Federal Register / Vol. 62, No. 206 / Friday, October 24, 1997 / Rules and Regulations 55341

covers point, area, non-road mobile, onroad mobile, and biogenic sources.

(c) Taken together, the Connecticut

portion of the New York-New JerseyConnecticut severe nonattainment area

and the Hartford serious nonattainment

area encompass the entire geographic

area of the State.

[FR Doc. 97–27855 Filed 10–23–97; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[Region II Docket No. NY22–1–163, FRL–

5913–7]

Approval and Promulgation of

Implementation Plans; New York;

Motor Vehicle Inspection and

Maintenance Program

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Interim final rule.

SUMMARY: EPA is granting interim

approval of a State Implementation Plan

(SIP) revision submitted by New York.

This revision establishes and requires

the implementation of an enhanced

inspection and maintenance (I/M)

program in the counties of the Bronx,

Kings, Nassau, New York, Queens,

Richmond, Rockland, Suffolk (except

Fisher’s Island), and Westchester

Counties. The intended effect of this

action is to give interim approval to the

State’s proposed enhanced I/M program

for an interim period to last 18 months.

This action is being taken under section

110 of the Clean Air Act and section 348

of the National Highway System

Designation Act.

EFFECTIVE DATE: This rule will be

effective November 24, 1997.

ADDRESSES: Copies of the State’s

submittal are available at the following

addresses for inspection during normal

business hours at the following

locations: Environmental Protection

Agency, Region II Office, Air Programs

Branch, 290 Broadway, 25th Floor, New

York, New York 10007–1866 and New

York State Department of

Environmental Conservation, 50 Wolf

Road, Albany, New York 12233.

FOR FURTHER INFORMATION CONTACT:

Rudolph K. Kapichak, Mobile Source

Team Leader, Air Programs Branch,

Environmental Protection Agency, 290

Broadway, 25th Floor, New York, New

York 10007–1866, (212) 637–4249.

SUPPLEMENTARY INFORMATION:

I. Background

On November 27, 1996, (61 FR 60242)

EPA proposed conditional interim

approval of New York’s enhanced I/M

program. New York submitted revisions

to the existing program on March 27,

1996 to satisfy applicable requirements

of the Clean Air Act (CAA) and the

National Highway System Designation

Act of 1995 (NHSDA).

The NHSDA directs EPA to grant

interim approval for a period of 18

months to approvable I/M submittals.

The NHSDA also directs EPA and the

states to review the interim program

results at the end of the 18-month

period and to make a determination as

to the effectiveness of the interim

program. Following this demonstration,

EPA will adjust any credit claims made

by the state in its good faith estimate to

reflect the emissions reductions actually

measured by the state during the

program evaluation period. The NHSDA

is clear that the interim approval shall

last for only 18 months and that the

program evaluation is due to EPA at the

end of that period. Therefore, EPA

believes that Congress intended for

these programs to start-up as soon as

possible, which EPA had believed

should have been on or before

November 15, 1997, so that at least six

months of operational program data can

be collected to evaluate the interim

programs. EPA believes that in setting

such a strict timetable for program

evaluations under the NHSDA, Congress

recognized and attempted to mitigate

any further delay with the start-up of

these programs.

Since publication of New York’s

proposed conditional approval, the

State presented new information that

led EPA to believe that ‘‘as soon as

practicable’’ is not November 15, 1997

for New York. As a result, EPA

recognizes New York’s intent to start the

program as soon as possible, but no later

than November 15, 1998. In recognizing

this later start date, EPA considered a

number of issues related to the start of

this program. Specifically:

• Emission Credits

Most I/M programs currently planned

are requiring biennial inspections,

however, New York will require annual

inspections. As a result, New York will

complete one full cycle of inspections,

as will other states with biennial

programs, by November 1999. This will

allow New York to achieve all of the I/

M program related emission reduction

credits claimed in the 15 percent plan

and the 9 percent rate-of-progress (ROP)

plan. New York submitted these plans

on September 4, 1997. EPA will take

action on the State’s 15 percent and 9

percent ROP plans at a later date.

• Revisions to the Test Procedure and

Equipment Specifications

On December 17, 1996, New York

held a kickoff meeting with test

equipment vendors and potential

bidders to discuss the State’s

requirements regarding time of delivery

and adherence to the State’s standard of

performance. As a result, the State asked

that by April 1, 1997 vendors express

their interest in providing such test

equipment prior to the November 15,

1997 program start date required by

EPA. None of the vendors expressed

such interest, and in fact considered the

schedule time-constrained and

unfeasible. This forced the State to

reevaluate its overall program

development plans and ultimately led

New York to abandon its requirement

for vendors to adhere to a standard of

performance for the test equipment.

• Potential Benefits to Other States

The State has developed a new

transient test procedure that provides

mass emission measurement results

(similar to IM240) with less expensive

analyzer equipment generally associated

with Acceleration Simulation Mode

(ASM) testing. Development of this new

test procedure has taken considerable

time and effort on the part of New York.

A mass emissions transient test (METT),

like the one developed by New York,

captures overall vehicle emissions

during a simulated trip while an ASM

test uses one constant speed and load.

As a result, the ‘‘NYTEST’’ procedure

has the potential for significant cost

savings and may provide other states

with another viable transient test

procedure.

• Network Size

New York anticipates that 2,500 to

3,000 test-and-repair stations will need

to be retrofitted to accommodate testing

of the downstate vehicle fleet, which is

approximately five million vehicles.

Given that other states have begun

program implementation and are further

along in this process, New York will

need to compete for similar equipment

from a very limited number of sources.

As a result, the magnitude of this

program will require a longer phase-in

period to ensure that sufficient stations

are properly equipped prior to program

start up.

If New York fails to start its program

according to the schedule described in

this notice, the interim approval granted

under the provisions of the NHSDA,

which allows the State to take full credit
55342 Federal Register / Vol. 62, No. 206 / Friday, October 24, 1997 / Rules and Regulations

for the I/M program in its 15 percent

plan for the interim period, will convert

to a disapproval after a finding letter is

sent to the State by EPA. As a result,

New York would be required to include

additional provisions in its SIP to

provide the necessary emission credit

reductions. Because the start date is not

being imposed pursuant to a

commitment to correct a deficient SIP

under section 110(k)(4), the failure to

start the program by this date will not

convert the SIP approval to a

disapproval automatically. EPA is

imposing the start date under its general

SIP approval authority of section

110(k)(3), which does not require

automatic conversion; therefore, the

approval will be converted to a

disapproval only upon EPA’s

notification of the State by letter.

The program evaluation to be used by

the State during the 18-month interim

period must be acceptable to EPA. The

Environmental Council of States (ECOS)

group has developed a program

evaluation process which includes both

qualitative and quantitative measures

and has been deemed acceptable by

EPA. Due to the September 19, 1997

proposed I/M Rule revisions (62 FR

49184), the long-term program

evaluation requirement has been

proposed to be delayed for one year and

will allow for equivalent test

methodology.

As per the NHSDA requirements, this

interim rulemaking will expire on May

24, 1999. A full approval of New York’s

final I/M SIP revision, which will

include the State’s program evaluation

and final adopted State regulations, is

still necessary under sections 110, 182,

184 and 187 of the CAA. After EPA

reviews the State’s submitted program

evaluation and final regulations, final

rulemaking on New York’s SIP revision

will occur.

Specific requirements of the New

York enhanced I/M SIP and the

rationale for EPA’s proposed action are

explained in the November 27, 1996

notice and will not be restated here.

II. Public Comments/Response to

Comments

This section discusses the content of

the comments submitted to the docket

during the federal comment period for

the notice of proposed rulemaking,

published in the November 27, 1996

Federal Register, and provides EPA’s

responses to those comments.

Comments were received from the State

of New York and Environmental

Advocates. Copies of the original

comment letters, along with EPA’s

summary and response to comments,

are available at EPA’s Region II office at

the address listed in the ADDRESSES

section of this document.

Comment: Implementation Date

New York commented that EPA’s

action establishing November 15, 1997,

as the implementation date is

inconsistent with the provisions of the

NHSDA. New York believes that states

should be given 12 months from the

publication of this document to begin

implementing the new program.

Response to Comment

As stated earlier in this notice, the

NHSDA is clear that the interim

approval shall last for only 18 months

and that the program evaluation is due

to EPA at the end of that period. EPA

believes that Congress intended for

these programs to be implemented as

soon as possible, and had determined

that this should have been on or before

November 15, 1997 so that six months

or more of program data could be

obtained for program evaluation.

However, since publication of New

York’s proposed conditional approval,

the State presented new information

that led EPA to believe that ‘‘as soon as

practicable’’ is not November 15, 1997

for New York. As a result, EPA

recognizes New York’s intent to start the

program as soon as possible, but no later

than November 15, 1998.

Comment: Definition of ‘‘Program

Implementation’’

New York’s comment expresses

concern that EPA has defined program

implementation to mean that the

program is completely implemented in

all areas. New York believes EPA must

adjust this definition to ensure that

sufficient test data is collected for the

program evaluation and allow analyzer

manufacturers sufficient time to

produce and supply the necessary

equipment.

Response to Comment

EPA defines program ‘‘start-up’’ as a

fully operational program that has

begun regular, mandatory inspections

and repairs, using the final test strategy

and covering each of the State’s required

areas. This definition allows for the

collection of sufficient test data for

program implementation as well as any

retooling requirements. Therefore, no

change in this definition is warranted.

Comment: Orange County

Environmental Advocates commented

that New York’s program does not meet

the applicability requirements of the

federal I/M regulation because the State

failed to include southern Orange

County as part of the area to be covered

by the enhanced I/M program.

Response to Comment

It is true that New York has not yet

submitted to EPA an I/M plan that

addresses southern Orange County.

However, after considering a number of

factors unique to the implementation of

an I/M program in southern Orange

County, EPA sees no reason to

disapprove the current submission for

the rest of the New York metropolitan

area. Such action would delay

implementation of the plan submitted

thus far which covers the vast majority

of the vehicles in the New York

metropolitan area. These factors are

listed below:

• County-Wide Implementation

Implementation of an I/M program is

more feasible on a county-wide basis.

Southern Orange County is anomalous

in the New York-Northern New JerseyLong Island Area Air Quality Control

Region (AQCR), since its severe

nonattainment designation applies only

to a portion of a county. Therefore,

implementation of an I/M program in

such an area must account for a number

of impracticalities such as:

identification of subject vehicles by

home or business address, and

enforcement against vehicle cross

registration outside the program area.

• Existing Network

At present, Orange County is not

covered by an I/M program. Southern

Orange County was designated as severe

nonattainment for ozone in 1992. Since

an I/M program will eventually be

required in all of Orange County, EPA

will act on the plan to be submitted by

the State for this county at a later date.

• Population Size

Southern Orange County covers only

about one third of the County and

represents less than one percent of the

total population of New York’s portion

of the New York-Northern New JerseyLong Island AQCR.

When considered as a whole, EPA

believes that these factors and common

sense support its decision to approve

New York’s submittal which covers the

remainder of New York’s portion of the

AQCR. The Agency will take action on

this issue and complete the necessary

applicability analysis when New York

submits its I/M plan for Orange County

and the rest of the upstate region. EPA

believes that the rejection of New York’s

entire plan now on the basis that a

minute portion of the relevant area is

excluded would not advance the goals

of this program. In fact, EPA believes
Federal Register / Vol. 62, No. 206 / Friday, October 24, 1997 / Rules and Regulations 55343

that such inflexibility would be

counterproductive at this juncture.

As previously stated, this unique

circumstance results from the nature of

I/M implementation itself and Orange

County’s dual nonattainment

designation. Other SIP requirements

applicable to southern Orange County as

part of the New York City AQCR are not

susceptible to the same analysis because

the Act does not suggest a similar

sensitivity to population density as is

appropriate in administering the I/M

program applicable to individual

vehicle owners.

III. Supplemental State Submittals

Under the terms of EPA’s November

27, 1996 proposed conditional interim

approval notice, the State was required

to make commitments within 30 days to

correct three major deficiencies with the

I/M program SIP by dates certain. On

December 24, 1996, New York

submitted such a letter to EPA from

David Sterman, Deputy Commissioner

of the New York Department of

Environmental Conservation. The

contents of this letter and subsequent

correspondence are discussed below.

A. Consumer Price Index Adjustment of

the $450 Repair Cost Waiver

States are required annually to adjust

the $450 repair cost waiver by the

Consumer Price Index (CPI). By January

1, 2000, the adjustment is to be made

retroactive to 1989. Deputy

Commissioner Sterman’s December 24,

1996, letter indicated that the State will

adjust the repair cost waiver by the CPI

as required by federal law. Additionally,

the letter indicates that the State will

make the adjustment back to 1989.

Therefore, the State has met this

condition.

B. Enhanced I/M Performance Standard

Modeling

States are required to submit

modeling demonstrating that the

proposed I/M program will achieve the

required emission reductions by the

relevant dates and meet the relevant I/

M performance standard. On September

4 and 16, 1997, New York submitted

modeling results and assumptions

showing that its program meets EPA’s

high enhanced performance standard.

New York assumed use of the NYTEST,

a test method based on RG240 for which

no final emission reduction credits have

been developed. (See the following

discussion about equipment

specifications for further details.) Based

on available data at the time of this

notice, EPA has concluded that there is

sufficient evidence to support New

York’s claim that this test deserves

emission reduction credit about half

way between a 2-mode ASM test and an

IM240 test. EPA is also planning to

further evaluate this test procedure

along with others to determine the

adequate level of credit it deserves, but

expects that the test will meet the level

claimed by New York. The modeling

results submitted by the State on

September 4, 1997, and subsequent

demonstration submitted on September

16, 1997, show that the proposed I/M

program meets the high enhanced

performance standard. As a result, the

State has met this condition.

C. Test Procedures, Standards and

Equipment

States are required to submit written

test procedures, pass/fail standards, and

equipment specifications. These are to

be established and followed for each

model year and vehicle type included in

the I/M program. New York’s I/M

program will use a mass emissions

transient test (METT), known as

NYTEST, which is based on EPA’s

description of Repair Grade 240-second

METT. The State submitted information

to support its assertion that the

proposed program would achieve

reductions estimated to be half way

between a 2-mode ASM test, and EPA’s

IM240 test. As required in the

November 27, 1996 Federal Register

notice, New York submitted I/M

program test procedures, standards, and

equipment specifications on January 31,

1997. Due to revisions made since then,

New York submitted the revised test

procedures, standards, and equipment

specifications on September 16, 1997.

Therefore, this condition has been met.

IV. De minimus Conditions

EPA is taking final interim approval

action upon the New York I/M SIP,

under section 110 of the CAA. As

discussed in detail later in this

document approval is being granted on

an interim basis for an 18-month period

under the authority of the NHSDA.

The State must correct six minor, or

de minimus, deficiencies related to the

CAA requirements for enhanced I/M.

Although satisfaction of these

deficiencies does not affect the interim

approval status of the State’s

rulemaking, these deficiencies must be

corrected in the final I/M SIP revision

to be submitted at the end of the 18-

month interim period:

(1) New York must submit quality

control measures in accordance with the

requirements set forth in 40 CFR part

51.359.

(2) New York must complete the

development of the inspector training

and certification program.

(3) New York must finalize plans for

its data collection system.

(4) New York must complete the

public information program, including

the repair station report card.

(5) New York must commit to perform

on-road testing in accordance with the

requirements set forth in section 51.371

of the federal I/M regulation.

(6) New York must complete the

development of the quality assurance

program.

V. Further Requirements for I/M SIP

Approval

This approval is being granted on an

interim basis for a period of 18 months,

under the authority of section 348 of the

NHSDA. At the end of this period, the

approval of the emission reduction

credits will lapse. At that time, EPA

must take final rulemaking action upon

the State’s SIP under the authority of

section 110 of the CAA. Final approval

of New York’s I/M program emission

reduction credits will be granted based

upon the following criteria:

(1) The State has complied with all

the conditions of its commitment to

EPA;

(2) EPA’s review of the State’s

program evaluation confirms that the

appropriate amount of program credit

was claimed by the State and achieved

with the interim program;

(3) Final program regulations are

submitted to EPA; and

(4) The State’s I/M program meets all

of the requirements of EPA’s I/M rule,

including those de minimus deficiencies

identified in the November 27, 1996

proposal (61 FR 60242) as minor for

purposes of interim approval.

VI. Final Rulemaking Action

EPA is granting interim approval of

New York’s revised enhanced I/M

program based primarily upon its

decentralized program effectiveness

claims. The approval will cover a period

of 18 months, allowing the State to

demonstrate ‘‘actual’’ effectiveness of its

program. It must be noted that actual

effectiveness findings will not affect this

approval, but may affect the emission

reduction credits granted.

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

relation to relevant statutory and

regulatory requirements.
55344 Federal Register / Vol. 62, No. 206 / Friday, October 24, 1997 / Rules and Regulations

VII. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget

(OMB) has exempted this regulatory

action from E.O. 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

impact on a substantial number of small

entities. Small entities include small

businesses, small not-for-profit

enterprises, and government entities

with jurisdiction over populations of

less than 50,000.

Approvals of SIP submittals 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 impose any new

requirements, I certify that it does not

have a significant impact on any small

entities affected. Moreover, due to the

nature of the Federal-State relationship

under the CAA, 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).

If the approval is converted to a

disapproval under section 110(k), based

on the State’s failure to meet the

commitments, 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 this

disapproval action does not have a

significant impact on a substantial

number of small entities because it does

not remove existing requirements nor

does it substitute a new federal

requirement.

C. 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 approval

action promulgated does not include a

federal mandate that may result in

estimated annual costs of $100 million

or more to either State, local, or tribal

governments in the aggregate, or to the

private sector. This federal action

approves pre-existing requirements

under State or local law, and imposes

no new requirements. Accordingly, no

additional costs to State, local, or tribal

governments, or to the private sector,

result from this action.

D. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA

submitted a report containing this rule

and other required information to the

U.S. Senate, the U.S. House of

Representatives and the Comptroller

General of the General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by 5

U.S.C. 804(2).

E. Petitions for Judicial Review

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 23,

1997. Filing a petition for

reconsideration by the Administrator of

this final rule does not affect the finality

of this rule for the purposes of judicial

review nor does it extend the time

within which a petition for judicial

review may be filed, and shall not

postpone the effectiveness of such rule

or action. This action may not be

challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by

reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Reporting and

recordkeeping requirements, Volatile

organic compounds.

Dated: October 6, 1997.

Jeanne M. Fox,

Regional Administrator.

Part 52, 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 HH—New York

2. Section 52.1683 is amended by

adding paragraphs (c), (d), and (e) to

read as follows:

* * * * *

(c) The State of New York’s March 27,

1996 submittal for an enhanced motor

vehicle inspection and maintenance (I/

M) program, as amended on September

16, 1997, and September 17, 1997, is

approved with an interim period to last

18 months. If New York fails to start its

program by November 15, 1998, the

interim approval granted under the

provisions of the NHSDA, which EPA

believes allows the State to take full

credit in its 15 percent plan for all of the

emission reduction credits in its

proposal, will convert to a disapproval

after a finding letter is sent to the State

by EPA.

(d) The State must correct six minor,

or de minimus, deficiencies related to

the CAA requirements for enhanced I/

M. The minor deficiencies are listed in

EPA’s interim final rulemaking on New

York’s motor vehicle inspection and

maintenance program published on

October 24, 1997. Although satisfaction

of these deficiencies does not affect the

interim approval status of the State’s

rulemaking, these deficiencies must be

corrected in the final I/M SIP revision

to be submitted at the end of the 18-

month interim period.

(e) EPA is also approving this SIP

revision under Section 110(k) for its

strengthening effect on the plan.

[FR Doc. 97–28273 Filed 10–23–97; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 261

[SW–FRL–5913–8]

Hazardous Waste Management

System; Identification and Listing of

Hazardous Waste; Final Exclusion

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.