### C OMMONWEALTH OF 

### MASSACHUSETTS 

### E XECUTIVE 

### O FFICE OF 

### E NERGY & 

### E NVIRONMENTAL 

### A FFAIRS 

### D EPARTMENT OF 

### E NVIRONMENTAL 

### P ROTECTION ONE WINTER STREET, BOSTON, MA 02108 617

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DEVAL L. PATRICK Governor TIMOTHY P. MURRAY Lieutenant Governor IAN A. BOWLES Secretary LAURIE BURT Commissioner

This information is available in alternate format. Call Donald M. Gomes, ADA Coordinator at 617
- 556 - 1057. TD D# 1 - 866 - 539 - 7622 or 1 - 617 - 574 - 6868. MassDEP on the W orld W ide W eb: http://www.mass.gov/dep

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### BUREAU OF WASTE PREVENTION DIVISION OF CONSUMER AND TRANSPORTATION PROGRAMS

Summary of Comments and Response to Comments on the Proposed Amendments to the Regulation and State Implementation Plan for Ozone



### 310 CMR 60.02: Regulations for the En hanced Motor Vehicle Inspection and Maintenance Program (IM)

Regulatory Authority: Massachusetts General Laws, Chapter 111,

Sections 142A through 142M September 2008Page 2 6/11/2009 2



### SUMMARY OF AND RESPONSE TO COMMENTS ON 310 CMR 60.02: REGULATIONS FOR THE ENHANCED MOTOR VEHICLE INSPECTION AND MAINTENANCE PROGRAM (IM) The Massachusetts Department of Environmental Protection (MassDEP) proposed amendments to 310 CMR 60.02, Regulations for the Enhanced Motor Vehicle Inspection and Maintenance Program (IM) ) , and, i n accordance with the public review process requirements of M.G.L

. Chapter 30A, made the proposed amendments available for public review, published notification of the amendments, and held public hearings on March 13, 2008 in Boston, Massachusetts and Marc h 18, 2008 in Springfield Massachusetts to solicit public comment on the proposed regulation. The public comment period ended March 28, 2008 and relevant comments have been summarized and organized into groupings for response. A list of all commenters on the proposed amendments is included in Attachment A. 

### Technical Analysis/Modeling Comment: Under Section 60.02(3)(c), the Commonwealth intends to exempt vehicles which are older than 15 years from OBD2 testing. In evaluating the effectiveness of the n ew program for the purpose of meeting the Environmental Protection Agency ’s (EPA) performance standard, and for the purpose of demonstrating the effectiveness of the new program relative to the existing SIP

- approved inspection program, this 15 year rolling exemption should be considered in MOBILE modeling. Please include the MOBILE input and output streams which support the tables in the Background Document with show the level of emission reductions achieved b y this program. Response: Included as an att achment to the SIP revision submitted to EPA are MOBILE input and output streams as well as post processing data. The MOBILE analy sis evaluates all program features, including the 15

- ye ar rolling exemption, and the results of the analy sis are included in the Background Document. The results demonstrate that the revised program is at least as effective as the current program with the exception of the first y ear. Supporting documentation such as the model input and output files and the post

- processing anal ys is files are beyond the Background Document’s scope.


### OBD2 Vehicles Comment: In Section 60.02(3)(c)9, the Commonwealth is proposing to broadly exempt vehicles which present “prohibitive emissions inspection problems.” This section should be clarifie d to ensure that OBD2 equipped vehicles are not inappropriatel y exempted from testing under this very broad provision. If vehicles will be tested in a manner different than provided under EPA rules and policies, EPA should have a role in reviewing an y veh icles that are exempted, or treated differently

than EPA guidance prescribes. Response: This section is a continuation of the provision in the Massachusetts I&M Regulations currentl y approved b y EPA that allows the Commonwealth to respond quickl y toPage 3 6/11/2009 3

pre viously

undiscovered or unresolved vehicle performance issues that affect emissions testing. (This is an essential element for I&M programs where problems with vehicles are discovered and must be addressed, and EPA has not issued a recall or provides othe r relief, or the manufacturer has not had an opportunity to full y effect corrections). The Department will continue to consult with EPA regarding vehicles that pose emissions testing problems, take appropriate interim action to preserve motorist convenien ce necessary for continued public acceptance of the I&M program, and adjust corrective actions, where appropriate, in response to EPA recommendations or actions. This flexibility

may be needed because the Commonwealth has committed to begin OBD testing of MY2010 and newer OBD

- equipped heav y - dut y vehicles. These vehicles are not currentl y equipped with OBD sy stems, and it may be necessary

to revise program requirements for these vehicles should implementation issues arise.

Comment: Section 60.02(7)( c)3 allows for alternative tests. Alternative tests should not be allowed for OBD2 equipped vehicles unless EPA and the Department agree that an alternative test is appropriate. Response: The alternative test provision was intended to provide flexibilit y to address implementation issues associated with the start of OBD testing. For example, this allowed the Department to use an alternative test for OBD

- equipped vehicles using the CAN communication protocol, which our test equipment was not originally ab le to test. It was not until the OBD test equipment was upgraded to CAN compatibility that we could test these vehicles. This provision is in the existing regulation, and is not applicable post

- October 1, 2008.

Comment: In Section 60.02(9), the Comm onwealth is proposing that there be an advisory scan of new motor vehicles when vehicles are initially purchased in the Commonwealth to identify if there are an y OBD2 related problems. EPA is interested in reviewing an y criteria used to determine if a pro blem exists. Response: The advisory scan for new motor vehicles will provide the Department with an electronic signature of the vehicle to compare during future OBD tests for fraud detection. The Department will also be able to evaluate whether there are an y fundamental problems with the vehicle that may

cause a problem when the vehicle is first tested. The scan will evaluate three criteria: (1) whether the OBD VIN and the vehicle VIN match; (2) whether the OBD s ys tem communicates with the OBD tes t sy stem; and (3) whether all monitors are reported as unsupported. Earl y identification of an y problems is intended to give the dealer and the motorist up to a year to have them corrected so the vehicle may pass when presented for its first test, instead of the usual 60 day s following a failing test. MassDEP may propose additional criteria if appropriate and will advise EPA if any additional criteria are proposed.Page 4 6/11/2009 4

Comment: In Section 60.02(12)(b)3, a vehicle should fail the I/M OBD2 test explicitly if the malfunction indicator light (MIL) does not illuminate when the vehicle is in the “key on, engine off” (KOEO) position as a means to ensure the bulb itself operates. This is in addition to the criteria listed in Section 60.02(11)(b)3 for failing whe n the MIL light does not illuminate when commanded on b y the OBD2 s ys tem. Response: As indicated in the Technical Support Document, Massachusetts is not proposing to perform a KOEO bulb check for all vehicles as part of the OBD test procedure because:

 T he KOEO bulb check failure rate is low in other states;
 Vehicles with disabled MILs are likel y to be vehicles that fail the electronic scan of the OBD s ys tem;  Vehicles failing the electronic scan of the OBD s ystem because the MIL is commanded on will rec eive a bulb check;
 The bulb check is becoming increasingl y prone to false failures because of changes in vehicles themselves; and
 The high false failure rate found during pilot OBD testing in Massachusetts raises concerns about costs to motorists in term s of time and money

.
Comment: Section 60.02(12)(b)4 is confusing. In particular, please clarify the latter portion of this failure criteria.

Response: Massachusetts is proposing OBD testing of all OBD

- equipped vehicles, yet EPA’s OBD regulati on applies only to L ight Dut y non - diesel vehicles (gross light duty vehicle weight of less than or equal to 8,500 pounds). As a result, it is necessary for MassDEP to establish readiness criteria for vehicles not covered b y 40 CFR 85.2222, including light dut y diesel vehicles, medium duty

vehicles, and heavy

dut y vehicles as OBD requirements become applicable to these vehicles. This flexibility is also necessary

particularl y in light of the uncertainties associated with requiring OBD testing of heav y dut y vehicles because these vehicles are not yet equipped with OBD s ys tems. The reference to reinspections is necessary to clarify that vehicles failing to meet readiness upon reinspection will not fail the reinspection. Instead, these vehicles are turned away from reinspection as a consumer protection measure, preserving their free retest. Also, Massachusetts will be requiring that vehicles failing their initial OBD test with cataly tic converter efficiency codes have run the catal ytic converter monitor prior to reinspection. Because this requirement is beyond what is required by EPA, providing a reference to onl y 40 CFR 85.2222 is inadequate. (12) Emissions Inspection Standards effective beginning October 1, 2008. A motor vehicle shall fail the emissions inspection i f it does not meet the applicable standards established in 310 CMR 60.02(12). (b) On

- Board Diagnostics Test. A vehicle shall fail the on

- board diagnostics test if: 4.

- the vehicle’s OBD system reveals insufficient readiness codes, for light

- duty no ndiesel vehicles as prescribed in 40 CFR 85.2222 or as otherwise determined by the Department in consultation with the U.S. Environmental Protection Agency, and as determined by the Department for all other vehicles, are set for the components of the OBD s ystem except as provided for reinspections at 310 CMR 60.02(14)(b);Page 5 6/11/2009 5

Comment: Section 60.02(14)(b) states that the vehicle will be turned away from a reinspection if insufficient readiness codes are set. This section should reference EPA readiness criteria. Response: MassDEP has modified the regulation to reflect this suggestion. 

### Diesel Testing Comment: Regarding “opening up” lightweight diesel testing to regular stations; will it be possible in the new program to conduct diesel testing in an outside canopied area as it is not appropriate [for indoor air quality at the station] to diesel testing inside? Response: The testing of OBD

- equipped light duty and medium dut y di esel vehicles requires they be running for only

a brief period during the OBD test. The vehicle’s exhaust may be connected to exhaust ventilation systems without affecting test outcome. Because vehicles need to be inside a RMV approved bay for the Safet y portion of the test, and because the emissions portion of the test will be a minimal amount of engine running time, the entire test will be conducted indoors.

Comment: The data from the northeast states study indicates that less than 1% of the vehicl es are failing the [diesel] opacity test. That coupled with the fact that we are allowing fleets to do their own tailpipe testing seems to be an argument against continuing that test. As attrition takes place with these trucks, and they age and are repla ced, the old mechanical diesel injected trucks are going to be replaced by the electronic trucks which ty pically don’t fail and cannot be “hopped up” easily

to make them smoky . Considering the kind of effort that some inspectors put into the test to get the specific engine data that is required to then be able to conduct the test, is very time consuming. Response: A 1% failure rate is indicative that vehicles are being maintained and the Commonwealth’s program is working. Regarding the amount of effor t and time consumed to conduct a diesel opacit y test, there will be a considerable amount of information that will be prepopulated into future opacity tests on a vehicle after its initial test following October 1, 2008. This information will be called up based on the previous sticker or previous test result. This will minimize inspector data entry time and errors and require onl y quick confirmation that the vehicle information is correct before the inspector begins the test.

Comment: Technology

is being explored to incorporate snap verification to make sure that the probe is in the tailpipe and the engine is being raised to the correct speed, (which possibly is not being done an ywh ere else in the country). Should that procedure become problematic for th e inspectors, we may

be back to the old day s, of working for half an hour but ending with an incomplete inspection and not being able to collect the fee. Is it possible to make sure the software is setup so that if the inspector is unable to do the test p roperl y because of the snapPage 6 6/11/2009 6

verification issue, that there is a b yp ass sy stem included in there, so the inspector can by pass that part of the test? Response: If there is a problem with the testing equipment, a service ticket should be opened so that the snap verification equipment can be repaired. In the new program, the contractor is required to have the equipment repaired and back in service within one business day after a ticket is opened.


### Waivers Comment: Minimum waiver expenditures under Secti on 60.02(17)(c)8 are [lower and] not consistent with the Clean Air Act requirements at section 182(c)(3)(C)(iii) or EPA regulations at 40 CFR 51.360. Response: The Massachusetts SIP commits to a waiver rate not to exceed 1% of failing vehicles. In 2005 and 2006, approximately 2.9 million initial OBD emissions tests were administered and approximately 9.2% (272,000) vehicles failed. The Agencies issued 210 waivers to OBD vehicles that failed their initial inspection in 2005 and 2006 (less than 0.1% of ve hicles failing an initial OBD test). This waiver rate was achieved using a three

- tiered waiver cost threshold substantially less than required b y EPA regulations. The proposed increases to the three tiers will be updated annuall y to reflect changes in the consumer price index since 1989. Revised waiver provisions will also be more stringent than EPA requirements because commercial vehicles will no longer be eligible for waivers. Also, waivers will not be permitted for vehicles with certain high

- emitti ng characteristics: catal yt ic converter efficiency

codes, misfire codes, and codes for malfunctioning energy storage s ys tems in hy brid vehicles. The prohibition on waivers for certain high

- emitting characteristics is designed to be equivalent to the current provision on waivers for gross emitting vehicles: those with tailpipe emissions more than three times the cut point. Given the waiver rate commitment, the substantial increase in wavier cost thresholds, the annual CPIadjustment to waiver cost thres holds, the prohibition on waivers for commercial vehicles, and the prohibition on waivers for vehicles with certain high

- emitting characteristics, the proposed waiver provisions are at least as effective as EPA’s requirements.

Comment: The issuance of the economic hardship failure extension should be clarified in two areas. First it should be made clear that each vehicle is only eligible once, regardless of who owns the vehicle for the subsequent test. Second the definition or criteria for the econom ic hardship waiver is included in 60.02(2), but now references sections that do not seem relevant. It is recommended that the criteria of expenditure estimates of 1.5 times the waiver limit be explicitly included in the relevant section, which is now 60. 02(19). Also the Commonwealth may wish to consider some sort of demonstrated economic need on the part of the vehicle owner, before allowing a “hardship” repair time extension.Page 7 6/11/2009 7

Response: The prohibition on issuance of successive extensions, and the issu ance of a waiver following an extension is stated in 60.02(19)(e). Also, the criteria to be met for issuance of an extension included in 60.02(19)(d)9. prohibit issuance of an extension following a change of ownership or for vehicles initially registered in the Commonwealth. The section incorrectly referenced in the draft regulation has been corrected to refer to 1.5 times the waiver repair expenditure limit applicable effective October 1, 2008, as specified in 60.02(17)(c)8.(a), (b), or (c). The Departm ent considered an owner

- specific based approach to granting extensions and has determined that it would be administratively burdensome. Since older vehicles are more likel y to experience the t ypes of qualifying catastrophic failures, and these vehicles wo uld more likel y be owned b y motorists of limited means, the proposed approach provided the most easily implementable solution.


### Enforcement Comment: EPA would like the most effective enforcement of the emissions testing program as possible, and to ens ure vehicles that fail the emissions test get repaired there should be more than just a sticker on them that say s “failed,” EPA would like to see that the vehicle’s registration gets suspended. Response: The Registry of Motor Vehicles will implement an effective form of enforcement of the emissions inspection program. After evaluating the effectiveness of a registration non renewal program, which is referenced in EPA regulations as an enforcement tool, and the effectiveness of a registration suspension program, the Registry of Motor Vehicles has made a decision to implement a registration suspension program. In general, the registration suspension enforcement program will work as follows: An "Inspection Required" event will be noted in ALARS for a veh icle. Following that event, including ownership changes or new registrations, a failure to pass inspection, or an inspection sticker expires, all of which trigger a need for an inspection or a reinspection, an "Enforcement Event" will be created in ALARS. Thirty day s after the "Enforcement Event," a "Warning Letter" will be issued notifying the registered owner that a suspension will be imposed on the non - compliant vehicle unless compliance with the emissions inspection requirements are obtained. Thirty

day s after the "Warning Letter" is issued, the registration suspension will be imposed. The registration suspension can onl y be removed after compliance with the inspection requirements and pay

ment of a reinstatement fee. The only variance from the suspensi on enforcement program will occur if it is determined that an unreasonable number of registered vehicles are being misidentified as requiring an inspection, when in fact the vehicle has met the inspection requirements. In that case, in order not to unreaso nabl y and without cause suspend the registrations of compliant vehicles, the registrar reserves the right to place the enforcement program in suspension until the problem causing the misidentified vehicles has been identified and corrected.Page 8 6/11/2009 8

Attachmen t A: List of all commenters on the proposed amendments
Fred Bevins, The Car Shop, Incorporated, 27 Maplewood Avenue, Gloucester, MA 01930 (978) 283

- 9032 David Conroy, Manager, Air Programs Branch, United States Environmental Protection Agency, Region I , 1 Congress Street, Suite 1100, Boston, MA 02114

- 2023 Sal Dampolo, Sal’s Auto 299 Boston Rd., North Billerica, MA 01862 (978) 667

- 6000 David B. Conroy, Manager, Air Programs Branch, USEPA, Region I, 1 Congress Street, Suite 1100, Boston, MA 02114

- 202 3 (888) 372

- 7341 Robert Judge, Air Programs Branch, United States Environmental Protection Agency, Region I, 1 Congress Street, Suite 1100, Boston, MA 02114

- 2023 (617) 918.1045 Rusty Savignac, President of NESSARA, Paxton Garage, 593 Pleasant Street, Paxton, MA 01612 (508) 756

- 0500