Approval and Promulgation of Air Quality Implementation Plans; Massachusetts; Enhanced Motor Vehicle Inspection and Maintenance Program and Rate of Progress Emission Reduction Plans

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA72-7206C; A-1-FRL-6481-1]

Approval and Promulgation of Air Quality Implementation Plans;

Massachusetts; Enhanced Motor Vehicle Inspection and Maintenance

Program and Rate of Progress Emission Reduction Plans

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplementary proposed rule.

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SUMMARY: The EPA is providing additional information and reopening the

comment period for two notices of proposed rulemaking to approve State

Implementation Plan (SIP) revisions submitted by the Commonwealth of

Massachusetts. These documents were published in the Federal Register

on September 27, 1999. The first is a rulemaking action proposing

approval of the Massachusetts motor vehicle inspection and maintenance

(I/M) program (64 FR 51937), and the second is a rulemaking action

proposing approval of the Massachusetts rate-of-progress plans for

reducing the emissions of ozone precursors in the Springfield ozone

nonattainment area (64 FR 51943). This document reopens the comment

period on both of these rules and provides additional information on

the I/M test to be used in Massachusetts and the timing of 15% and 9%

rate-of-progress plan reductions. This action is being taken under the

Clean Air Act.

DATES: Written comments must be received on or before December 30,

1999. Public comments on this document are requested and will be

considered before taking final action on this SIP revision.

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

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

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

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

support document are available for public inspection during normal

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

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

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

Department of Environmental Protection, One Winter Street, 8th Floor,

Boston, MA 02108.

FOR FURTHER INFORMATION CONTACT: Peter Hagerty, (617) 918-1049.

SUPPLEMENTARY INFORMATION: On March 27, 1997, the Commonwealth of

Massachusetts submitted an inspection and maintenance plan under the

provisions on the National Highway Systems Designation Act. On July 14,

1997, EPA published in the Federal Register (62 FR 37506) an Interim

Final Rule conditionally approving the Commonwealth's I/M SIP. The

notice conditioned approval on start-up of the program by November 15,

1997, which was based on a commitment made by the Commonwealth as part

of the SIP submittal. That Federal Register notice also listed other

elements of the I/M program for which the Commonwealth was required to

submit additional information. By means of a November 14, 1997, letter,

EPA notified Massachusetts that EPA was converting the conditional

approval of the enhanced I/M SIP revision to a disapproval on November

15, 1997 due to the fact that the program was not starting on November

15, 1997. The letter triggered the 18-month time clock for the

mandatory application of sanctions under section 179(a) of the CAA.

Therefore, the Act's offset sanction applied beginning May 15, 1999

because Massachusetts still had no enhanced I/M program started or

approved as part of its SIP.

I. Enhanced I/M SIP

In order to remedy the failure to start its enhanced I/M program in

November 1997, Massachusetts submitted a revision to its SIP on May 14,

1999 for an enhanced I/M program to begin on October 1, 1999. The

Commonwealth in fact commenced operation of the program on October 1,

1999. Although the Commonwealth commenced operation of the I/M program

on October 1, 1999, there were routine start-up difficulties which

required that DEP temper full enforcement of the program for two and

one half months. During October, November and early December 1999, the

Commonwealth is allowing drivers to obtain temporary stickers approving

cars to operate for a year if a station in the program did not have

fully operational test equipment ready when a driver came in for a

test. In a November 15, 1999 letter to EPA, the Commonwealth has

indicated that such temporary stickers will not be available starting

December 15, 1999, and any car that must get tested will be required to

find a station with operable testing equipment. This step ensures that

the I/M program will meet EPA's definition of start-up and that the

Commonwealth is fully enforcing an approvable I/M program as of

December 15, 1999.

In the September 27, 1999 proposed approval of the I/M program (64

FR 51937), there were other elements of the I/M SIP which needed to be

addressed prior to final action by EPA. These elements will be

addressed by the contractor the Commonwealth has retained to implement

the program and are listed as work elements of the contractor's scope

of services. Since the focus of the contractor and the Commonwealth has

been program start-up, these elements have not been addressed by the

contractor to date. In response to EPA's September 27, 1999 proposed

approval which describes the program elements Massachusetts must

supplement, the Commonwealth submitted in a letter dated November 3,

1999 a schedule for submitting these elements from January to March

2000. As stated before, a November 15, 1999 letter informed EPA that

the Commonwealth has taken steps that ensure the I/M program will be

fully enforced starting December 15, 1999. Additional information

submitted in support of the Commonwealth's I/M program is included in

the contract with Keating Technologies signed January 28, 1999,

Department of Environmental Protection (DEP) Regulations, chapter 310

CMR 60.02, and Registry of Motor Vehicles Regulations, chapter 540 CMR

4.00-4.09, and administrative items, including a description of the

program being implemented and DEP's response to comments document dated

May 14, 1999.

Starting on October 1, 1999, the Commonwealth began implementing a

31 second transient test utilizing the BAR 31 trace and NYTEST

equipment. In the September 27, 1999 proposed

[[Page 66830]]

rulemaking, EPA inaccurately stated that the Commonwealth will use an

IM240 test with NYTEST equipment and inaccurately implied that the test

the Commonwealth was conducting should be allowed IM240 emission

reduction credit. There is no data available at this time to assign the

exact emission reduction credit for the combination of test type and

equipment that the Commonwealth is implementing. Nevertheless, even if

one makes extremely conservative assumptions about the efficacy of the

Massachusetts test, EPA's mobile modeling shows that the I/M program

demonstrates compliance with EPA's performance standard for a low

enhanced program. EPA's analysis of these conservative assumptions is

available in a technical support document in the docket for this

action.

II. Massachusetts 15% and 9% Plans for the Springfield

Nonattainment Area

On April 1, 1999, June 25, 1999, and September 9, 1999, the

Commonwealth of Massachusetts submitted revisions to its 15% and 9%

rate-of-progress plans for the Springfield serious ozone nonattainment

area. These revisions contain a new start-up date for the

Commonwealth's automobile I/M program (i.e., October 1, 1999), and

revised emission reduction estimates for this program. In the September

27, 1999 Federal Register, EPA proposed approval of the rate-of-

progress (ROP) emission reduction plans as revisions to the

Commonwealth's SIP (64 FR 51943). As stated in the September 27, 1999

proposed rulemaking, the Commonwealth's ROP plans contain a

demonstration that the amount of emission reductions required in its

15% and 9% plans pursuant to sections 182 (b)(1) and (c)(2) of the

Federal Clean Air Act can be achieved despite lessening the emission

reductions attributable to the I/M program because of its delayed

start-up date. The Commonwealth achieved the required reductions in

ozone precursors by November 15, 1999, primarily by changing the way

that emission increases due to growth were determined, based on more

accurate date of actual growth rates rather than earlier inflated

projections. This demonstration was the basis of EPA's September 27,

1999 proposed approval.

As discussed above, however, emission tests under the enhanced I/M

program were phased in over a two and one half month period in October,

November and December, 1999. Also, EPA is using more conservative

assumptions of the amount of credit derived from the combination of I/M

test type and equipment that the Commonwealth is implementing.

Therefore, it is no longer certain that the Commonwealth will achieve

the emission reductions required of 15% and 9% plans by the November

15, 1999 evaluation date originally assumed. What is more certain is

that the required reductions will be achieved sometime in early 2000 as

more and more of the vehicles registered in Massachusetts are subject

to more stringent emission testing under the Commonwealth's enhanced I/

M program which started on October 1, 1999. Based on the volume of

vehicles subject to emission testing each month, EPA believes the

estimated reductions from I/M needed for the

15% and 9% plans will definitely be achieved and surpassed by the end

of April 2000, prior to the next ozone season. EPA believes that these

reductions are being achieved as expeditiously as practicable and that

no other reasonable emissions control strategy would allow the

Commonwealth or EPA to achieve these reductions sooner. In the future,

Massachusetts will conduct necessary comparison testing to determine

the appropriate emission reduction for SIP credit using the combination

of the BAR 31 transient trace with NYTEST equipment. This will be

important for purposes of approving the ozone attainment demonstration

for the one-hour ozone standard submitted by the Commonwealth on July

27, 1998. In that submittal, the Commonwealth is relying on more

substantial reductions from the enhanced I/M program it is implementing

to show attainment with the one-hour ozone standard. When EPA acts on

the attainment demonstration, we will evaluate whether Massachusetts

has adequately demonstrated that the emission reduction credit it is

claiming for its

I/M program in that attainment demonstration is warranted for the

combination of test type and equipment that the Commonwealth is

implementing.

For a more detailed discussion of EPA's evaluation of when the

emission reductions required of 15% and 9% plans will be achieved, the

reader should refer to the Technical Support Document (TSD) entitled,

``Revised Technical Support Document for the Massachusetts 15% and 9%

plans'' dated November 10, 1999. Copies of this TSD are available at

the previously mentioned addresses.

III. EPA's Current Rulemaking Actions

On September 27, 1999, EPA proposed approval of the Massachusetts

I/M SIP revision to meet the requirements of the federal I/M rule. In

addition, on the same day EPA proposed approval of the Massachusetts

rate-of-progress emission reduction plans which includes the 15% plan.

These actions are tied together because in order for Massachusetts to

meet the low enhanced performance standard for I/M, the 15% plan must

be approvable. Elsewhere in today's Federal Register, EPA is publishing

an Interim Final Determination that Massachusetts has taken the actions

necessary to fully enforce an approvable I/M SIP as of December 15,

1999. This action will stay the imposition of sanctions starting

December 15, 1999, until the SIP is either approved or partially

disapproved. In the proposed rule for the Massachusetts I/M program,

EPA proposed in the alternative to issue a limited approval/limited

disapproval of the program if Massachusetts fails to start the program

in a timely manner or fails to submit any of the program elements that

the Contractor will provide under its scope of work. The limited

disapproval would effectively withdraw the proposed approval.

Withdrawal of the proposed approval would result in growth sanctions

and highway sanctions going into effect immediately.

IV. Proposed Action

EPA is reproposing approval of both the Massachusetts inspection

and maintenance program statewide and the rate of progress plans for

the Springfield nonattainment area which were originally proposed for

approval on September 27, 1999 (64 FR 51937, 64 FR 51943). EPA is

soliciting public comments on the issues discussed in this proposal or

on other relevant matters. These comments will be considered before EPA

takes final action. Interested parties may participate in the Federal

rulemaking procedure by submitting written comments to the EPA Regional

office listed in the ADDRESSES section of this action.

The Agency has reviewed this request for revision of the Federally-

approved State implementation plan for conformance with the provisions

of the 1990 amendments enacted on November 15, 1990.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any State implementation plan. Each request for revision to

the State implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

[[Page 66831]]

relation to relevant statutory and regulatory requirements.

V. Administrative Requirements

A. Executive Order 12866

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

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

``Regulatory Planning and Review.''

B. Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces

Executive Orders 12612 (Federalism) and 12875 (Enhancing the

Intergovernmental Partnership). Executive Order 13132 requires EPA to

develop an accountable process to ensure ``meaningful and timely input

by State and local officials in the development of regulatory policies

that have federalism implications.'' ``Policies that have federalism

implications'' is defined in the Executive Order to include regulations

that have ``substantial direct effects on the States, on the

relationship between the national government and the States, or on the

distribution of power and responsibilities among the various levels of

government.'' Under Executive Order 13132, EPA may not issue a

regulation that has federalism implications, that imposes substantial

direct compliance costs, and that is not required by statute, unless

the Federal government provides the funds necessary to pay the direct

compliance costs incurred by State and local governments, or EPA

consults with State and local officials early in the process of

developing the proposed regulation. EPA also may not issue a regulation

that has federalism implications and that preempts State law unless the

Agency consults with State and local officials early in the process of

developing the proposed regulation.

This final rule will not have substantial direct effects on the

States, on the relationship between the national government and the

States, or on the distribution of power and responsibilities among the

various levels of government, as specified in Executive Order 13132.

Thus, the requirements of section 6 of the Executive Order do not apply

to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

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

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

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

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

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

the environmental health or safety effects of the planned rule on

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

potentially effective and reasonably feasible alternatives considered

by the Agency.

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

decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

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

required by statute, that significantly 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, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

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

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

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

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

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. This action does not involve

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

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

E. Regulatory Flexibility

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions.

This proposed rule will not have a significant impact on a

substantial number of small entities because SIP approvals under

section 110 and subchapter I, part D of the Clean Air Act do not create

any new requirements but simply approve requirements that the State is

already imposing. Therefore, because the Federal SIP approval does not

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under

the Clean Air Act, preparation of flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976);

42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under Sections 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

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

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

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

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action proposed does not

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

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

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

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

requirements.

Accordingly, no additional costs to State, local, or tribal

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

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Particulate

[[Page 66832]]

matter, Reporting and recordkeeping requirements, Sulfur oxides.

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

Dated: November 15, 1999.

John P. DeVillars,

Regional Administrator, Region I.

[FR Doc. 99-30781 Filed 11-29-99; 8:45 am]

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