

[Federal Register: February 12, 2008 (Volume 73, Number 29)]
[Proposed Rules]               
[Page 8018-8026]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12fe08-4]                         

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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.

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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. http://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 http://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 http://www.regulations.gov or e-mail. The http://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 http://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 
http://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 http://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]

BILLING CODE 6560-50-P
