	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

[EPA-R03-OAR-2007-0185; FRL-       ]

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 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 [insert date 30
days from date of publication].  

ADDRESSES:  Submit your comments, identified by Docket ID Number
EPA-R03-OAR-

2007-0185 by one of the following methods:

A.    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 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 website 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 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
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 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

What Action is EPA proposing to take?

Background

 Summary of the Commonwealth’s SIP Revisions

General Information Pertaining to SIP Submittals from the Commonwealth
of Virginia

Proposed Action

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 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 onboard 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.	Incorporation of 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.   

Revision of acceleration-simulation mode (ASM) emission standards and
removal of ASM test procedure pre-screening requirements. 

Tightening of two-speed idle emission test standards, to reflect
advanced technology and related lower emission levels of 1990 and newer
vehicles.

Relaxation of roadside remote sensing standards, and greater flexibility
for VA DEQ in use of various pollutants as roadside screening criteria.

Repeal of requirement for evaporative system purge testing.

Revision of requirements for federal and private fleet testing and
reporting, and add “sensitive mission vehicle” fleet emission
inspection station permit category.

Revision of visible emissions standard to include a standard for
diesel-powered vehicles now subject to OBD testing.

Elimination of deadlines for waiver limit increases that have already
passed; and required vehicles that received a waiver in another state to
be tested if subject to Virginia’s I/M program.

Repeal of requirements limiting warranty eligibility for certain
emissions short tests.

  Modification of penalty schedule for major violations related to
emissions inspections.

  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.

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 (OBDII) will receive electronic checks of
their on-board diagnostics system 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.  

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 two-speed idle tailpipe
emissions testing conducted on some 1990 and newer vehicles.  VA DEQ
determined that more stringent two-speed idle testing was justified,
based upon an analysis of failure rates for these vehicles subject to
two-speed idle testing and also by reviewing standards and fail rates
from other programs that use two-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 two-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 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 other 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
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 procedure 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 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, two-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 fifty percent of the cost of emission-related repairs
or up to fifty percent 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 twenty-five 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 (HGDV); 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 ([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
have been reviewed 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 effective 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 (Public Law 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 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.

__February 6, 2008_______           			____________/s/________________

Dated:                                             		         	William
T. Wisniewski, Acting 

                                                                 	
Regional Administrator,

                                                                 	
Region III.

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