inspection process; Delaware's Implementation,

Motorist Compliance registration denial section 11,

Enforcement 40 CFR 51.360. system and motorist Appendix 11(b),

compliance. Appendix 11(c)(1).

Lack of detailed description The Plan for Plan for

of Delaware's quality Implementation Implementation,

assurance program including details all of section 9, Appendix

details of auditing Delaware quality 9 (a)(1), Appendix

procedures, inspector assurance 9(b), and Appendix

training, and fraud procedures and all 9(c).

prevention as well as other necessary quality

requirements of Quality assurance

Assurance 40 CFR 51.363. requirements.

Lack of detail regarding Delaware Regulation Delaware Regulation

enforcement against 31 provides 31, section 9 and

stations, contractors, and sufficient detail Appendix 9(a).

inspectors; Enforcement of enforcement and

Against Contractors, disciplinary

Stations, and Inspectors 40 actions to be taken

CFR 51.364. with regard to

stations,

contractors, and

inspectors.

Submittal did not include The Plan for Plan for

data collection procedures Implementation Implementation,

or provisions for data details all data section 15.

collection and other collection

requirements of Data procedures and data

Collection 40 CFR 51.365. collected.

Submittal did not include The Plan for Plan for

data analysis and reporting Implementation Implementation,

procedures required in Data details data section 16.

Analysis and Reporting 40 analysis and

CFR 51.366. reporting

procedures.

Lack of description of The Plan for Plan for

Inspector training and Implementation Implementation,

training course; Inspector contains an section 17 and

Training and Licensing or overview of Appendix 17.

Certification 40 CFR 51.367. Inspector training

and other

requirements of

inspector

certification.

Submittal did not include The Plan for Plan for

measures/provisions that Implementation Implementation,

will be implemented to describes section 18 and

protect the consumer and Delaware's process Appendix 18.

provide for public for consumer

awareness; Public protection and

Information and Consumer public education.

Awareness 40 CFR 51.368.

Submittal did not include a The Plan For Delaware Regulation

description of the steps Implementation 31, section 10.

Delaware will take to provides Delaware's Plan for

ensure effective repairs, procedures for Implementation,

as well as other ensuring repair section 19.

requirements of Improving effectiveness.

Repair Effectiveness 40 CFR

51.369.

Submittal did not include EPA advised Delaware Delaware Regulation

methods for ensuring that to reserve this 31, section 11 and

vehicles subject to section in Plan for

emission related recalls Regulation 31 Implementation,

receive necessary repairs Delaware will section 20.

prior to completing supplement the

emission test/registration; reserved section,

Compliance with Recall subsequent to EPA

Notices 40 CFR 51.368. issuing guidance

with regard to

recalls. EPA

believes that by

reserving

compliance with

recalls in the SIP,

Delaware has

satisfied this

condition for the

purpose of this

rulemaking.

Lack of provisions for Delaware Regulation Delaware Regulation

implementing an on-road 31 and the Plan for 31, section 12 and

testing program and other Implementation Plan for

requirements of On-Road sufficiently Implementation,

Testing 40 CFR 51.371. provides for an on- section 21.

road testing

program.

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*The two-speed idle test that Delaware will implement varies slightly

from the EPA test procedure. The length of preconditioning is

shortened as compared to EPA guidance. EPA has previously approved

this test procedure change in other areas.

**Delaware will implement a waiver of $450 January 1, 2000. Delaware

will not meet the requirement to implement a full waiver amount of

$450, plus CPI adjustment until January 1, 2001.

[[Page 36638]]

G. What are the Specifics of the New I/M Program Changes?

LEP Modeling (Clean Screening)

As previously stated, Delaware has also promulgated new program

changes to alleviate long motorist wait times. Delaware incorporated

provisions that allow clean screening when motorists must wait more

than 60 minutes for an inspection.

What is LEP modeling (clean screening) and how does it work? LEP

modeling is the exemption of some vehicles based upon historical

emissions test performance. The LEP model flags certain makes, model

years, and engine families as likely low emitting vehicles. During busy

hours of operations, the Delaware Division of Motor Vehicles (DMV) may

exempt vehicles that the LEP model predicts to be low emitting. Clean

screening exemptions will only occur when motorists must wait more than

60 minutes for an inspection. And the DMV will only exempt, by LEP

modeling, a predetermined number of vehicles on an annual basis.

Additional information about the methodology of the LEP model is

contained in a dKC del la Torre report titled ``Assessment of

Alternative I/M Test Scenario,'' February 6, 1998. A copy of that

report is in the rulemaking docket of this proposed rulemaking and is

available for public inspection. Additional information regarding

Delaware's process for LEP modeling (clean screening) and pertinent

regulatory requirements, are also found in the TSD.

Delaware plans to implement LEP modeling provisions starting

January 1, 2000.

Model Year Exemption Expansion and 2-Speed Idle Test

Delaware will expand the model year exemptions to the five newest

model years. The implementation date of the exemption expansion is

September 1, 1999. After this date, the newest five model year vehicles

will be exempt from the emissions inspection process.

Delaware will also change the exhaust test that will be performed

on 1981 and newer vehicles. The new test type will be a two-speed idle

test. The two-speed idle test will measure vehicle emissions at idle

speed and at 2500 rpm. Vehicles that are older than 1981 will continue

to be tested with the current idle test. Delaware will implement the

new test procedure on November 1, 1999.

H. What is the Process for EPA Approval of This Action?

EPA's review of this material indicates that Delaware has met their

commitment to address the conditions identified in the February 5, 1997

conditional approval. EPA is proposing to approve the Delaware SIP

revision for the Low Enhanced Inspection and Maintenance Program, which

was submitted on June 16, 1998. EPA is also proposing to approve

additional revisions to the I/M program, submitted on May 24, 1999. EPA

is soliciting public comments on its proposed approval that Delaware's

June 16, 1998 submittal satisfies the conditions imposed in the May 19,

1997 conditional approval and its proposed approval of additional

revisions to the I/M program, submitted on May 24, 1999. These comments

will be considered before taking 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 document. We will address all comments in a subsequent final rule.

There will be no second comment period, so those wishing to comment

must do so before the comment period closes.

I. Where can I Get Additional Background Information on This

Action?

EPA proposed conditional approval of Delaware's Low Enhanced

Inspection and Maintenance Program in a Federal Register action dated

February 5, 1997, (62 FR 5361). We conditionally approved the program

in a Federal Register action, dated May 19, 1997 (62 FR 27195).

J. How This Document Complies With the Federal Administrative

Requirements for Proposed Rulemaking

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. 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. 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 proposed 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.

[[Page 36639]]

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, E.O. 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, E.O. 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 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 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 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 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, proposing

to approve Delaware's I/M SIP, 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 to propose approval of

Delaware's enhanced I/M SIP.

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: June 28, 1999.

Thomas C. Voltaggio,

Acting Regional Administrator, Region III.

[FR Doc. 99-17210 Filed 7-6-99; 8:45 am]

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