[Federal Register Volume 59, Number 196 (Wednesday, October 12, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-25206] [[Page Unknown]] [Federal Register: October 12, 1994] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [NH14-1-6672; A-1-FRL-5085-5] Approval and Promulgation of Air Quality Implementation Plans; New Hampshire; Enhanced Inspection and Maintenance in Hillsborough, Merrimack, Rockingham, and Strafford Counties AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: EPA is conditionally approving a State Implementation Plan (SIP) revision submitted by the State of New Hampshire. This revision requires and establishes an enhanced motor vehicle inspection and maintenance program in the counties of Hillsborough, Merrimack, Rockingham, and Strafford. The intended effect of this action is to conditionally approve the New Hampshire enhanced inspection and maintenance program. This action is being taken in accordance with the Clean Air Act. EFFECTIVE DATE: This final rule will become effective on November 14, 1994.. ADDRESSES: Copies of the documents relevant to this action are available for public inspection, by appointment, during normal business hours at the Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, New England Region, One Congress Street, 10th Floor, Boston, MA; Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, 401 M Street, SW., (LE-131), Washington, DC 20460; and Air Resources Division, Department of Environmental Services, 64 North Main Street, Caller Box 2033, Concord, NH 03302-2033. FOR FURTHER INFORMATION CONTACT: Peter X. Hagerty, (617) 565-3224. SUPPLEMENTARY INFORMATION: I. Clean Air Act Requirements The Clean Air Act, as amended in 1990 (CAA or Act), requires certain States to revise and improve existing I/M programs or implement new ones. All ozone nonattainment areas classified as moderate or worse must implement a basic or enhanced I/M program depending upon its nonattainment classification, regardless of previous requirements. In addition, Congress directed the EPA in section 182(a)(2)(B) to publish updated guidance for State I/M programs, taking into consideration findings of the Administrator's audits and investigations of these programs. The States must incorporate EPA's guidance into SIPs for all areas required by the Act to have an I/M program. Metropolitan statistical areas with populations of 100,000 or more that are within the Northeast Ozone Transport Region also are required to meet EPA guidance for enhanced I/M programs. II. Background The EPA has designated three areas as nonattainment for ozone in the State of New Hampshire. The New Hampshire portion of the Boston- Lawrence-Salem Consolidated Metropolitan Statistical Area is classified serious for ozone, the Portsmouth-Dover-Rochester Metropolitan Statistical Area (MSA), also classified serious for ozone, and the Manchester MSA, classified marginal for ozone. The designations for ozone were published in the Federal Register (FR) on November 6, 1991 (56 FR 56694) and November 30, 1992 (57 FR 56762) and have been codified in the Code of Federal Regulations (CFR) at 40 CFR 81.300 through 81.437. Based on these nonattainment designations, an enhanced I/M program is required in Hillsborough, Rockingham, and Strafford Counties. In addition, these MSAs have populations of over 100,000 and are included in the Ozone Transport Region. Although parts of Merrimack County are in the Manchester MSA, the county could be exempted since, in New England, MSAs are defined by town, not by county; more than fifty percent of the MSA population would still be in the I/M program; and the population density is less than 200 persons per square mile. Under EPA's I/M rule 40 CFR 51.350(b)(1) such portions of Merrimack County are not required to implement I/M. However, all of Merrimack County is included to provide an opportunity to generate enforceable emission reductions that may be used to help provide opportunity for economic growth. By this action, EPA is conditionally approving the New Hampshire I/ M SIP revision. EPA has reviewed the State submittals against the statutory requirements under the Act and for consistency with EPA regulations. In letters dated May 19, 1994 and June 28, 1994, New Hampshire indicated its intent to address a number of outstanding issues discussed in this document as well as in the July 18, 1994 notice of proposed rulemaking (NPR), and to submit necessary revisions to EPA by August 18, 1994. New Hampshire submitted such revisions on August 18. They are consistent with the NPR as discussed below and fully meet the requirements of the I/M rule, except for the portions being conditionally approved in this document. Three parts of the program, on-road testing, compliance via diagnostic inspection, and enforcement against inspectors require more time to resolve and provide the basis for today's conditional approval. As requested by New Hampshire, the state will have until July 29, 1995 to submit revisions to address these three areas. If such revisions are submitted by that date, fulfill the conditions set forth in this document, and fully meet the requirements of the I/M rule, the state will have met the specified conditions and the I/M SIP will be fully approved. If not, this conditional approval will automatically convert to a disapproval. A summary of EPA's analysis is provided below. In addition, more detailed support for conditionally approving the State submittal is contained in the technical support document which is available from the New England Regional Office, listed above. On November 5, 1992 (57 FR 52950), EPA published a final regulation establishing the I/M requirements, pursuant to sections 182 and 187 of the Act. The I/M regulation was codified at 40 CFR part 51, subpart S, and requires States to submit, by November 15, 1993, an I/M SIP revision including all necessary legal authority and the items specified in 40 CFR 51.350(a)(1) through 51.373. III. State Submittal On February 28, 1994, April 19, 1994, and April 21, 1994, the State of New Hampshire submitted an I/M SIP for its three nonattainment areas. Public hearings for the submittals were held on January 5 and 6, 1994 for the February 28, 1994 SIP submittal, and on March 8, 1994 for the April 19, 1994 SIP submittal. The April 21, 1994 submittal contained only administrative materials to supplement the April 19 submission. EPA submitted written comments to the state on March 18, 1994. In letters dated May 19, 1994 and June 28, 1994, the state agreed to submit by August 19, 1994, additional information to address the areas discussed below. The submittals provide for the implementation of an enhanced I/M program in four counties in New Hampshire beginning in 1995. New Hampshire will be implementing a biennial, test-only I/M program meeting the requirements of the I/M performance standard and other requirements contained in EPA's I/M rule. Testing will be overseen by the New Hampshire Department of Safety (NHDOS) and the New Hampshire Department of Environmental Services (NHDES), with actual testing done by a contractor. Other aspects of the New Hampshire I/M program include: testing of 1968 and later light duty vehicles and trucks and heavy duty trucks, evaporative emission testing for 1975 and later model year vehicles, a test fee to ensure the State has adequate resources to implement the program, enforcement by registration suspension, a repair effectiveness program, contractual requirements for testing convenience, quality assurance, data collection, minimum expenditure, time extension and hardship waivers, reporting, test equipment and test procedure specifications, public information and consumer protection, inspector training and certification, and penalties against inspector incompetence. In addition, the enhanced I/M program will include: IM240 testing for 1981 and newer vehicles, an on- road testing program, and emission recall enforcement. On July 18, 1994, EPA published a notice of proposed rulemaking (NPR) for the State of New Hampshire (59 FR 36408). The NPR proposed conditional approval of the New Hampshire enhanced inspection and maintenance program. In response to the NPR an additional submittal was made by New Hampshire on August 18, 1994. The NPR identified eight areas which needed to be addressed by New Hampshire. The August 18, 1994 submission by New Hampshire adequately addressed these areas. Each one is discussed below and the state's response summarized. 1. Enhanced I/M Performance Standard--Some of the assumptions used by New Hampshire in the MOBILE5a modeling demonstration needed to be revised. The assumptions for gasoline Reid Vapor Pressure (RVP) and vehicle refueling emissions used in the model program were not the same as those used in the New Hampshire proposed program. The state was also asked to review the assumptions for compliance and waiver rates and revise them if appropriate. The compliance and waiver rates are discussed elsewhere in this document. The state revised the assumptions appropriately in the August 18, 1994 submittal, which included a new MOBILE5a modeling demonstration showing that the performance standard will be met with the proposed New Hampshire program. 2. Network Type and Program Evaluation--The state did not have provisions to bar contractor employees from referring motorists to particular repair facilities. The state has provided contract language drafted by the New Hampshire Office of the Attorney General, the substance of which will be included in the final contract, to bar contractor employees from referring motorists to particular repair facilities and to provide for appropriate penalties. 3. Vehicle Coverage--The state did not provide adequate information on vehicles subject to the program. In its August 18 submittal, New Hampshire included a table showing the number of subject vehicles by model year and provided information on exempt vehicles. 4. Quality Control--The state did not address the required quality control manual in sufficient detail. The state indicated in previous submittals that the quality control manual will be developed by the contractor. The manual will follow specifications for quality control per EPA's Technical Guidance, and New Hampshire regulations. In the August 18 submittal, New Hampshire included a table of contents for the manual. Based on these documents, the resulting quality control manual will meet EPA requirements. 5. Waiver Rate--The state offered to provide additional guidance on procedures for waiver review, and to reconsider the 1% waiver rate in the original submittal. The state explained in the August 18 submittal that the present waiver rate is less than one half of one percent, and that in order to qualify for a waiver, verification of repairs must be done by a highly trained state referee, and repairs must be performed by a certified mechanic who will have attended up to 120 hours of training. Although New Hampshire does not expect the waiver rate to increase, they increased the rate in the SIP to 2%. 6. Motorist Compliance Enforcement--The state needed to submit information justifying a 99% compliance rate, describing the computer matching system, handling of exempt vehicles, fleet vehicles, and tracking of out of state exemptions and time extensions. In the August 18 submittal, the state described a 12 point enforcement program which will assure a 99% compliance rate. The state also described the software and hardware upgrades which will be made to the computer matching system. As part of the Enforcement Compliance Procedures also submitted on August 18, change of status actions, which could make a previously subject vehicle exempt, must be verified by a Highway Enforcement Officer. Fleet vehicles must be tested at the contractor facilities and meet the same requirements as other vehicles. A more detailed fleet plan will be developed as part of the contract. New Hampshire explained that out of state exemptions and time extensions would be tracked with the computer system, and vehicle owners would be issued registration suspensions when the time of the extension ran out if the vehicle was not in compliance. 7. Quality Assurance--The state agreed to address certain points in the August 18 submittal. The August 18 submittal stated that audit reports will be entered onto the host computer of the contractor, and a hard copy of the audit report will be kept in the stations file in the I/M office. The report filed with the audit results will contain enough evidence to request an administrative hearing if necessary. Anyone suspected of violating regulations would be targeted for additional auditing. The DOS intends to assign officers that do not have regular contact with a particular facility to conduct covert audits. Auditors will receive 128 hours of training at a vocational technical college covering rules of the program, emission failures and emission repairs. Auditors will also be involved in acceptance testing of the program and will receive quality assurance, quality control, and equipment training from the contractor. 8. Improving Repair Effectiveness--The state agreed to submit a plan to transmit information to the repair industry. The August 18 submittal stated that New Hampshire will require the contractor to issue a quarterly newsletter to repair facilities containing national information and tips, local program changes, training courses, common problems, diagnostic tips, and other assistance issues. Conditional Approval The August 18, 1994 submittal reaffirmed New Hampshire's commitment to submit by July 29, 1995 revisions addressing compliance via diagnostic inspection, the inspector penalty schedule, and standards for remote sensing technology. All three require regulation revisions. 1. Compliance via diagnostic inspections were allowed for all model years in the original submission, but in a letter dated May 19, 1994, the state indicated that it will establish procedures and a policy which will allow compliance by this mechanism only on 1981 and newer vehicles subject to IM240 tests at final cutpoints or lower. 2. The New Hampshire Enhanced I/M Rule, Section 16, does not require imposition of substantial penalties as defined by EPA's I/M rule (six month suspension) or equivalent retainage on the first offense by inspectors for violations that directly affect emission reduction benefits. In its letter to EPA dated June 28, 1994 New Hampshire stated that Section 16 will be revised to be consistent with the penalties required by the EPA rule. 3. The state has not established standards for the on-road testing program. In a letter dated May 19, 1994, the state commits to develop and submit standards to EPA. The state has committed, in it's May 19 and June 28, 1994 letters to submitting revisions addressing the three issues discussed above by July 29, 1995. Section 110(k)(4) of the CAA provides that, if a state fails to comply with its commitment, such conditional approval will convert to a disapproval. Other specific requirements of EPA's I/M rule and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR. Response to Comments On July 18, 1994 (59 FR 36408), EPA published a notice of proposed rulemaking (NPR) for the State of New Hampshire. The NPR proposed conditional approval, or in the alternative, disapproval of the New Hampshire I/M SIP submitted by the State. No public comments were received on the NPR. Final Action EPA is conditionally approving the New Hampshire Enhanced Vehicle Inspection and Maintenance Program as a revision to the New Hampshire SIP. Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any SIP. Each request for revision to a SIP shall be considered in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements. As noted elsewhere in this document, the EPA received no comment on the proposed action. Accordingly, the Regional Administrator has reclassified this action from Table 1 to Table 3 under the processing procedures published in the FR on January 19, 1989 (54 FR 2214), and revisions to these procedures issued on October 4, 1993, in an EPA memorandum entitled ``Changes to State Implementation Plan (SIP) Tables.'' Regulatory Process This action has been classified as a Table 3 action by the Regional Administrator under the procedures published in the FR on January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993 memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation. The Office of Management and Budget has exempted this action from Executive Order 12866 review. Under 5 U.S.C. 605(b), the Administrator certifies that SIP approvals under sections 107, 110 and 172 of the Clean Air Act will not have a significant economic impact on a substantial number of small entities. SIP approvals (or redesignations) do not create any new requirements but simply approve requirements that are already state law. SIP approvals (or redesignations), therefore, do not add any additional requirements for small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of a flexibility analysis for a SIP approval would constitute Federal inquiry into the economic reasonableness of the State actions. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. EPA., 427 U.S. 246, 96 S. Ct. 2518 (1976); 42 U.S.C. 7410(a)(2). If the conditional approval is converted to a disapproval under section 110(k), based on the state's failure to meet the commitment, it will not affect any existing state requirements applicable to small entities. Federal disapproval of the state submittal does not affect its state-enforceability. Moreover, EPA's disapproval of the submittal does not impose a new Federal requirement. Therefore, EPA certifies that in the event EPA disapproves the state submittal, this disapproval action would not have a significant impact on a substantial number of small entities because it would not remove existing state requirements nor does it substitute a new Federal requirement. Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 12, 1994. 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).) Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the Agency must determine whether the regulatory action is ``significant'' and therefore subject to OMB review and the requirements of the Executive Order. The Order defines ``significant regulatory action'' as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.It has been determined that this rule is not a ``significant regulatory action'' under the terms of Executive Order 12866 and is therefore not subject to OMB review. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements. Note: Incorporation by reference of the State Implementation Plan for the State of New Hampshire was approved by the Director of the Federal Register on July 1, 1982. Dated: September 15, 1994. John P. DeVillars, Regional Administrator. Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 52--[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401-7671q. Subpart EE--New Hampshire 2. Section 52.1519 is amended by adding paragraph (a)(2) to read as follows: Sec. 52.1519 Identification of plan--Conditional approval. * * * * * (a) * * * (2) Revisions to the State Implementation Plan submitted by the New Hampshire Air Resources Division on February 28, 1994, April 19, 1994, April 21, 1994, August 18, 1994, and letters dated May 19, 1994 and June 28, 1994, submitted by the New Hampshire Air Resources Division. (i) Incorporation by reference. (A) Letters from the New Hampshire Air Resources Division dated February 28, 1994, April 19, 1994, April 21, 1994, and August 18, 1994. (B) Chapter 353 of the laws of 1993, An Act establishing an enhanced emissions inspection and maintenance program and requiring a diesel emissions study, effective July 3, 1993. (C) Enhanced Emissions Inspection and Maintenance Rules, New Hampshire Department of Safety, adopted February 17, 1994, effective January 1, 1995. (ii) Additional materials. (A) Nonregulatory portions of the letter with attachments from the New Hampshire Air Resources Division dated February 28, 1994 (B) Nonregulatory portions of the letter with attachments from the New Hampshire Air Resources Division dated April 19, 1994. (C) Letter with attachments from the New Hampshire Air Resources Division dated April 21, 1994. (D) Letter from the New Hampshire Air Resources Division dated May 19, 1994. (E) Letter with attachment from the New Hampshire Air Resources Division dated June 28, 1994. (F) Letter with attachments from the New Hampshire Air Resources Division dated August 18, 1994. [FR Doc. 94-25206 Filed 10-11-94; 8:45 am] BILLING CODE 6560-50-F