Approval and Promulgation of Air Quality Implementation Plans; Virginia; Incorporation of On-Board Diagnostic Testing and Other Amendments to the Motor Vehicle Emission Inspection Program for the Northern Virginia Program Area, 8018-8026 [E8-2552]
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Federal Register / Vol. 73, No. 29 / Tuesday, February 12, 2008 / Proposed Rules
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balance held in such account for
purposes of determining requiredreserve deficiencies, imposing or
waiving charges for deficiencies in
required reserves, and for other reserve
maintenance purposes. A charge for a
deficiency in the aggregate level of the
required reserve balance will be
imposed by the Reserve Bank on the
correspondent maintaining the account.
(ii) Each correspondent is required to
maintain detailed records for each of its
respondents in a manner that permits
Reserve Banks to determine whether the
respondent has provided a sufficient
required reserve balance to the
correspondent. A correspondent passing
through a respondent’s required reserve
balance shall maintain records and
make such reports as the Board or
Reserve Bank requires in order to ensure
the correspondent’s compliance with its
responsibilities for the maintenance of a
respondent’s reserve balance. Such
records shall be available to the Reserve
Banks as required.
(iii) The Federal Reserve Bank may
terminate any pass-through agreement
under which the correspondent is
deficient in its recordkeeping or other
responsibilities.
(iv) Interest paid on supplemental
reserves (if such reserves are required
under § 204.10) held by a respondent
will be credited to the account
maintained by the correspondent.
(e) Any excess or deficiency in an
institution’s required reserve balance
shall be carried over and applied against
the balance maintained in the next
maintenance period as specified in this
paragraph. The amount of any such
excess or deficiency that is carried over
shall not exceed the greater of:
(1) The amount obtained by
multiplying .04 times the sum of
depository institution’s required
reserves and the depository institution’s
contractual clearing balance, if any, and
then subtracting from this product the
depository institution’s clearing balance
allowance, if any; or
(2) $50,000, minus the depository
institution’s clearing balance allowance,
if any. Any carryover not offset during
the next period may not be carried over
to subsequent periods.fl
6. Section 204.6 is redesignated as
§ 204.10, and a new § 204.6 is added to
read as follows:
charges for deficiencies in required
reserves at a rate of 1 percentage point
per year above the primary credit rate,
as provided in § 201.51(a) of this
chapter, in effect for borrowings from
the Federal Reserve Bank on the first
day of the calendar month in which the
deficiencies occurred.—Charges shall be
assessed on the basis of daily average
deficiencies during each maintenance
period. Reserve Banks may, as an
alternative to levying monetary charges,
after consideration of the circumstances
involved, permit a depository
institution to eliminate deficiencies in
its required reserve balance by
maintaining additional reserves during
subsequent reserve maintenance
periods.
(b) Reserve Banks may waive the
charges for reserve deficiencies except
when the deficiency arises out of a
depository institution’s gross negligence
or conduct that is inconsistent with the
principles and purposes of reserve
requirements. If a depository institution
has demonstrated a lack of due regard
for the proper maintenance of required
reserves, the Reserve Bank may decline
to exercise the waiver privilege and
assess all charges regardless of amount
or reason for the deficiency.
(c) In individual cases, where a
federal supervisory authority waives a
liquidity requirement, or waives the
penalty for failing to satisfy a liquidity
requirement, the Reserve Bank in the
District where the involved depository
institution is located shall waive the
reserve requirement imposed under this
part for such depository institution
when requested by the federal
supervisory authority involved.
(d) Violations of this part may be
subject to assessment of civil money
penalties by the Board under authority
of Section 19(1) of the Federal Reserve
Act (12 U.S.C. 505) as implemented in
12 CFR part 263. In addition, the Board
and any other Federal financial
institution supervisory authority may
enforce this part with respect to
depository institutions subject to their
jurisdiction under authority conferred
by law to undertake cease and desist
proceedings.fi
ߤ 204.6 Charges for reserve
deficiencies.
7. The authority citation for part 209
continues to read as follows:
(a) Deficiencies in a depository
institution’s required reserve balance,
after application of the carryover
provided in § 204.5(e) are subject
reserve-deficiency charges. Federal
Reserve Banks are authorized to assess
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PART 209—ISSUE AND
CANCELLATION OF FEDERAL
RESERVE BANK CAPITAL STOCK
(REGULATION I)
Authority: 12 U.S.C. 2222, 248, 282, 286–
288, 321, 323, 327–328, 333, and 466.
8. Section 209.2 is amended by
revising paragraph (c)(1) to read as
follows:
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§ 209.2
banks.
Banks desiring to become member
*
*
*
*
*
(c) * * *
(1) General rule. For purposes of this
part, a national bank or a state bank is
located in the Federal Reserve District
that contains the location specified in
the bank’s charter or organizing
certificate, flor as specified by the
institution’s primary regulator,fi or if
no such location is specified, the
location of its head office, unless
otherwise determined by the Board
under paragraph (c)(2) of this section.
*
*
*
*
*
By order of the Board of Governors of the
Federal Reserve System, February 7, 2008.
Jennifer J. Johnson,
Secretary of the Board.
[FR Doc. E8–2558 Filed 2–11–08; 8:45 am]
BILLING CODE 6210–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2007–0185; FRL–8528–2]
Approval and Promulgation of Air
Quality Implementation Plans; Virginia;
Incorporation of On-Board Diagnostic
Testing and Other Amendments to the
Motor Vehicle Emission Inspection
Program for the Northern Virginia
Program Area
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: EPA is proposing to approve
three State Implementation Plan (SIP)
revisions submitted by the
Commonwealth of Virginia. These
revisions pertain to the
Commonwealth’s motor vehicle
inspection and maintenance (I/M)
program for the Northern Virginia area,
which had previously been SIPapproved by EPA. These revisions
incorporate several changes made by the
Commonwealth since EPA last
approved the I/M program as part of the
SIP in 2002. The most significant
change to the program is the
incorporation of on-board diagnostic
computer checks of 1996 and newer
model year vehicles as an element of the
emission inspection process for the
Northern Virginia program area. In
addition, Virginia has also made
numerous minor changes to the
program, including several changes to
test procedures and standards, as well
as changes to its roadside testing
regimen. The I/M program helps to
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Federal Register / Vol. 73, No. 29 / Tuesday, February 12, 2008 / Proposed Rules
ensure that highway motor vehicles
operate as cleanly as possible, by
requiring vehicles to be periodically
tested and by identifying vehicles
having high emissions due to
malfunctioning emission control
systems. Such vehicles must then be
repaired and retested by their owners, to
the standards set by the
Commonwealth’s program. Vehicle I/M
programs address nitrogen oxide and
volatile organic compound emissions,
both of which are precursors to
formation of ground level ozone
pollution, as well as the pollutant
carbon monoxide. This action is being
taken under the Clean Air Act (CAA).
DATES: Written comments must be
received on or before March 13, 2008.
ADDRESSES: Submit your comments,
identified by Docket ID Number EPA–
R03–OAR–2007–0185 by one of the
following methods:
A. https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
B. E-mail:
fernandez.cristina@epa.gov.
C. Mail: EPA–R03–OAR–2007–0185,
Cristina Fernandez, Chief, Air Quality
Planning Branch, Mailcode 3AP21, U.S.
Environmental Protection Agency,
Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
D. Hand Delivery: At the previouslylisted EPA Region III address. Such
deliveries are only accepted during the
Docket’s normal hours of operation, and
special arrangements should be made
for deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–R03–OAR–2007–
0185. EPA’s policy is that all comments
received will be included in the public
docket without change, and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through https://
www.regulations.gov, your e-mail
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
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submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses.
Docket: All documents in the
electronic docket are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, i.e., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the Internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available either
electronically in https://
www.regulations.gov or in hard copy
during normal business hours at the Air
Protection Division, U.S. Environmental
Protection Agency, Region III, 1650
Arch Street, Philadelphia, Pennsylvania
19103. Copies of the State submittal are
available at the Virginia Department of
Environmental Quality, 629 East Main
Street, Richmond, Virginia 23219.
FOR FURTHER INFORMATION CONTACT:
Brian Rehn, (215) 814–2176, or by email at rehn.brian@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA.
Table of Contents
I. What Action Is EPA Proposing To Take?
II. Background
III. Summary of the Commonwealth’s SIP
Revisions
IV. General Information Pertaining to SIP
Submittals From the Commonwealth of
Virginia
V. Proposed Action
VI. Statutory and Executive Order Reviews
I. What Action Is EPA Proposing To
Take?
On December 18, 2002, the
Commonwealth of Virginia formally
submitted a revision to its prior
approved enhanced I/M program SIP for
the Northern Virginia inspection and
maintenance program. On April 2, 2003,
the Virginia Department of
Environmental Quality (VA DEQ)
submitted a SIP technical amendment to
the December 18, 2002 SIP revision. On
June 18, 2007, VA DEQ submitted
another SIP revision, which contained
updated I/M program regulations made
since the time of the last SIP submittal.
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The Northern Virginia I/M program
area is comprised of the following
localities: the counties of Arlington,
Fairfax, Loudoun, Prince William, and
Stafford; and the cities of Alexandria,
Fairfax, Falls Church, Manassas, and
Manassas Park. It is designated by EPA
as a moderate 8-hour ozone
nonattainment area. The
Commonwealth’s revised program
satisfies federal requirements under
sections 182 and 184 of the Clean Air
Act applicable to enhanced I/M
programs, and EPA is, therefore,
proposing to approve the
Commonwealth’s revisions to the SIP
approved I/M program.
II. Background
On December 18, 2002, the VA DEQ
submitted a formal request to EPA to
revise the Commonwealth’s SIP in
relation to its motor vehicle enhanced
I/M program. The Commonwealth later
submitted two other SIP revisions
related to the enhanced I/M program—
on April 2, 2003 and on June 18, 2007.
These latest revisions serve to amend
the Commonwealth’s prior, EPAapproved enhanced I/M SIP, which was
published as a final rulemaking action
in the September 1, 1999 edition of the
Federal Register (64 FR 47670).
The Commonwealth’s December 18,
2002 SIP revision consists of a revised
emissions inspection program
regulation published in the June 17,
2002 edition of the Virginia Register of
Regulations (Volume 18, Issue 20),
which amended a 1999 version of that
regulation. Virginia’s regulation,
codified at Title 9, Chapter 91 of the
Virginia Administrative Code (VAC), is
entitled ‘‘Regulations for the Control of
Motor Vehicle Emissions in the
Northern Virginia Area,’’ but is also
referred to here as the Virginia I/M
regulation. The Commonwealth
amended its emissions inspection
program regulations to reflect technical
changes that Virginia DEQ deemed
necessary for continued program
operation since the inception of its
enhanced emission inspection program.
Some of these regulatory amendments
were made by Virginia to reflect
changing federal requirements and
policies that apply to enhanced
emission inspection programs, and
some updates were to address changes
made to relevant Virginia law since the
inception of the enhanced I/M program.
The most significant of the changes
comprised within the December 18,
2002 SIP revision is the incorporation of
on-board diagnostic checks of 1996 and
newer vehicles subject to emissions
testing. Virginia also updated its testing
procedures to stay abreast of changes
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needed based upon past operation of the
program, and modified applicability of
the program to address the changing
dynamic of the vehicle fleet operating in
the program area. Finally, Virginia also
amended its regulation to enhance the
Commonwealth’s ability to effectively
enforce the emission inspection
program.
Virginia later submitted a SIP revision
on April 2, 2003, which makes a
technical correction to the emission
inspection program regulation for
Northern Virginia. This latter
amendment corrects a technical error in
Virginia’s prior emission inspection
program regulation concerning emission
inspector identification numbers.
Virginia’s June 18, 2007 SIP revision
contains newer regulatory amendments
made by Virginia since the June 2002
version of the regulation contained in
the December 18, 2002 SIP revision.
The June 18, 2007 SIP revision
revised provisions related to on-road
testing of vehicles (i.e., remote sensing)
operating primarily in Northern Virginia
to ensure motorist compliance and to
supplement State enforcement
activities.
EPA is taking a single rulemaking
action today upon the December 18,
2002, the April 2, 2003, and the June 18,
2007 SIP revisions.
III. Summary of the Commonwealth’s
SIP Revisions
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A. Virginia’s December 18, 2002 SIP
Revision
In 2002, Virginia issued a final rule
revising the inspection and maintenance
of motor vehicles. This revised
regulation was published in the June 17,
2002 edition of the Virginia Register of
Regulations (Volume 18, Issue 20), and
was submitted to EPA as part of the
December 18, 2002 SIP revision. The
program was revised to update the
regulations to reflect changes made in
the operation of emissions testing in
Virginia since the last major update of
the I/M regulation in 1999. The
regulation was also changed to reflect
changes in Federal requirements
applicable to I/M programs since the
enhanced I/M program was SIPapproved by EPA. The program was also
amended to reflect changes in Virginia
law relevant to the I/M program since
the inception of the enhanced I/M
program.
Among the most significant of the
Commonwealth’s regulatory
amendments was the incorporation and
implementation of on-board diagnostic
testing as a mandatory testing element
for 1996 and newer vehicles equipped
with second generation on-board
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diagnostics systems. Other June 2002
State I/M regulatory amendments reflect
changes in the way the program was
being operated since the regulations had
previously been amended in 1999. As
was stated earlier, Virginia incorporated
regulatory updates to reflect changes in
Federal and State law relevant to the I/
M program. Finally, some changes were
made to improve the Commonwealth’s
ability to oversee the program and to aid
in enforcement of the program.
Virginia submitted its revised
regulation as a formal SIP revision to
EPA on December 18, 2002, with a
technical correction amendment
submitted on April 2, 2003. Below is a
summary of the most significant
changes to the Commonwealth’s vehicle
emission inspection program
regulations submitted as part of the
December 18, 2002 SIP revision:
1. Incorporates on-board diagnostic
testing for OBD–II compliant vehicles
and subjects OBD–II equipped 1997 and
newer diesel-powered vehicles to the
program for the first time.
2. Program coverage revised to exempt
vehicles 25 years old and older at the
time of testing, in lieu of the previous
exemption of 1968 and older model
vehicles.
3. Revision of acceleration-simulation
mode (ASM) emission standards and
removal of ASM test procedure prescreening requirements.
4. Tightening of two-speed idle
emission test standards, to reflect
advanced technology and related lower
emission levels of 1990 and newer
vehicles.
5. Relaxation of roadside remote
sensing standards, and greater flexibility
for VA DEQ in use of various pollutants
as roadside screening criteria.
6. Repeal of requirement for
evaporative system purge testing.
7. Revision of requirements for
Federal and private fleet testing and
reporting, and addition of ‘‘sensitive
mission vehicle’’ fleet emission
inspection station permit category.
8. Revision of visible emissions
standard to include a standard for
diesel-powered vehicles now subject to
OBD testing.
9. Elimination of deadlines for waiver
limit increases that have already passed;
and requirement for vehicles that
received a waiver in another State to be
tested if subject to Virginia’s I/M
program.
10. Repeal of requirements limiting
warranty eligibility for certain emissions
short tests.
11. Modification of penalty schedule
for major violations related to emissions
inspections.
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12. Revision of a number of
definitions to reflect related regulatory
changes, and repeal of others that are no
longer needed to support the
Commonwealth’s regulations.
A more detailed summary of each of
these June 2002 regulatory changes is
detailed below, with additional
information provided in the technical
support document prepared by EPA in
support of this rulemaking action.
1. Addition of On-Board Diagnostics
Inspections
Subject 1996 and newer subject
vehicles equipped with second
generation on-board diagnostics systems
(OBD–II) will receive electronic checks
of their on-board diagnostics systems in
lieu of other emissions tests. An OBD
check consists of a visual check of the
dashboard indicators and an electronic
examination of the OBD computer for
potential stored fault information. OBDequipped 1997 and newer light duty
diesel vehicles are also required to be
OBD tested.
Virginia’s I/M regulation established a
start date of October 2002 to commence
mandatory OBD checks of gasolinepowered vehicles under its I/M
program, with the option to delay
testing if the VA DEQ determined its
OBD test equipment was unavailable or
not ready. After the occurrence of such
an equipment-related delay, Virginia
began mandatory OBD testing on
gasoline-powered vehicles in November
2005. For the first time, Virginia’s June
2002 regulation requires the addition of
mandatory OBD checks for light duty
diesel-powered vehicles, to begin no
later than October 2006. However, in
practice VA DEQ delayed dieselpowered OBD checks and instead began
diesel OBD checks as part of the I/M
program in May 2007 (for vehicles with
registrations expiring July 2007).
For most vehicles subject to OBD
checks under Virginia’s program, an
OBD check will be performed in lieu of
tailpipe testing (i.e., ASM or 2-speed
idle tests). However, VA DEQ may also
perform exhaust tests on a limited basis,
in addition to an OBD check, for quality
control or program evaluation purposes.
Some vehicles that are known to have
OBD system problems may be exempted
by VA DEQ from an OBD check and
instead be given tailpipe tests. Vehicles
whose OBD system is determined to be
‘‘not ready’’ to be checked, as defined by
Virginia regulation, will be rejected
from testing.
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2. Model Year Coverage Revised to
Exempt 25-Year-Old and Older Vehicles
From Testing
Virginia revised its I/M program
model year coverage, moving to a rolling
exemption for vehicles 25 years and
older at the time of inspection, in place
of its previous age-based exemption for
1968 and older vehicles. Virginia statute
required this change, and DEQ has
implemented this practice since July
2000. The change results in a decrease
in the number of cars being tested under
the I/M program, as each year another
model year is exempted. In 2004, the
last year Virginia provided data, VA
DEQ estimated this model year coverage
change would result in the testing of
approximately 19,400 fewer vehicles.
Virginia estimates that this will result in
an increase of volatile organic
compound (VOC) emissions of
approximately 0.55 tons per day in
2002, or about 3.5% of the total VOC
emissions reductions associated with
the I/M program. No nitrogen oxide
(NOX) penalty has been associated with
this change, as the vehicles affected
would have been tested with idle testing
(in the 2002 and 2005 evaluation
timeframes for which I/M programs
were required to be evaluated under the
Federal I/M rule). Virginia did not
calculate carbon monoxide (CO) impacts
from this change, as the Northern
Virginia region is classified as CO
attainment, and a CO emissions
inventory for this timeframe was
unavailable. Virginia has modeled the
25-year rolling exemption in the
attainment demonstration and
reasonable further progress plans for the
Metropolitan Washington DC 1-hr ozone
nonattainment area.
3. Revision of ASM Test Standards/
Removal of ASM Test Procedure PreScreening Requirements
Virginia’s June 2002 I/M regulation
revised the testing standards, or
cutpoints, for determining whether
vehicles pass or fail Virginia’s 2-mode
ASM 5015/2525 tailpipe emissions test.
Virginia had previously required that
start-up standards were to be used for
one year after program implementation,
per EPA’s ASM technical guidance
document entitled ‘‘Acceleration
Simulation Mode Test Procedures,
Emissions Standards, Quality Control
Requirements, and Equipment
Specifications’’ (draft dated July 2000,
final dated July 2004). Virginia’s 2002
revised rule applies final ASM
standards, unless VA DEQ determines
that phase-in standards or interim
standards (i.e., less stringent than final,
but more stringent than phase-in
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standards) should be used. Such a
determination would be based upon
results of emissions inspections from
ASM tests performed under the program
and after consultation with vehicle
manufacturers, EPA, and appropriate
research organizations. Virginia also
removed ASM test standards for those
model year vehicles no longer subject to
testing, due to its age-based exemption
for vehicles older than 25 years.
4. Revision of 2-Speed Idle Test
Standards
Under the June 2002 I/M rule
revision, Virginia enacted more
stringent emissions test standards, or
cutpoints, for 2-speed idle tailpipe
emissions testing conducted on some
1990 and newer vehicles. VA DEQ
determined that more stringent 2-speed
idle testing was justified, based upon an
analysis of failure rates for these
vehicles subject to 2-speed idle testing
and also by reviewing standards and fail
rates from other programs that use 2speed idle testing. Previously, 1990 and
newer vehicles having advanced
technology needed only to meet
standards applicable to 1981 and older
vehicles. Some of these newer,
advanced technology vehicles with
known faults were able to pass the test
under the previous, less stringent
standard for 1981 and older vehicles.
The revised 2-speed idle cutpoints are
110 parts per million (ppm) of
hydrocarbon (HC) and 0.75% carbon
monoxide (CO), where they had been
220 ppm HC and 1.2% CO. Virginia has
been testing under these more stringent
cutpoints since October 2002. As part of
the SIP, VA DEQ estimated the number
of additional vehicles that would fail
with the more stringent standards in
place. For 2004, which was the latest
year for which Virginia provided an
estimate, about 800 additional vehicles
were expected to fail than would have
if the less stringent standards had
remained in place.
5. Relaxation of Roadside Remote
Sensing Standards and Flexibility for
VA DEQ To Use Various Pollutants for
Roadside Screening Criteria
Roadside remote sensing program
requirements were revised by Virginia
in its June 2002 revised I/M program
rule. Remote sensing is used to ensure
motorist compliance with the program.
Remote sensing reads a vehicle as it
passes by a roadside sensor, after which
the vehicle’s emissions are checked
against standards set by the state. In the
case of Virginia’s remote sensing
program, if the vehicle is checked twice
in a 90-day period and has emissions
beyond the standards, the owner may be
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required to undergo an out-of-cycle
emissions test. Virginia relaxed its
remote sensing emissions standards as
part of the June 2002 I/M rule revision
to avoid the potential for false failures
of the remote sensing test (i.e., to avoid
failing vehicles using remote sensing
that would otherwise pass regular
tailpipe emissions or OBD checks).
Putting aside differences between
Virginia’s regular tailpipe tests versus a
remote sensing test, there is a level of
uncertainty when comparing vehicles in
a station tailpipe testing environment
versus roadside remote sensing. Virginia
revised its remote sensing test standards
to ensure an adequate margin of error to
avoid subjecting motorists to
unnecessary out-of-cycle emissions
tests. Virginia also revised its remote
sensing test criteria to allow VA DEQ to
use HC or CO, or a combination of both,
as criteria for remote sensing pass or
fail.
At the time of the December 2002 SIP
revision, Virginia had not yet performed
mandatory remote sensing testing as
part of its I/M program. Virginia
subsequently conducted a pilot remote
sensing program to evaluate potential
problems with remote sensing prior to
use of remote sensing as a mandatory
element of the I/M program, and as a
result subsequently revised its remote
sensing program. Those changes, as well
as others related to remote sensing as a
tool to ensure ongoing motorist
compliance were submitted as part of
the June 18, 2007 SIP revision, and are
discussed below, in the portion of this
rulemaking related to that SIP submittal.
EPA is taking action on both the
December 18, 2002 SIP revision, and the
later, June 18, 2007 SIP revisions, which
updated the December 18, 2002
provisions. Where the same regulatory
provisions are included in both SIP
submittals, EPA is proposing to take
action on the most recent version of the
regulatory provisions.
6. Revision of Requirements for
Evaporative System Pressure and Purge
Testing
As part of its June 2002 regulatory
revisions, Virginia removed the
requirement to conduct evaporative
system purge testing from the I/M
program. Purge testing was a means to
measure the instantaneous purge flow
from the vehicle’s evaporative canister
to the engine’s intake manifold, in order
to ensure proper operation of the
evaporative system. The purge test was
to have been performed in conjunction
with ASM testing beginning in 1999. In
a November 5, 1996 policy memo, EPA
determined purge testing to be intrusive
and potentially damaging, and therefore
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did not enforce the implementation of
this requirement. A suitable alternative
test has never materialized, and the
latest version of EPA’s emission factor
model, MOBILE6, has eliminated any
HC emissions benefit associated with
purge testing. Virginia never
implemented purge testing as part of its
I/M program, and EPA has never acted
to enforce that SIP provision of
Virginia’s prior approved SIP. Given
this reality, Virginia removed purge
testing as an element of the I/M program
in its June 2002 revised rule.
Implementation of evaporative
pressure testing has been left to the
discretion of VA DEQ. The evaporative
pressure test is a test to measure levels
of evaporated fuel between the fuel tank
and the engine to ensure the system is
not compromised and releasing these
emissions to the ambient air. Virginia’s
prior approved SIP required evaporative
emissions testing to have begun in 1998,
but such testing was delayed due to
technical limitations of the pressure
test. EPA acknowledged difficulties
with evaporative canister-based
pressure testing in a November 5, 1996
policy memo (as well as discussing a
potential fill pipe-based alternative in
conjunction with gas cap testing).
Virginia revised its I/M rule in June
2002 to indefinitely delay
implementation of pressure testing as an
element of Virginia’s I/M program, to a
date to be determined the director of the
VA DEQ (with at least one year
notification to station owners in the
event the test is to be implemented).
It should be noted that modern OBD
systems have sensors to detect leaks in
the evaporative system, and to monitor
the purge system, so 1996 and newer
vehicles will be have their evaporative
systems monitored via an OBD check as
part of the program. The MOBILE model
now reflects emissions benefits from
this check of newer vehicles.
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7. Revision of Requirements for Federal
and Private Fleet Testing and Reporting
Virginia made several changes with
respect to the testing of federal fleet
vehicles in its December 2002 SIP
revision. Under the prior approved SIP,
federal fleets had been required to
submit compliance reports to VA DEQ,
while private fleets were not subject to
compliance reporting. Virginia revised
its I/M program rule in June 2002 to
rescind the requirement that
administrators of federal fleets submit
reports to VA DEQ to demonstrate fleet
compliance, thus treating federal and
private fleets equally. At the same time,
Virginia repealed a related requirement
for federal fleets to remit a $2 annual fee
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for each vehicle not registered with the
Virginia Department of Motor Vehicles.
Virginia also added ‘‘sensitive
mission vehicle emissions fleet
inspection station’’ to the list of
qualified applicants who can apply to
VA DEQ for inspection station permits.
This change allows agencies such as the
Central Intelligence Agency and Federal
Bureau of Investigation to establish
inspection stations, in order to avoid
potential exposure of their sensitive
mission vehicles (as defined under
Virginia’s I/M rule) when undergoing
emissions testing.
8. Revision of Visible Emissions
Standard To Include a Standard for
Diesel-Powered Vehicles Subject to OBD
Testing
Virginia added a standard for visible
air pollutant emissions for dieselpowered vehicles that are now subject
to OBD testing as part of Virginia’s I/M
program in its June 2002 rule revision.
The standard limits emission of visible
air pollutants from the tailpipe of a
subject diesel vehicle to a density of no
more than 20% opacity for longer than
10 consecutive seconds (after the engine
reaches operating temperature), per
Reference Method 9.
9. Elimination of Deadlines for Waiver
Limit Increases That Have Already
Passed and Established Criteria for
Issuance by VA DEQ of Temporary
Waiver If Necessary Repair Parts Are
Not Available
Repair waivers are a form of I/M
program compliance that allow the
motorist to comply with an I/M program
without meeting the applicable test
standard. A waiver may be issued if the
vehicle fails an inspection, undergoes
qualifying repairs up to a programdesignated repair cost waiver limit, and
then fails its retest. EPA rules allowed
programs to phase-in waiver limits to a
statutory limit of $450, adjusted by the
Consumer Price Index (CPI). Virginia
removed phase-in deadlines for full
waiver cost compliance under the June
2002 I/M rule revision, instead stating
that beginning January 2003 waiver
eligibility shall be $450 adjusted to
reflect the increase in the CPI.
Virginia amended its June 2002 I/M
rule to include criteria for issuance of a
temporary waiver due to unavailability
of components necessary to complete
repairs to pass the test or to qualify for
a waiver. To obtain a temporary waiver,
the motorist must provide a signed
statement from an owner of a parts
supplier stating that needed parts are
unavailable, including a description and
part number(s) of said parts.
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10. Repeal of Requirements Limiting
Warranty Eligibility for Certain
Emissions Short Tests
Virginia repealed its short test
standards for warranty eligibility (9
VAC 5–91–470) in its June 2002 rule
revision. In the past, this language had
served to ensure that short test
emissions results did not exceed 220
ppm of HC and 1.2% CO. However,
with the June 2002 revision of Virginia’s
2-speed idle test standards and the
change in I/M program model year
coverage to vehicles 25 years and newer,
there are no longer any vehicles subject
to I/M (and which are eligible for federal
emissions warranty coverage) for which
test cutpoints exceed the threshold of
220 ppm HC and 1.2% CO. Therefore,
the warranty eligibility provisions of 9
VAC 5–91–470 are no longer relevant,
and have thus been repealed by
Virginia.
11. Modification of Penalty Schedule for
Major Violations Related to Emissions
Inspections
In their June 2002 I/M rule revision,
Virginia revised their list of regulatory
provisions (9 VAC 5–91–620) of which
a violation constitutes a major violation.
Major violations are defined by Virginia
as the most serious offenses resulting
from unacceptable performance in
conducting emissions inspections that
would directly affect the credibility,
integrity, and emissions reductions
associated with the I/M program.
Virginia indicated in the SIP revision
that this revised list of provisions (of
which a violation constitutes a major
violation) is a reflection of the
additional flexibility incorporated in the
revised regulation for emission
inspection procedures.
12. Revision of a Number of Definitions
To Reflect Related Regulatory Changes,
and Repeal Others That Are No Longer
Needed To Support the
Commonwealth’s Regulations
Virginia revised a number of its
definitions of terms in 9 VAC 5–91–20,
and repealed others altogether, in
support of other changes made to the
Commonwealth’s I/M rule in June 2002.
Some terms were also revised for
improved clarity, while others were
revised to correct cross-references to
other revised regulatory sections.
Terms that were revised include:
access code; actual gross weight;
affected motor vehicle; air system;
alternative fuel; certified enhanced
analyzer system; chargeable inspection;
curb idle; dedicated alternative fuel
vehicle; emissions control systems;
enhanced emissions inspection
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program; evaporative system pressure
test; flexible fuel vehicle; formal
hearing; fuel filler cap pressure test;
gross vehicle weight rating (GVWR);
informal fact finding; inspection fee;
motor vehicle; motor vehicle inspection
report; on-board diagnostic system (OBD
system); on-board diagnostic system test
(OBD system test); on-board diagnostic
vehicle (OBD vehicle); operated
primarily; reinspection or retest; remote
sensing; thermostatic air cleaner; twospeed idle test (TSI); and vehicle
specific power (VSP).
Terms that were repealed include:
aborted test; alternative evaporative
system purge and pressure test;
emissions repair facility; emissions
repair technician; evaporative system
purge test; federal employee; federal
facility; gross weight; inspector access
code; inspector number; original
equipment manufacturer (OEM); state
implementation plan; thermometer,
certified; and Tier 1.
Terms that were newly added by
Virginia include: aborted test; emissions
control equipment; identification
number; and implementation plan
(replacing state implementation plan,
which has been removed).
In addition to the items detailed
above, Virginia made several other
changes to the I/M rule as part of the
December 18, 2002 SIP revision that are
organizational in nature, or are
otherwise minor in importance, and are
not discussed in detail in this action.
Please refer to the technical support
document prepared in support of this
action, or to this version of the
Commonwealth’s I/M regulation, which
was published in the Virginia Register of
Regulations on June 17, 2002 and can be
found in the docket for this action.
B. Virginia’s June 18, 2007 SIP Revision
Virginia again revised its I/M program
regulations codified in Title 9, Chapter
91 of the Virginia Code in a final rule
published in the Virginia Register of
Regulations on May 30, 2005 (Volume
21, Issue 19). Virginia submitted this
latest version of its I/M regulation (9
VAC 5–91) as part of a June 18, 2007 SIP
revision submitted to EPA. The
submitted portions of this more recent
version of the Commonwealth’s I/M
regulation supersedes those portions of
9 VAC 5–91 published earlier that were
submitted to EPA in the prior SIP
submittal (i.e., the December 18, 2002
SIP revision). Where Virginia has
submitted the same regulatory
provisions in separate SIP revisions,
EPA is proposing to act upon the later
version of the regulation.
The Commonwealth’s May 2005
regulation serves to make a number of
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changes to Virginia’s roadside testing
program (i.e., remote sensing)
provisions of the regulation. The remote
sensing program is a roadside test to
ensure that vehicles primarily operated
in the I/M program area do not grossly
exceed emissions limits set by the I/M
program. The program serves both to
identify high emitting vehicles subject
to regular I/M checks, and to monitor
vehicles that are not subject to
traditional biennial emissions
inspections in Virginia. Roadside testing
can serve to identify subject vehicles
that have become high emitters since
their last regular biennial emission
inspection, or that may have been high
emitters at the time of their most recent
inspection but passed that test in error.
Roadside remote sensing observations
may require motorists with vehicles
identified as high emitters by roadside
testing to undergo an additional ‘‘off
cycle’’ I/M inspection, or in the
alternative to pay a civil penalty.
In general, the Commonwealth
amended the regulation to reflect new
remote sensing emissions standards,
and the criteria for conducting random,
roadside ‘‘off-cycle’’ testing of motor
vehicle emissions, as well as protocols
for testing and procedures to notify
owners of test results.
The Commonwealth’s regulatory
changes relate primarily to:
1. Changes in remote sensing model
year applicability, relating to vehicles
subject to remote sensing;
2. Protocols for determination of gross
polluters and clean car screening;
3. Changes to remote sensing test
procedures;
4. Changes to remote sensing test
standards;
5. Financial assistance provisions;
6. Changes in enforcement and
compliance procedures; and
7. Changes to regulatory definitions.
A summary of these changes made by
Virginia under the May 2005 final rule
are detailed below:
1. Changes in Remote Sensing Model
Year Applicability
Virginia amended its regulation in
order to comply with changes to the
Code of Virginia. Model year coverage,
with respect to remote sensing under 9
VAC 5–91–180, was expanded to
include vehicles of model year 1968 and
newer. Previously, applicability for
remote sensing was limited to those
‘‘affected vehicles’’ subject to I/M
testing (i.e., the 25 most recent model
years). The Commonwealth also revised
their definition of ‘‘operate primarily’’
(for purposes of remote sensing) to
include a vehicle observed by roadside
remote sensing equipment at least three
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times in a two-month period (with no
less than 30 days between the first and
last readings). Vehicles exceeding the
standards twice in any 120-day period
(as opposed to the Commonwealth’s
previous requirement for 90-day
observation period) will be determined
to have violated the standards, and will
require a confirmation test (ASM or
OBD test) at an emission inspection
station.
2. Protocols for Determination of High
Emitting Vehicles and Clean Screening
Virginia has amended is protocols for
determining whether a vehicle is a gross
polluter. Virginia’s ‘‘high emitter index’’
is a means of categorizing probable
emission failure rates of engine families.
The index is determined by calculating
the historical emissions inspection
failure rate (by vehicle model year,
make, model, and engine size) to the
historical emissions inspection failure
rate of all the engine families in that
same group. Failure rates are based on
the most recent full year of emissions
inspection test data. Vehicles with a
high emitter index of greater than 75 are
deemed high emitters.
Beginning January 1, 2005, motor
vehicles that exceed the Virginia’s
remote sensing emissions standards on
two separate days in any 120-day period
shall be considered to have violated the
emissions standards. In addition, the
department may use the high emitter
index as a screening requirement.
Beginning July 1, 2005, based on
analysis of remote sensing failure rates
and confirmation test results, the VA
DEQ may determine than an affected
vehicle is a high emitter if the vehicle
exceeds remote sensing standards a
single time and has a ‘‘high emitter
index’’ of greater than 75.
Beginning July 1, 2005, clean
screening will be used by Virginia to
identify affected vehicles eligible for an
exemption from their next scheduled
emissions test. Up to five percent of the
total vehicles measured by on-road
testing (i.e., remote sensing) during any
30-day period may be identified as
‘‘clean screen vehicles’’. At the
discretion of VA DEQ, vehicles
identified as such may receive a ‘‘pass’’
for their next scheduled emissions test,
without undergoing a regular, biennial
emissions inspection.
3. Changes to Remote Sensing Test
Procedures
Virginia has amended its exhaust
emissions standards for its remote
sensing program. Beginning July 1,
2005, motor vehicles determined to
exceed roadside remote sensing
standards after two or more
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measurements in any 120-day period,
shall be considered to have violated
emissions standards and shall be subject
to an off-cycle, confirmation test. A
vehicle exceeding the remote sensing
standards a single time (which is also
determined by the VA DEQ to have a
‘‘high emitter index’’ greater than 75)
will be subject to an off-cycle,
confirmation test.
Vehicles subject to confirmation
testing may be subject to the applicable
emissions test for their vehicle, and
vehicles 1996 and newer may be subject
to exhaust testing, in addition to an
OBD system test. A failed confirmation
inspection (ordered by VA DEQ due to
a roadside, remote sensing test failure)
will be a chargeable inspection, while a
passing confirmation test will not result
in a test fee.
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4. Changes to Remote Sensing Test
Standards
Virginia has revised its remote
sensing exhaust emission standards to
establish separate standards for lightduty gasoline vehicles (i.e., passenger
cars), light-duty gasoline trucks, and
heavy-duty gasoline vehicles.
Additionally, Virginia has established
standards that apply in the case where
two or more on-road, remote sensing
measurements are gathered for an
applicable vehicle over a 120-day
period. Separate standards apply in the
case of a single on-road measurement,
where a vehicle is also determined by
VA DEQ to have a ‘‘high emitter index’’
of 75 or more.
Virginia has for the first time
established nitric oxide (NO) remote
sensing standards, in addition to
existing standards for HC and CO.
All remote sensing measurements are
to be measured based upon vehicle
specific power (VSP), which is a means
of utilizing vehicle speed, drag
coefficient, tire rolling resistance and
roadway grade to characterize the load
under which a vehicle is operating at
the time a remote measuring
measurement is taken. Only valid
remote sensor measurements with a VSP
between 3 and 22 shall be used to
determine if a vehicle violates the
remote sensing standards.
Finally, Virginia amended its 2-speed
idle exhaust emissions test standards to
add standards for 1968–1974 model year
vehicles. These vehicles were no longer
subject to regular, biennial emissions
testing under Virginia’s June 2002
regulatory amendments, but are now
affected motor vehicles subject to
roadside remote sensing tests, and, if
necessary, follow-up, 2-speed idle
confirmation testing.
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5. Financial Assistance Provisions
Virginia’s amended regulation
establishes a financial assistance
program to subsidize repair costs of
some vehicles determined to be in
violation of roadside remote sensing
standards. Qualified individuals may
receive up to 50% of the cost of
emission-related repairs or up to 50% of
the waiver amount (after a co-payment
of $100). To qualify, an individual must
be the registered owner of the vehicle
(registered in the program area), have a
household income less than 133% of
federal poverty guidelines, and the
vehicle must have a valid safety
inspection. Only individual vehicle
owners are eligible for assistance—
commercial, non-profit, and government
vehicles are ineligible.
Remote sensing roadside testing has
been expanded to include vehicles
previously not subject to remote
sensing. These affected vehicles include
those newer than model year 1968
(versus the previous coverage of
vehicles 25 model years old, or newer).
6. Changes to Enforcement and
Compliance Procedures
Upon determination by VA DEQ that
a roadside, remote sensing violation
occurred, motorists will be informed in
writing by that department of such
failure. Motor vehicle owners that
receive a notice of violation of roadside,
remote sensing standards will be
required to furnish proof that their
vehicle passed a confirmation test or
received a waiver within 30 days of a
notice of violation of remote sensing
standards. At that time, civil charges
will be assessed (unless the vehicle is
due for its regularly scheduled biennial
emissions test within 3 months of the
date of the measured violation of the
remote sensing standard).
Civil charges assessed for failure to
pass (or receive a waiver) from a
confirmation test are to be based upon
the degree by which the vehicle exceeds
the remote sensing standards. Violations
up to 150% of the applicable standard
will result in a charge of no more than
50% of the cost of a program waiver
(i.e., $450, adjusted annually by the
1990 Consumer Price Index). Violations
over 150% of the applicable remote
sensing standard will result in a civil
charge no more than 100% of a program
waiver.
7. Changes to Regulatory Definitions
Virginia revised several definitions in
9 VAC 5–91–120 in its May 30, 2005
regulatory amendment. The definitions
of the following terms were revised:
affected motor vehicle; light duty truck
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(LDT); light duty truck (LDT1); light
duty truck (LDT2); light duty vehicle;
and operated primarily.
Definitions for the following terms
were added to 9 VAC 5–91–120:
confirmation test; heavy duty gasoline
vehicle (HDGV); high emitter index
(HEI); light duty gasoline vehicle
(LDGV); light duty gasoline truck
(LDGT1); light duty gasoline truck
(LDGT2); and vehicle specific power
(VSP).
IV. General Information Pertaining to
SIP Submittals From the
Commonwealth of Virginia
In 1995, Virginia adopted legislation
that provides, subject to certain
conditions, for an environmental
assessment (audit) ‘‘privilege’’ for
voluntary compliance evaluations
performed by a regulated entity. The
legislation further addresses the relative
burden of proof for parties either
asserting the privilege or seeking
disclosure of documents for which the
privilege is claimed. Virginia’s
legislation also provides, subject to
certain conditions, for a penalty waiver
for violations of environmental laws
when a regulated entity discovers such
violations pursuant to a voluntary
compliance evaluation and voluntarily
discloses such violations to the
Commonwealth and takes prompt and
appropriate measures to remedy the
violations. Virginia’s Voluntary
Environmental Assessment Privilege
law, Va. Code Sec. 10.1–1198, provides
a privilege that protects from disclosure
documents and information about the
content of those documents that are the
product of a voluntary environmental
assessment. The Privilege Law does not
extend to documents or information (1)
that are generated or developed before
the commencement of a voluntary
environmental assessment; (2) that are
prepared independently of the
assessment process; (3) that demonstrate
a clear, imminent and substantial
danger to the public health or
environment; or (4) that are required by
law.
On January 12, 1998, the
Commonwealth of Virginia Office of the
Attorney General provided a legal
opinion that states that the Privilege
law, Va. Code Sec. 10.1–1198, precludes
granting a privilege to documents and
information ‘‘required by law,’’
including documents and information
‘‘required by Federal law to maintain
program delegation, authorization or
approval,’’ since Virginia must ‘‘enforce
Federally authorized environmental
programs in a manner that is no less
stringent than their Federal counterparts
* * *.’’ The opinion concludes that
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‘‘[r]egarding § 10.1–1198, therefore,
documents or other information needed
for civil or criminal enforcement under
one of these programs could not be
privileged because such documents and
information are essential to pursuing
enforcement in a manner required by
Federal law to maintain program
delegation, authorization or approval.’’
Virginia’s Immunity law, Va. Code
Sec. 10.1–1199, provides that ‘‘[t]o the
extent consistent with requirements
imposed by Federal law,’’ any person
making a voluntary disclosure of
information to a state agency regarding
a violation of an environmental statute,
regulation, permit, or administrative
order is granted immunity from
administrative or civil penalty. The
Attorney General’s January 12, 1998
opinion states that the quoted language
renders this statute inapplicable to
enforcement of any federally authorized
programs, since ‘‘no immunity could be
afforded from administrative, civil, or
criminal penalties because granting
such immunity would not be consistent
with Federal law, which is one of the
criteria for immunity.’’
Therefore, EPA has determined that
Virginia’s Privilege and Immunity
statutes will not preclude the
Commonwealth from enforcing its
program consistent with the Federal
requirements. In any event, because
EPA has also determined that a state
audit privilege and immunity law can
affect only state enforcement and cannot
have any impact on Federal
enforcement authorities, EPA may at
any time invoke its authority under the
CAA, including, for example, sections
113, 167, 205, 211 or 213, to enforce the
requirements or prohibitions of the state
plan, independently of any state
enforcement effort. In addition, citizen
enforcement under section 304 of the
CAA is likewise unaffected by this, or
any, state audit privilege or immunity
law.
V. Proposed Action
EPA is proposing to approve
Virginia’s revisions to the enhanced I/M
program SIP for the Northern Virginia
I/M program area. These SIP revisions
were formally submitted to EPA by the
Commonwealth on December 18, 2002,
on April 2, 2003, and on June 18, 2007.
EPA’s review of this material indicates
that the Commonwealth’s revisions to
the prior, SIP-approved I/M program
continue to adhere to Federal
requirements applicable to enhanced
inspection and maintenance programs.
EPA reviewed the Commonwealth’s
revisions to the enhanced I/M program
in accordance with requirements for
inspection and maintenance programs
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in sections 182 and 184 of the Clean Air
Act, and with Federal rule requirements
for I/M programs, codified at 40 CFR
part 51, subpart S.
Many of these changes made by the
Commonwealth’s most recent SIP
revisions have been in effect in
Virginia’s program since October 1,
2002, with some state statutory-driven
changes having taken effect earlier (e.g.,
model year coverage changes) and some
changes phased in according to later
state regulatory deadlines (e.g., separate
provisions for mandatory OBD testing
for gasoline-powered vehicles and
diesel-powered vehicles). The
Commonwealth’s revised roadside
testing program (i.e., remote sensing)
regulatory changes have a state effective
date of June 2005. However, some of the
provisions of these rules had delayed or
phased-in implementation and began
more recently, such as light duty diesel
OBD testing.
These revisions to the
Commonwealth’s I/M program have
already taken effect at the state level,
and implementation of these provisions
has been noncontroversial at the state
level. Virginia has relied upon the
revised I/M program (including the 2002
regulatory changes to the program) as
the basis for its modeling of the Greater
Washington DC Metropolitan area 1hour ozone attainment demonstration
and rate-of-progress plans, and this most
recent iteration of the program (i.e., the
Commonwealth’s May 2005 version of
the I/M regulations) is modeled as a
control measure for Virginia’s
attainment demonstration SIP for the
Washington DC 8-hour ozone
nonattainment plan. The revised I/M
program continues to achieve VOC and
NOX emissions reductions toward
meeting the ozone national ambient air
quality standard. For additional
information concerning EPA’s review of
Virginia’s SIP revisions, please refer to
the Technical Support Document
prepared by EPA in support of this
rulemaking.
EPA is soliciting public comments on
the issues discussed in this document.
These comments will be considered
before taking final action.
VI. Statutory and Executive Order
Reviews
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this proposed
action is not a ‘‘significant regulatory
action’’ and therefore is not subject to
review by the Office of Management and
Budget. For this reason, this action is
also not subject to Executive Order
13211, ‘‘Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355 (May
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22, 2001)). This action merely proposes
to approve state law as meeting Federal
requirements and imposes no additional
requirements beyond those imposed by
state law. Accordingly, the
Administrator certifies that this
proposed rule will not have a significant
economic impact on a substantial
number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.). Because this rule proposes to
approve pre-existing requirements
under state law and does not impose
any additional enforceable duty beyond
that required by state law, it does not
contain any unfunded mandate or
significantly or uniquely affect small
governments, as described in the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4). This proposed rule also
does not have a substantial direct effect
on one or more Indian tribes, on the
relationship between the Federal
Government and Indian tribes, or on the
distribution of power and
responsibilities between the Federal
Government and Indian tribes, as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will
it have substantial direct effects on the
states, on the relationship between the
national government and the states, or
on the distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132 (64 FR 43255,
August 10, 1999), because it merely
proposes to approve a state rule
implementing a Federal requirement,
and does not alter the relationship or
the distribution of power and
responsibilities established in the CAA.
This proposed rule also is not subject to
Executive Order 13045 (62 FR 19885,
April 23, 1997), because it approves a
state rule implementing a Federal
standard.
In reviewing SIP submissions, EPA’s
role is to approve state choices,
provided that they meet the criteria of
the CAA. In this context, in the absence
of a prior existing requirement for the
state to use voluntary consensus
standards (VCS), EPA has no authority
to disapprove a SIP submission for
failure to use VCS. It would thus be
inconsistent with applicable law for
EPA, when it reviews a SIP submission,
to use VCS in place of a SIP submission
that otherwise satisfies the provisions of
the CAA. Thus, the requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not
apply. As required by section 3 of
Executive Order 12988 (61 FR 4729,
February 7, 1996), in issuing this
proposed rule, EPA has taken the
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necessary steps to eliminate drafting
errors and ambiguity, minimize
potential litigation, and provide a clear
legal standard for affected conduct. EPA
has complied with Executive Order
12630 (53 FR 8859, March 15, 1988) by
examining the takings implications of
the rule in accordance with the
‘‘Attorney General’s Supplemental
Guidelines for the Evaluation of Risk
and Avoidance of Unanticipated
Takings’’ issued under the executive
order. This proposed rule to approve
revisions to Virginia’s enhanced I/M
program SIP does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 6, 2008.
William T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. E8–2552 Filed 2–11–08; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2006–0665; FRL–8528–1]
Approval and Promulgation of Air
Quality Implementation Plans; Texas;
Texas Low-Emission Diesel Fuel
Program
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
hsrobinson on PROD1PC76 with PROPOSALS-1
AGENCY:
SUMMARY: EPA is proposing to approve
a revision to the State Implementation
Plan (SIP) for the state of Texas. This
revision makes changes to the Texas
Low-Emission Diesel (TXLED) Fuel
program. The revision establishes a
replicable procedure for the State to
approve Alternative Emission Reduction
Plans (AERPs), extends the date of state
approvals, and brings marine diesel
fuels under the TXLED program. The
revision also refines and clarifies testing
requirements. The changes being
proposed for approval positively
influence the reductions of oxides of
nitrogen (NOX) to be achieved. As a
result and in accordance with section
110(l) of the Clean Air Act, 42 U.S.C.
7410(l), this revision will not interfere
VerDate Aug<31>2005
17:05 Feb 11, 2008
Jkt 214001
with attainment, reasonable further
progress, or any other applicable
requirement of the Clean Air Act.
DATES: Comments must be received on
or before March 13, 2008.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R06–
OAR–2006–0665, by one of the
following methods:
Federal eRulemaking Portal: https://
www.regulations.gov. Follow the on-line
instructions for submitting comments.
• U.S. EPA Region 6 ‘‘Contact Us’’
Web site: https://epa.gov/region6/
r6coment.htm Please click on ‘‘6PD’’
(Multimedia) and select ‘‘Air’’ before
submitting comments.
• E-mail: Mr. Guy Donaldson at
Donaldson.guy@epa.gov. Also cc the
person listed in the FOR FURTHER
INFORMATION CONTACT section below.
• Fax: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD–L), at fax
number 214–665–7263.
• Mail: Mr. Guy Donaldson, Chief,
Air Planning Section (6PD–L),
Environmental Protection Agency, 1445
Ross Avenue, Suite 1200, Dallas, Texas
75202–2733.
• Hand or Courier Delivery: Mr. Guy
Donaldson, Chief, Air Planning Section
(6PD–L), Environmental Protection
Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202–2733. Such
deliveries are accepted only between the
hours of 8 am and 4 pm weekdays
except for legal holidays. Special
arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–R06–OAR–2006–
0665. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through www.regulations.gov
or e-mail. The www.regulations.gov Web
site is an ‘‘anonymous access’’ system,
which means EPA will not know your
identity or contact information unless
you provide it in the body of your
comment. If you send an e-mail
comment directly to EPA without going
through www.regulations.gov your email address will be automatically
captured and included as part of the
comment that is placed in the public
docket and made available on the
Internet. If you submit an electronic
comment, EPA recommends that you
PO 00000
Frm 00018
Fmt 4702
Sfmt 4702
include your name and other contact
information in the body of your
comment and with any disk or CD–ROM
you submit. If EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
EPA may not be able to consider your
comment. Electronic files should avoid
the use of special characters, any form
of encryption, and be free of any defects
or viruses.
Docket: All documents in the docket
are listed in the www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in
www.regulations.gov or in hard copy at
the Air Planning Section (6PD–L),
Environmental Protection Agency, 1445
Ross Avenue, Suite 700, Dallas, Texas
75202–2733. The file will be made
available by appointment for public
inspection in the Region 6 FOIA Review
Room between the hours of 8:30 am and
4:30 pm weekdays except for legal
holidays. Contact the person listed in
the FOR FURTHER INFORMATION CONTACT
paragraph below or Mr. Bill Deese at
(214) 665–7253 to make an
appointment. If possible, please make
the appointment at least two working
days in advance of your visit. There will
be a 15 cents per page fee for making
photocopies of documents. On the day
of the visit, please check in at the EPA
Region 6 reception area at 1445 Ross
Avenue, Suite 700, Dallas, Texas.
The State submittal is also available
for public inspection at the State Air
Agency listed below during official
business hours by appointment:
Texas Commission on Environmental
Quality, Office of Air Quality, 12124
Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Ms.
Sandra Rennie, Air Planning Section
(6PD–L), Environmental Protection
Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202–2733,
telephone (214) 665–7367; fax number
214–665–7263; e-mail address
rennie.sandra@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA. This document concerns control of
air pollution of NOX and VOCs from
mobile sources in 110 counties of East
Texas where the rule applies. This lowemission diesel fuel program applies to
both on-road and non-road vehicles in
the affected area.
E:\FR\FM\12FEP1.SGM
12FEP1
Agencies
[Federal Register Volume 73, Number 29 (Tuesday, February 12, 2008)]
[Proposed Rules]
[Pages 8018-8026]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-2552]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2007-0185; FRL-8528-2]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Incorporation of On-Board Diagnostic Testing and Other
Amendments to the Motor Vehicle Emission Inspection Program for the
Northern Virginia Program Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve three State Implementation Plan
(SIP) revisions submitted by the Commonwealth of Virginia. These
revisions pertain to the Commonwealth's motor vehicle inspection and
maintenance (I/M) program for the Northern Virginia area, which had
previously been SIP-approved by EPA. These revisions incorporate
several changes made by the Commonwealth since EPA last approved the I/
M program as part of the SIP in 2002. The most significant change to
the program is the incorporation of on-board diagnostic computer checks
of 1996 and newer model year vehicles as an element of the emission
inspection process for the Northern Virginia program area. In addition,
Virginia has also made numerous minor changes to the program, including
several changes to test procedures and standards, as well as changes to
its roadside testing regimen. The I/M program helps to
[[Page 8019]]
ensure that highway motor vehicles operate as cleanly as possible, by
requiring vehicles to be periodically tested and by identifying
vehicles having high emissions due to malfunctioning emission control
systems. Such vehicles must then be repaired and retested by their
owners, to the standards set by the Commonwealth's program. Vehicle I/M
programs address nitrogen oxide and volatile organic compound
emissions, both of which are precursors to formation of ground level
ozone pollution, as well as the pollutant carbon monoxide. This action
is being taken under the Clean Air Act (CAA).
DATES: Written comments must be received on or before March 13, 2008.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2007-0185 by one of the following methods:
A. https://www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. E-mail: fernandez.cristina@epa.gov.
C. Mail: EPA-R03-OAR-2007-0185, Cristina Fernandez, Chief, Air
Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2007-0185. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at https://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through https://
www.regulations.gov or e-mail. The https://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through https://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the electronic docket are listed in the
https://www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in https://
www.regulations.gov or in hard copy during normal business hours at the
Air Protection Division, U.S. Environmental Protection Agency, Region
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the
State submittal are available at the Virginia Department of
Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.
FOR FURTHER INFORMATION CONTACT: Brian Rehn, (215) 814-2176, or by e-
mail at rehn.brian@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. What Action Is EPA Proposing To Take?
II. Background
III. Summary of the Commonwealth's SIP Revisions
IV. General Information Pertaining to SIP Submittals From the
Commonwealth of Virginia
V. Proposed Action
VI. Statutory and Executive Order Reviews
I. What Action Is EPA Proposing To Take?
On December 18, 2002, the Commonwealth of Virginia formally
submitted a revision to its prior approved enhanced I/M program SIP for
the Northern Virginia inspection and maintenance program. On April 2,
2003, the Virginia Department of Environmental Quality (VA DEQ)
submitted a SIP technical amendment to the December 18, 2002 SIP
revision. On June 18, 2007, VA DEQ submitted another SIP revision,
which contained updated I/M program regulations made since the time of
the last SIP submittal.
The Northern Virginia I/M program area is comprised of the
following localities: the counties of Arlington, Fairfax, Loudoun,
Prince William, and Stafford; and the cities of Alexandria, Fairfax,
Falls Church, Manassas, and Manassas Park. It is designated by EPA as a
moderate 8-hour ozone nonattainment area. The Commonwealth's revised
program satisfies federal requirements under sections 182 and 184 of
the Clean Air Act applicable to enhanced I/M programs, and EPA is,
therefore, proposing to approve the Commonwealth's revisions to the SIP
approved I/M program.
II. Background
On December 18, 2002, the VA DEQ submitted a formal request to EPA
to revise the Commonwealth's SIP in relation to its motor vehicle
enhanced I/M program. The Commonwealth later submitted two other SIP
revisions related to the enhanced I/M program--on April 2, 2003 and on
June 18, 2007. These latest revisions serve to amend the Commonwealth's
prior, EPA-approved enhanced I/M SIP, which was published as a final
rulemaking action in the September 1, 1999 edition of the Federal
Register (64 FR 47670).
The Commonwealth's December 18, 2002 SIP revision consists of a
revised emissions inspection program regulation published in the June
17, 2002 edition of the Virginia Register of Regulations (Volume 18,
Issue 20), which amended a 1999 version of that regulation. Virginia's
regulation, codified at Title 9, Chapter 91 of the Virginia
Administrative Code (VAC), is entitled ``Regulations for the Control of
Motor Vehicle Emissions in the Northern Virginia Area,'' but is also
referred to here as the Virginia I/M regulation. The Commonwealth
amended its emissions inspection program regulations to reflect
technical changes that Virginia DEQ deemed necessary for continued
program operation since the inception of its enhanced emission
inspection program. Some of these regulatory amendments were made by
Virginia to reflect changing federal requirements and policies that
apply to enhanced emission inspection programs, and some updates were
to address changes made to relevant Virginia law since the inception of
the enhanced I/M program.
The most significant of the changes comprised within the December
18, 2002 SIP revision is the incorporation of on-board diagnostic
checks of 1996 and newer vehicles subject to emissions testing.
Virginia also updated its testing procedures to stay abreast of changes
[[Page 8020]]
needed based upon past operation of the program, and modified
applicability of the program to address the changing dynamic of the
vehicle fleet operating in the program area. Finally, Virginia also
amended its regulation to enhance the Commonwealth's ability to
effectively enforce the emission inspection program.
Virginia later submitted a SIP revision on April 2, 2003, which
makes a technical correction to the emission inspection program
regulation for Northern Virginia. This latter amendment corrects a
technical error in Virginia's prior emission inspection program
regulation concerning emission inspector identification numbers.
Virginia's June 18, 2007 SIP revision contains newer regulatory
amendments made by Virginia since the June 2002 version of the
regulation contained in the December 18, 2002 SIP revision.
The June 18, 2007 SIP revision revised provisions related to on-
road testing of vehicles (i.e., remote sensing) operating primarily in
Northern Virginia to ensure motorist compliance and to supplement State
enforcement activities.
EPA is taking a single rulemaking action today upon the December
18, 2002, the April 2, 2003, and the June 18, 2007 SIP revisions.
III. Summary of the Commonwealth's SIP Revisions
A. Virginia's December 18, 2002 SIP Revision
In 2002, Virginia issued a final rule revising the inspection and
maintenance of motor vehicles. This revised regulation was published in
the June 17, 2002 edition of the Virginia Register of Regulations
(Volume 18, Issue 20), and was submitted to EPA as part of the December
18, 2002 SIP revision. The program was revised to update the
regulations to reflect changes made in the operation of emissions
testing in Virginia since the last major update of the I/M regulation
in 1999. The regulation was also changed to reflect changes in Federal
requirements applicable to I/M programs since the enhanced I/M program
was SIP-approved by EPA. The program was also amended to reflect
changes in Virginia law relevant to the I/M program since the inception
of the enhanced I/M program.
Among the most significant of the Commonwealth's regulatory
amendments was the incorporation and implementation of on-board
diagnostic testing as a mandatory testing element for 1996 and newer
vehicles equipped with second generation on-board diagnostics systems.
Other June 2002 State I/M regulatory amendments reflect changes in the
way the program was being operated since the regulations had previously
been amended in 1999. As was stated earlier, Virginia incorporated
regulatory updates to reflect changes in Federal and State law relevant
to the I/M program. Finally, some changes were made to improve the
Commonwealth's ability to oversee the program and to aid in enforcement
of the program.
Virginia submitted its revised regulation as a formal SIP revision
to EPA on December 18, 2002, with a technical correction amendment
submitted on April 2, 2003. Below is a summary of the most significant
changes to the Commonwealth's vehicle emission inspection program
regulations submitted as part of the December 18, 2002 SIP revision:
1. Incorporates on-board diagnostic testing for OBD-II compliant
vehicles and subjects OBD-II equipped 1997 and newer diesel-powered
vehicles to the program for the first time.
2. Program coverage revised to exempt vehicles 25 years old and
older at the time of testing, in lieu of the previous exemption of 1968
and older model vehicles.
3. Revision of acceleration-simulation mode (ASM) emission
standards and removal of ASM test procedure pre-screening requirements.
4. Tightening of two-speed idle emission test standards, to reflect
advanced technology and related lower emission levels of 1990 and newer
vehicles.
5. Relaxation of roadside remote sensing standards, and greater
flexibility for VA DEQ in use of various pollutants as roadside
screening criteria.
6. Repeal of requirement for evaporative system purge testing.
7. Revision of requirements for Federal and private fleet testing
and reporting, and addition of ``sensitive mission vehicle'' fleet
emission inspection station permit category.
8. Revision of visible emissions standard to include a standard for
diesel-powered vehicles now subject to OBD testing.
9. Elimination of deadlines for waiver limit increases that have
already passed; and requirement for vehicles that received a waiver in
another State to be tested if subject to Virginia's I/M program.
10. Repeal of requirements limiting warranty eligibility for
certain emissions short tests.
11. Modification of penalty schedule for major violations related
to emissions inspections.
12. Revision of a number of definitions to reflect related
regulatory changes, and repeal of others that are no longer needed to
support the Commonwealth's regulations.
A more detailed summary of each of these June 2002 regulatory
changes is detailed below, with additional information provided in the
technical support document prepared by EPA in support of this
rulemaking action.
1. Addition of On-Board Diagnostics Inspections
Subject 1996 and newer subject vehicles equipped with second
generation on-board diagnostics systems (OBD-II) will receive
electronic checks of their on-board diagnostics systems in lieu of
other emissions tests. An OBD check consists of a visual check of the
dashboard indicators and an electronic examination of the OBD computer
for potential stored fault information. OBD-equipped 1997 and newer
light duty diesel vehicles are also required to be OBD tested.
Virginia's I/M regulation established a start date of October 2002
to commence mandatory OBD checks of gasoline-powered vehicles under its
I/M program, with the option to delay testing if the VA DEQ determined
its OBD test equipment was unavailable or not ready. After the
occurrence of such an equipment-related delay, Virginia began mandatory
OBD testing on gasoline-powered vehicles in November 2005. For the
first time, Virginia's June 2002 regulation requires the addition of
mandatory OBD checks for light duty diesel-powered vehicles, to begin
no later than October 2006. However, in practice VA DEQ delayed diesel-
powered OBD checks and instead began diesel OBD checks as part of the
I/M program in May 2007 (for vehicles with registrations expiring July
2007).
For most vehicles subject to OBD checks under Virginia's program,
an OBD check will be performed in lieu of tailpipe testing (i.e., ASM
or 2-speed idle tests). However, VA DEQ may also perform exhaust tests
on a limited basis, in addition to an OBD check, for quality control or
program evaluation purposes. Some vehicles that are known to have OBD
system problems may be exempted by VA DEQ from an OBD check and instead
be given tailpipe tests. Vehicles whose OBD system is determined to be
``not ready'' to be checked, as defined by Virginia regulation, will be
rejected from testing.
[[Page 8021]]
2. Model Year Coverage Revised to Exempt 25-Year-Old and Older Vehicles
From Testing
Virginia revised its I/M program model year coverage, moving to a
rolling exemption for vehicles 25 years and older at the time of
inspection, in place of its previous age-based exemption for 1968 and
older vehicles. Virginia statute required this change, and DEQ has
implemented this practice since July 2000. The change results in a
decrease in the number of cars being tested under the I/M program, as
each year another model year is exempted. In 2004, the last year
Virginia provided data, VA DEQ estimated this model year coverage
change would result in the testing of approximately 19,400 fewer
vehicles. Virginia estimates that this will result in an increase of
volatile organic compound (VOC) emissions of approximately 0.55 tons
per day in 2002, or about 3.5% of the total VOC emissions reductions
associated with the I/M program. No nitrogen oxide (NOX)
penalty has been associated with this change, as the vehicles affected
would have been tested with idle testing (in the 2002 and 2005
evaluation timeframes for which I/M programs were required to be
evaluated under the Federal I/M rule). Virginia did not calculate
carbon monoxide (CO) impacts from this change, as the Northern Virginia
region is classified as CO attainment, and a CO emissions inventory for
this timeframe was unavailable. Virginia has modeled the 25-year
rolling exemption in the attainment demonstration and reasonable
further progress plans for the Metropolitan Washington DC 1-hr ozone
nonattainment area.
3. Revision of ASM Test Standards/Removal of ASM Test Procedure Pre-
Screening Requirements
Virginia's June 2002 I/M regulation revised the testing standards,
or cutpoints, for determining whether vehicles pass or fail Virginia's
2-mode ASM 5015/2525 tailpipe emissions test. Virginia had previously
required that start-up standards were to be used for one year after
program implementation, per EPA's ASM technical guidance document
entitled ``Acceleration Simulation Mode Test Procedures, Emissions
Standards, Quality Control Requirements, and Equipment Specifications''
(draft dated July 2000, final dated July 2004). Virginia's 2002 revised
rule applies final ASM standards, unless VA DEQ determines that phase-
in standards or interim standards (i.e., less stringent than final, but
more stringent than phase-in standards) should be used. Such a
determination would be based upon results of emissions inspections from
ASM tests performed under the program and after consultation with
vehicle manufacturers, EPA, and appropriate research organizations.
Virginia also removed ASM test standards for those model year vehicles
no longer subject to testing, due to its age-based exemption for
vehicles older than 25 years.
4. Revision of 2-Speed Idle Test Standards
Under the June 2002 I/M rule revision, Virginia enacted more
stringent emissions test standards, or cutpoints, for 2-speed idle
tailpipe emissions testing conducted on some 1990 and newer vehicles.
VA DEQ determined that more stringent 2-speed idle testing was
justified, based upon an analysis of failure rates for these vehicles
subject to 2-speed idle testing and also by reviewing standards and
fail rates from other programs that use 2-speed idle testing.
Previously, 1990 and newer vehicles having advanced technology needed
only to meet standards applicable to 1981 and older vehicles. Some of
these newer, advanced technology vehicles with known faults were able
to pass the test under the previous, less stringent standard for 1981
and older vehicles. The revised 2-speed idle cutpoints are 110 parts
per million (ppm) of hydrocarbon (HC) and 0.75% carbon monoxide (CO),
where they had been 220 ppm HC and 1.2% CO. Virginia has been testing
under these more stringent cutpoints since October 2002. As part of the
SIP, VA DEQ estimated the number of additional vehicles that would fail
with the more stringent standards in place. For 2004, which was the
latest year for which Virginia provided an estimate, about 800
additional vehicles were expected to fail than would have if the less
stringent standards had remained in place.
5. Relaxation of Roadside Remote Sensing Standards and Flexibility for
VA DEQ To Use Various Pollutants for Roadside Screening Criteria
Roadside remote sensing program requirements were revised by
Virginia in its June 2002 revised I/M program rule. Remote sensing is
used to ensure motorist compliance with the program. Remote sensing
reads a vehicle as it passes by a roadside sensor, after which the
vehicle's emissions are checked against standards set by the state. In
the case of Virginia's remote sensing program, if the vehicle is
checked twice in a 90-day period and has emissions beyond the
standards, the owner may be required to undergo an out-of-cycle
emissions test. Virginia relaxed its remote sensing emissions standards
as part of the June 2002 I/M rule revision to avoid the potential for
false failures of the remote sensing test (i.e., to avoid failing
vehicles using remote sensing that would otherwise pass regular
tailpipe emissions or OBD checks). Putting aside differences between
Virginia's regular tailpipe tests versus a remote sensing test, there
is a level of uncertainty when comparing vehicles in a station tailpipe
testing environment versus roadside remote sensing. Virginia revised
its remote sensing test standards to ensure an adequate margin of error
to avoid subjecting motorists to unnecessary out-of-cycle emissions
tests. Virginia also revised its remote sensing test criteria to allow
VA DEQ to use HC or CO, or a combination of both, as criteria for
remote sensing pass or fail.
At the time of the December 2002 SIP revision, Virginia had not yet
performed mandatory remote sensing testing as part of its I/M program.
Virginia subsequently conducted a pilot remote sensing program to
evaluate potential problems with remote sensing prior to use of remote
sensing as a mandatory element of the I/M program, and as a result
subsequently revised its remote sensing program. Those changes, as well
as others related to remote sensing as a tool to ensure ongoing
motorist compliance were submitted as part of the June 18, 2007 SIP
revision, and are discussed below, in the portion of this rulemaking
related to that SIP submittal. EPA is taking action on both the
December 18, 2002 SIP revision, and the later, June 18, 2007 SIP
revisions, which updated the December 18, 2002 provisions. Where the
same regulatory provisions are included in both SIP submittals, EPA is
proposing to take action on the most recent version of the regulatory
provisions.
6. Revision of Requirements for Evaporative System Pressure and Purge
Testing
As part of its June 2002 regulatory revisions, Virginia removed the
requirement to conduct evaporative system purge testing from the I/M
program. Purge testing was a means to measure the instantaneous purge
flow from the vehicle's evaporative canister to the engine's intake
manifold, in order to ensure proper operation of the evaporative
system. The purge test was to have been performed in conjunction with
ASM testing beginning in 1999. In a November 5, 1996 policy memo, EPA
determined purge testing to be intrusive and potentially damaging, and
therefore
[[Page 8022]]
did not enforce the implementation of this requirement. A suitable
alternative test has never materialized, and the latest version of
EPA's emission factor model, MOBILE6, has eliminated any HC emissions
benefit associated with purge testing. Virginia never implemented purge
testing as part of its I/M program, and EPA has never acted to enforce
that SIP provision of Virginia's prior approved SIP. Given this
reality, Virginia removed purge testing as an element of the I/M
program in its June 2002 revised rule.
Implementation of evaporative pressure testing has been left to the
discretion of VA DEQ. The evaporative pressure test is a test to
measure levels of evaporated fuel between the fuel tank and the engine
to ensure the system is not compromised and releasing these emissions
to the ambient air. Virginia's prior approved SIP required evaporative
emissions testing to have begun in 1998, but such testing was delayed
due to technical limitations of the pressure test. EPA acknowledged
difficulties with evaporative canister-based pressure testing in a
November 5, 1996 policy memo (as well as discussing a potential fill
pipe-based alternative in conjunction with gas cap testing). Virginia
revised its I/M rule in June 2002 to indefinitely delay implementation
of pressure testing as an element of Virginia's I/M program, to a date
to be determined the director of the VA DEQ (with at least one year
notification to station owners in the event the test is to be
implemented).
It should be noted that modern OBD systems have sensors to detect
leaks in the evaporative system, and to monitor the purge system, so
1996 and newer vehicles will be have their evaporative systems
monitored via an OBD check as part of the program. The MOBILE model now
reflects emissions benefits from this check of newer vehicles.
7. Revision of Requirements for Federal and Private Fleet Testing and
Reporting
Virginia made several changes with respect to the testing of
federal fleet vehicles in its December 2002 SIP revision. Under the
prior approved SIP, federal fleets had been required to submit
compliance reports to VA DEQ, while private fleets were not subject to
compliance reporting. Virginia revised its I/M program rule in June
2002 to rescind the requirement that administrators of federal fleets
submit reports to VA DEQ to demonstrate fleet compliance, thus treating
federal and private fleets equally. At the same time, Virginia repealed
a related requirement for federal fleets to remit a $2 annual fee for
each vehicle not registered with the Virginia Department of Motor
Vehicles.
Virginia also added ``sensitive mission vehicle emissions fleet
inspection station'' to the list of qualified applicants who can apply
to VA DEQ for inspection station permits. This change allows agencies
such as the Central Intelligence Agency and Federal Bureau of
Investigation to establish inspection stations, in order to avoid
potential exposure of their sensitive mission vehicles (as defined
under Virginia's I/M rule) when undergoing emissions testing.
8. Revision of Visible Emissions Standard To Include a Standard for
Diesel-Powered Vehicles Subject to OBD Testing
Virginia added a standard for visible air pollutant emissions for
diesel-powered vehicles that are now subject to OBD testing as part of
Virginia's I/M program in its June 2002 rule revision. The standard
limits emission of visible air pollutants from the tailpipe of a
subject diesel vehicle to a density of no more than 20% opacity for
longer than 10 consecutive seconds (after the engine reaches operating
temperature), per Reference Method 9.
9. Elimination of Deadlines for Waiver Limit Increases That Have
Already Passed and Established Criteria for Issuance by VA DEQ of
Temporary Waiver If Necessary Repair Parts Are Not Available
Repair waivers are a form of I/M program compliance that allow the
motorist to comply with an I/M program without meeting the applicable
test standard. A waiver may be issued if the vehicle fails an
inspection, undergoes qualifying repairs up to a program-designated
repair cost waiver limit, and then fails its retest. EPA rules allowed
programs to phase-in waiver limits to a statutory limit of $450,
adjusted by the Consumer Price Index (CPI). Virginia removed phase-in
deadlines for full waiver cost compliance under the June 2002 I/M rule
revision, instead stating that beginning January 2003 waiver
eligibility shall be $450 adjusted to reflect the increase in the CPI.
Virginia amended its June 2002 I/M rule to include criteria for
issuance of a temporary waiver due to unavailability of components
necessary to complete repairs to pass the test or to qualify for a
waiver. To obtain a temporary waiver, the motorist must provide a
signed statement from an owner of a parts supplier stating that needed
parts are unavailable, including a description and part number(s) of
said parts.
10. Repeal of Requirements Limiting Warranty Eligibility for Certain
Emissions Short Tests
Virginia repealed its short test standards for warranty eligibility
(9 VAC 5-91-470) in its June 2002 rule revision. In the past, this
language had served to ensure that short test emissions results did not
exceed 220 ppm of HC and 1.2% CO. However, with the June 2002 revision
of Virginia's 2-speed idle test standards and the change in I/M program
model year coverage to vehicles 25 years and newer, there are no longer
any vehicles subject to I/M (and which are eligible for federal
emissions warranty coverage) for which test cutpoints exceed the
threshold of 220 ppm HC and 1.2% CO. Therefore, the warranty
eligibility provisions of 9 VAC 5-91-470 are no longer relevant, and
have thus been repealed by Virginia.
11. Modification of Penalty Schedule for Major Violations Related to
Emissions Inspections
In their June 2002 I/M rule revision, Virginia revised their list
of regulatory provisions (9 VAC 5-91-620) of which a violation
constitutes a major violation. Major violations are defined by Virginia
as the most serious offenses resulting from unacceptable performance in
conducting emissions inspections that would directly affect the
credibility, integrity, and emissions reductions associated with the I/
M program. Virginia indicated in the SIP revision that this revised
list of provisions (of which a violation constitutes a major violation)
is a reflection of the additional flexibility incorporated in the
revised regulation for emission inspection procedures.
12. Revision of a Number of Definitions To Reflect Related Regulatory
Changes, and Repeal Others That Are No Longer Needed To Support the
Commonwealth's Regulations
Virginia revised a number of its definitions of terms in 9 VAC 5-
91-20, and repealed others altogether, in support of other changes made
to the Commonwealth's I/M rule in June 2002. Some terms were also
revised for improved clarity, while others were revised to correct
cross-references to other revised regulatory sections.
Terms that were revised include: access code; actual gross weight;
affected motor vehicle; air system; alternative fuel; certified
enhanced analyzer system; chargeable inspection; curb idle; dedicated
alternative fuel vehicle; emissions control systems; enhanced emissions
inspection
[[Page 8023]]
program; evaporative system pressure test; flexible fuel vehicle;
formal hearing; fuel filler cap pressure test; gross vehicle weight
rating (GVWR); informal fact finding; inspection fee; motor vehicle;
motor vehicle inspection report; on-board diagnostic system (OBD
system); on-board diagnostic system test (OBD system test); on-board
diagnostic vehicle (OBD vehicle); operated primarily; reinspection or
retest; remote sensing; thermostatic air cleaner; two-speed idle test
(TSI); and vehicle specific power (VSP).
Terms that were repealed include: aborted test; alternative
evaporative system purge and pressure test; emissions repair facility;
emissions repair technician; evaporative system purge test; federal
employee; federal facility; gross weight; inspector access code;
inspector number; original equipment manufacturer (OEM); state
implementation plan; thermometer, certified; and Tier 1.
Terms that were newly added by Virginia include: aborted test;
emissions control equipment; identification number; and implementation
plan (replacing state implementation plan, which has been removed).
In addition to the items detailed above, Virginia made several
other changes to the I/M rule as part of the December 18, 2002 SIP
revision that are organizational in nature, or are otherwise minor in
importance, and are not discussed in detail in this action. Please
refer to the technical support document prepared in support of this
action, or to this version of the Commonwealth's I/M regulation, which
was published in the Virginia Register of Regulations on June 17, 2002
and can be found in the docket for this action.
B. Virginia's June 18, 2007 SIP Revision
Virginia again revised its I/M program regulations codified in
Title 9, Chapter 91 of the Virginia Code in a final rule published in
the Virginia Register of Regulations on May 30, 2005 (Volume 21, Issue
19). Virginia submitted this latest version of its I/M regulation (9
VAC 5-91) as part of a June 18, 2007 SIP revision submitted to EPA. The
submitted portions of this more recent version of the Commonwealth's I/
M regulation supersedes those portions of 9 VAC 5-91 published earlier
that were submitted to EPA in the prior SIP submittal (i.e., the
December 18, 2002 SIP revision). Where Virginia has submitted the same
regulatory provisions in separate SIP revisions, EPA is proposing to
act upon the later version of the regulation.
The Commonwealth's May 2005 regulation serves to make a number of
changes to Virginia's roadside testing program (i.e., remote sensing)
provisions of the regulation. The remote sensing program is a roadside
test to ensure that vehicles primarily operated in the I/M program area
do not grossly exceed emissions limits set by the I/M program. The
program serves both to identify high emitting vehicles subject to
regular I/M checks, and to monitor vehicles that are not subject to
traditional biennial emissions inspections in Virginia. Roadside
testing can serve to identify subject vehicles that have become high
emitters since their last regular biennial emission inspection, or that
may have been high emitters at the time of their most recent inspection
but passed that test in error. Roadside remote sensing observations may
require motorists with vehicles identified as high emitters by roadside
testing to undergo an additional ``off cycle'' I/M inspection, or in
the alternative to pay a civil penalty.
In general, the Commonwealth amended the regulation to reflect new
remote sensing emissions standards, and the criteria for conducting
random, roadside ``off-cycle'' testing of motor vehicle emissions, as
well as protocols for testing and procedures to notify owners of test
results.
The Commonwealth's regulatory changes relate primarily to:
1. Changes in remote sensing model year applicability, relating to
vehicles subject to remote sensing;
2. Protocols for determination of gross polluters and clean car
screening;
3. Changes to remote sensing test procedures;
4. Changes to remote sensing test standards;
5. Financial assistance provisions;
6. Changes in enforcement and compliance procedures; and
7. Changes to regulatory definitions.
A summary of these changes made by Virginia under the May 2005
final rule are detailed below:
1. Changes in Remote Sensing Model Year Applicability
Virginia amended its regulation in order to comply with changes to
the Code of Virginia. Model year coverage, with respect to remote
sensing under 9 VAC 5-91-180, was expanded to include vehicles of model
year 1968 and newer. Previously, applicability for remote sensing was
limited to those ``affected vehicles'' subject to I/M testing (i.e.,
the 25 most recent model years). The Commonwealth also revised their
definition of ``operate primarily'' (for purposes of remote sensing) to
include a vehicle observed by roadside remote sensing equipment at
least three times in a two-month period (with no less than 30 days
between the first and last readings). Vehicles exceeding the standards
twice in any 120-day period (as opposed to the Commonwealth's previous
requirement for 90-day observation period) will be determined to have
violated the standards, and will require a confirmation test (ASM or
OBD test) at an emission inspection station.
2. Protocols for Determination of High Emitting Vehicles and Clean
Screening
Virginia has amended is protocols for determining whether a vehicle
is a gross polluter. Virginia's ``high emitter index'' is a means of
categorizing probable emission failure rates of engine families. The
index is determined by calculating the historical emissions inspection
failure rate (by vehicle model year, make, model, and engine size) to
the historical emissions inspection failure rate of all the engine
families in that same group. Failure rates are based on the most recent
full year of emissions inspection test data. Vehicles with a high
emitter index of greater than 75 are deemed high emitters.
Beginning January 1, 2005, motor vehicles that exceed the
Virginia's remote sensing emissions standards on two separate days in
any 120-day period shall be considered to have violated the emissions
standards. In addition, the department may use the high emitter index
as a screening requirement. Beginning July 1, 2005, based on analysis
of remote sensing failure rates and confirmation test results, the VA
DEQ may determine than an affected vehicle is a high emitter if the
vehicle exceeds remote sensing standards a single time and has a ``high
emitter index'' of greater than 75.
Beginning July 1, 2005, clean screening will be used by Virginia to
identify affected vehicles eligible for an exemption from their next
scheduled emissions test. Up to five percent of the total vehicles
measured by on-road testing (i.e., remote sensing) during any 30-day
period may be identified as ``clean screen vehicles''. At the
discretion of VA DEQ, vehicles identified as such may receive a
``pass'' for their next scheduled emissions test, without undergoing a
regular, biennial emissions inspection.
3. Changes to Remote Sensing Test Procedures
Virginia has amended its exhaust emissions standards for its remote
sensing program. Beginning July 1, 2005, motor vehicles determined to
exceed roadside remote sensing standards after two or more
[[Page 8024]]
measurements in any 120-day period, shall be considered to have
violated emissions standards and shall be subject to an off-cycle,
confirmation test. A vehicle exceeding the remote sensing standards a
single time (which is also determined by the VA DEQ to have a ``high
emitter index'' greater than 75) will be subject to an off-cycle,
confirmation test.
Vehicles subject to confirmation testing may be subject to the
applicable emissions test for their vehicle, and vehicles 1996 and
newer may be subject to exhaust testing, in addition to an OBD system
test. A failed confirmation inspection (ordered by VA DEQ due to a
roadside, remote sensing test failure) will be a chargeable inspection,
while a passing confirmation test will not result in a test fee.
4. Changes to Remote Sensing Test Standards
Virginia has revised its remote sensing exhaust emission standards
to establish separate standards for light-duty gasoline vehicles (i.e.,
passenger cars), light-duty gasoline trucks, and heavy-duty gasoline
vehicles. Additionally, Virginia has established standards that apply
in the case where two or more on-road, remote sensing measurements are
gathered for an applicable vehicle over a 120-day period. Separate
standards apply in the case of a single on-road measurement, where a
vehicle is also determined by VA DEQ to have a ``high emitter index''
of 75 or more.
Virginia has for the first time established nitric oxide (NO)
remote sensing standards, in addition to existing standards for HC and
CO.
All remote sensing measurements are to be measured based upon
vehicle specific power (VSP), which is a means of utilizing vehicle
speed, drag coefficient, tire rolling resistance and roadway grade to
characterize the load under which a vehicle is operating at the time a
remote measuring measurement is taken. Only valid remote sensor
measurements with a VSP between 3 and 22 shall be used to determine if
a vehicle violates the remote sensing standards.
Finally, Virginia amended its 2-speed idle exhaust emissions test
standards to add standards for 1968-1974 model year vehicles. These
vehicles were no longer subject to regular, biennial emissions testing
under Virginia's June 2002 regulatory amendments, but are now affected
motor vehicles subject to roadside remote sensing tests, and, if
necessary, follow-up, 2-speed idle confirmation testing.
5. Financial Assistance Provisions
Virginia's amended regulation establishes a financial assistance
program to subsidize repair costs of some vehicles determined to be in
violation of roadside remote sensing standards. Qualified individuals
may receive up to 50% of the cost of emission-related repairs or up to
50% of the waiver amount (after a co-payment of $100). To qualify, an
individual must be the registered owner of the vehicle (registered in
the program area), have a household income less than 133% of federal
poverty guidelines, and the vehicle must have a valid safety
inspection. Only individual vehicle owners are eligible for
assistance--commercial, non-profit, and government vehicles are
ineligible.
Remote sensing roadside testing has been expanded to include
vehicles previously not subject to remote sensing. These affected
vehicles include those newer than model year 1968 (versus the previous
coverage of vehicles 25 model years old, or newer).
6. Changes to Enforcement and Compliance Procedures
Upon determination by VA DEQ that a roadside, remote sensing
violation occurred, motorists will be informed in writing by that
department of such failure. Motor vehicle owners that receive a notice
of violation of roadside, remote sensing standards will be required to
furnish proof that their vehicle passed a confirmation test or received
a waiver within 30 days of a notice of violation of remote sensing
standards. At that time, civil charges will be assessed (unless the
vehicle is due for its regularly scheduled biennial emissions test
within 3 months of the date of the measured violation of the remote
sensing standard).
Civil charges assessed for failure to pass (or receive a waiver)
from a confirmation test are to be based upon the degree by which the
vehicle exceeds the remote sensing standards. Violations up to 150% of
the applicable standard will result in a charge of no more than 50% of
the cost of a program waiver (i.e., $450, adjusted annually by the 1990
Consumer Price Index). Violations over 150% of the applicable remote
sensing standard will result in a civil charge no more than 100% of a
program waiver.
7. Changes to Regulatory Definitions
Virginia revised several definitions in 9 VAC 5-91-120 in its May
30, 2005 regulatory amendment. The definitions of the following terms
were revised: affected motor vehicle; light duty truck (LDT); light
duty truck (LDT1); light duty truck (LDT2); light duty vehicle; and
operated primarily.
Definitions for the following terms were added to 9 VAC 5-91-120:
confirmation test; heavy duty gasoline vehicle (HDGV); high emitter
index (HEI); light duty gasoline vehicle (LDGV); light duty gasoline
truck (LDGT1); light duty gasoline truck (LDGT2); and vehicle specific
power (VSP).
IV. General Information Pertaining to SIP Submittals From the
Commonwealth of Virginia
In 1995, Virginia adopted legislation that provides, subject to
certain conditions, for an environmental assessment (audit)
``privilege'' for voluntary compliance evaluations performed by a
regulated entity. The legislation further addresses the relative burden
of proof for parties either asserting the privilege or seeking
disclosure of documents for which the privilege is claimed. Virginia's
legislation also provides, subject to certain conditions, for a penalty
waiver for violations of environmental laws when a regulated entity
discovers such violations pursuant to a voluntary compliance evaluation
and voluntarily discloses such violations to the Commonwealth and takes
prompt and appropriate measures to remedy the violations. Virginia's
Voluntary Environmental Assessment Privilege law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and
information about the content of those documents that are the product
of a voluntary environmental assessment. The Privilege Law does not
extend to documents or information (1) that are generated or developed
before the commencement of a voluntary environmental assessment; (2)
that are prepared independently of the assessment process; (3) that
demonstrate a clear, imminent and substantial danger to the public
health or environment; or (4) that are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the
Attorney General provided a legal opinion that states that the
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege
to documents and information ``required by law,'' including documents
and information ``required by Federal law to maintain program
delegation, authorization or approval,'' since Virginia must ``enforce
Federally authorized environmental programs in a manner that is no less
stringent than their Federal counterparts * * *.'' The opinion
concludes that
[[Page 8025]]
``[r]egarding Sec. 10.1-1198, therefore, documents or other
information needed for civil or criminal enforcement under one of these
programs could not be privileged because such documents and information
are essential to pursuing enforcement in a manner required by Federal
law to maintain program delegation, authorization or approval.''
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that
``[t]o the extent consistent with requirements imposed by Federal
law,'' any person making a voluntary disclosure of information to a
state agency regarding a violation of an environmental statute,
regulation, permit, or administrative order is granted immunity from
administrative or civil penalty. The Attorney General's January 12,
1998 opinion states that the quoted language renders this statute
inapplicable to enforcement of any federally authorized programs, since
``no immunity could be afforded from administrative, civil, or criminal
penalties because granting such immunity would not be consistent with
Federal law, which is one of the criteria for immunity.''
Therefore, EPA has determined that Virginia's Privilege and
Immunity statutes will not preclude the Commonwealth from enforcing its
program consistent with the Federal requirements. In any event, because
EPA has also determined that a state audit privilege and immunity law
can affect only state enforcement and cannot have any impact on Federal
enforcement authorities, EPA may at any time invoke its authority under
the CAA, including, for example, sections 113, 167, 205, 211 or 213, to
enforce the requirements or prohibitions of the state plan,
independently of any state enforcement effort. In addition, citizen
enforcement under section 304 of the CAA is likewise unaffected by
this, or any, state audit privilege or immunity law.
V. Proposed Action
EPA is proposing to approve Virginia's revisions to the enhanced I/
M program SIP for the Northern Virginia I/M program area. These SIP
revisions were formally submitted to EPA by the Commonwealth on
December 18, 2002, on April 2, 2003, and on June 18, 2007. EPA's review
of this material indicates that the Commonwealth's revisions to the
prior, SIP-approved I/M program continue to adhere to Federal
requirements applicable to enhanced inspection and maintenance
programs.
EPA reviewed the Commonwealth's revisions to the enhanced I/M
program in accordance with requirements for inspection and maintenance
programs in sections 182 and 184 of the Clean Air Act, and with Federal
rule requirements for I/M programs, codified at 40 CFR part 51, subpart
S.
Many of these changes made by the Commonwealth's most recent SIP
revisions have been in effect in Virginia's program since October 1,
2002, with some state statutory-driven changes having taken effect
earlier (e.g., model year coverage changes) and some changes phased in
according to later state regulatory deadlines (e.g., separate
provisions for mandatory OBD testing for gasoline-powered vehicles and
diesel-powered vehicles). The Commonwealth's revised roadside testing
program (i.e., remote sensing) regulatory changes have a state
effective date of June 2005. However, some of the provisions of these
rules had delayed or phased-in implementation and began more recently,
such as light duty diesel OBD testing.
These revisions to the Commonwealth's I/M program have already
taken effect at the state level, and implementation of these provisions
has been noncontroversial at the state level. Virginia has relied upon
the revised I/M program (including the 2002 regulatory changes to the
program) as the basis for its modeling of the Greater Washington DC
Metropolitan area 1-hour ozone attainment demonstration and rate-of-
progress plans, and this most recent iteration of the program (i.e.,
the Commonwealth's May 2005 version of the I/M regulations) is modeled
as a control measure for Virginia's attainment demonstration SIP for
the Washington DC 8-hour ozone nonattainment plan. The revised I/M
program continues to achieve VOC and NOX emissions
reductions toward meeting the ozone national ambient air quality
standard. For additional information concerning EPA's review of
Virginia's SIP revisions, please refer to the Technical Support
Document prepared by EPA in support of this rulemaking.
EPA is soliciting public comments on the issues discussed in this
document. These comments will be considered before taking final action.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this action is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)).
This action merely proposes to approve state law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that
this proposed rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any
additional enforceable duty beyond that required by state law, it does
not contain any unfunded mandate or significantly or uniquely affect
small governments, as described in the Unfunded Mandates Reform Act of
1995 (Pub. L. 104-4). This proposed rule also does not have a
substantial direct effect on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it have substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it
merely proposes to approve a state rule implementing a Federal
requirement, and does not alter the relationship or the distribution of
power and responsibilities established in the CAA. This proposed rule
also is not subject to Executive Order 13045 (62 FR 19885, April 23,
1997), because it approves a state rule implementing a Federal
standard.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. In this
context, in the absence of a prior existing requirement for the state
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the CAA. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. As required by section 3 of
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this
proposed rule, EPA has taken the
[[Page 8026]]
necessary steps to eliminate drafting errors and ambiguity, minimize
potential litigation, and provide a clear legal standard for affected
conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March
15, 1988) by examining the takings implications of the rule in
accordance with the ``Attorney General's Supplemental Guidelines for
the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued
under the executive order. This proposed rule to approve revisions to
Virginia's enhanced I/M program SIP does not impose an information
collection burden under the provisions of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 6, 2008.
William T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. E8-2552 Filed 2-11-08; 8:45 am]
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