COMMONWEALTH OF MASSACHUSETTS

EXECUTIVE OFFICE OF ENERGY & ENVIRONMENTAL AFFAIRS

DEPARTMENT OF ENVIRONMENTAL PROTECTION

ONE WINTER STREET, BOSTON, MA 02108 617-292-5500

DEVAL L. PATRICK

Governor

TIMOTHY P. MURRAY

Lieutenant Governor

IAN A. BOWLES

Secretary

LAURIE BURT

Commissioner

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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 Enhanced Motor Vehicle 

Inspection and Maintenance Program (IM)

Regulatory Authority: Massachusetts General Laws, Chapter 111,

Sections 142A through 142M

September 2008
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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, in 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 

March 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 new 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 by this 

program. 

Response: Included as an attachment to the SIP revision submitted to EPA are MOBILE input 

and output streams as well as post processing data. The MOBILE analysis evaluates all program 

features, including the 15-year rolling exemption, and the results of the analysis 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 year. Supporting documentation 

such as the model input and output files and the post-processing analysis 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 clarified to 

ensure that OBD2 equipped vehicles are not inappropriately 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 any vehicles 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 currently approved by EPA that allows the Commonwealth to respond quickly to 
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previously 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 other relief, or the manufacturer 

has not had an opportunity to fully effect corrections). The Department will continue to consult 

with EPA regarding vehicles that pose emissions testing problems, take appropriate interim 

action to preserve motorist convenience 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 heavy-duty vehicles. These vehicles are not currently 

equipped with OBD systems, 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 flexibility 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 able 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 Commonwealth 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 any OBD2 related problems. EPA is interested in reviewing any criteria used to 

determine if a problem 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 any 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 system communicates with the OBD test system; and (3) whether all monitors 

are reported as unsupported. Early identification of any 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 days following a failing test. MassDEP may propose 

additional criteria if appropriate and will advise EPA if any additional criteria are proposed. 
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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 when the MIL light does not illuminate when 

commanded on by the OBD2 system.

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: 

 The KOEO bulb check failure rate is low in other states; 

 Vehicles with disabled MILs are likely to be vehicles that fail the electronic scan 

of the OBD system; 

 Vehicles failing the electronic scan of the OBD system because the MIL is 

commanded on will receive a bulb check; 

 The bulb check is becoming increasingly 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 terms 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 regulation applies only to Light Duty 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 by 40 CFR 85.2222, including light duty diesel 

vehicles, medium duty vehicles, and heavy duty vehicles as OBD requirements become 

applicable to these vehicles. This flexibility is also necessary particularly in light of the 

uncertainties associated with requiring OBD testing of heavy duty vehicles because these 

vehicles are not yet equipped with OBD systems. 

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 catalytic converter efficiency

codes have run the catalytic converter monitor prior to reinspection. Because this requirement is 

beyond what is required by EPA, providing a reference to only 40 CFR 85.2222 is inadequate. 

(12) Emissions Inspection Standards effective beginning October 1, 2008. A motor vehicle shall fail the 

emissions inspection if 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

nondiesel 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 system except as provided for reinspections at 310 CMR 60.02(14)(b);
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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 duty diesel 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 Safety 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 vehicles 

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 replaced, the old mechanical diesel injected trucks 

are going to be replaced by the electronic trucks which typically 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 effort and time consumed to 

conduct a diesel opacity 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 only 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 anywhere else in the country). Should that procedure become problematic for the 

inspectors, we may be back to the old days, 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 properly because of the snap 
Page 6 6/11/2009 6

verification issue, that there is a bypass system included in there, so the inspector can bypass 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 Section 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 

vehicles failing an initial OBD test). This waiver rate was achieved using a three-tiered waiver 

cost threshold substantially less than required by EPA regulations. 

The proposed increases to the three tiers will be updated annually 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-emitting characteristics: catalytic 

converter efficiency codes, misfire codes, and codes for malfunctioning energy storage systems 

in hybrid 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 

CPI adjustment to waiver cost thresholds, 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 economic 

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.
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Response: The prohibition on issuance of successive extensions, and the issuance 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 Department considered an owner-specific based approach to granting extensions and has 

determined that it would be administratively burdensome. Since older vehicles are more likely 

to experience the types of qualifying catastrophic failures, and these vehicles would more likely 

be owned by 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 ensure vehicles that fail the emissions test get repaired there should be more than 

just a sticker on them that says “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 vehicle. 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 days 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 days after the "Warning Letter" is issued, the registration suspension will be 

imposed. The registration suspension can only be removed after compliance with the inspection 

requirements and payment of a reinstatement fee. 

The only variance from the suspension 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 

unreasonably 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.
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Attachment 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 02114-2023 (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