Air quality implementation plans; approval and promulgation; various States: Delaware,

[Federal Register: July 7, 1999 (Volume 64, Number 129)]

[Proposed Rules]

[Page 36635-36639]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr07jy99-37]

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.

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.Jill@epamail.epa.gov.

SUPPLEMENTARY INFORMATION: The information in this section is organized as follows:

1. What is today's action?

2. Why is EPA taking this action?

3. Why did Delaware make these changes?

   [[Page 36636]]

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

5. How did EPA review Delaware's submittal?

6. How did Delaware satisfy the deficiencies identified in the conditional approval?

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

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

   1. Where can I get additional background information on this action?

10. How this document complies with the Federal Administrative Requirements for Proposed Rulemaking.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

   Corrective action Location in SIP Deficiency

   taken by Delaware

   submittal

   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.

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   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.

   *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.

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7. 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.

8. 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.

   1. 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).

10. How This Document Complies With the Federal Administrative Requirements for Proposed Rulemaking

1. 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.''

2. 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.

3. 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.

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4. 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.

5. 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).

6. 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. 99-17210Filed7-6-99; 8:45 am]

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