Air Plan Approval; Delaware; Motor Vehicle Inspection and Maintenance Program

SUPPLEMENTARY INFORMATION:

I. Background

On March 13, 2023, DNREC submitted to EPA three revisions to the Delaware SIP pertaining to Delaware's enhanced I/M program applicable to the Delaware portion of the Philadelphia-Wilmington-Atlantic City nonattainment area for the 2015 ozone NAAQS ( i.e., Kent and New Castle Counties) and the SIP-strengthening (akin to basic) I/M program applicable to Sussex County. On August 15, 2024 (89 FR 66295), EPA published a notice of proposed rulemaking (NPRM) proposing to approve these three revisions to the Delaware SIP. In the NPRM, EPA proposed to approve state amendments to the prior SIP-approved versions of 7 DE Admin. Code 31, now recodified at 7 DE Admin Code 1131 (pertaining to the enhanced I/M program in Kent and New Castle Counties) and to 7 DE Code 1126 (pertaining to Sussex County), as well as Delaware's Plan for Implementation (PFI) for 7 DE Admin Code 1126 and 7 DE Admin. Code 1131. The PFI contains additional supporting materials for inclusion into the SIP that is related to I/M program implementation, enforcement, and other non-regulatory program requirements to satisfy Federal I/M requirements set forth at 40 CFR part 51, subpart S not addressed by the revised Regulations 1126 and 1131.

These SIP revisions apply to both the federally mandated enhanced I/M program applicable to Kent and New Castle Counties that comprise Delaware's portion of the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE ozone nonattainment area, and also to the Sussex County program, where I/M is not federally required but where Delaware has a prior approved, SIP strengthening I/M program (similar in design to a basic I/M program, as defined by the Clean Air Act and EPA's I/M program rules). The SIP revisions to Delaware's I/M program being approved herein include: a change in program coverage to expand exemptions for new vehicles to seven years (from five years); the addition of vehicle on-board diagnostic (OBD) testing requirements in the Sussex County program; expanded vehicle coverage to include vehicles weighing between 8,501 to 14,000 pounds gross vehicle weight rating (GVWR), for those vehicles model year 2008-and-newer; harmonization of I/M test requirements applicable to older vehicles to include curb idle exhaust and gas cap pressure tests for vehicles 1995-and-older (replacing existing two-speed idle tests on those vehicles previously performed in Kent and New Castle Counties); the phase-in of increased minimum repair cost thresholds for obtaining a repair waiver in Sussex County; and the addition of a statewide prohibition on tampering-related repairs in qualifying for an emissions repair waiver.

II. Summary of Delaware's March 2023 SIP Revisions and EPA's Analysis

A. Overview of Delaware's March 13, 2023 SIP Revisions

Delaware submitted three SIP revisions on March 13, 2023, serving to update the Delaware SIP to harmonize with amendments made to the state I/M program regulations and plan for implementation. These March 2023 SIP revisions pertain to both of Delaware's I/M programs—the enhanced I/M program applicable to Kent and New Castle Counties and the SIP-strengthening (akin to basic) I/M program in Sussex County. The first of these SIP revisions is an amendment to 7 DE Admin. Code 1131, pertaining to the low enhanced I/M program operated in Kent and New Castle Counties (referred to as the “Wilmington I/M program” or as the “Regulation 1131” I/M program).

The second of the March 2023 SIP submittals amends 7 DE Admin. Code 1126 pertaining to the SIP-strengthening I/M program applicable to Sussex County (referred to as the “Sussex County I/M program” or “Regulation 1126” program). DNREC revised Regulations 1126 and 1131 to optimize the I/M programs and to harmonize the requirements of the two programs, as well as to align Delaware's regulations with a change in state law ( i.e., House Bill 246 of the 2017 Delaware General Assembly legislative session), which altered subject vehicle applicability of the program by changing the exemption for new vehicles from five to seven years.

Delaware's third March 2023 SIP submittal serves to correct an error made by the state in a 2012 state regulatory action, which inadvertently incorporated Delaware's Plan for Implementation (PFI) for 7 DE Admin Code 1126 and 7 DE Admin. Code 1131 into Regulation 31. Delaware never requested that EPA incorporate the 2012 version of Regulation 1131 into the SIP, so that error did not translate to the SIP. However, Delaware's March 2023 SIP revision requests that EPA incorporate the now non-regulatory PFI as additional supporting materials for inclusion into the SIP, for the purpose of meeting Federal I/M requirements at 40 CFR part 51, subpart S not addressed by the revised Regulations 1126 and 1131.

In accordance with requirements of 1 CFR 51.5, EPA is incorporating by reference Delaware's revised Title 7, Regulation 1126 entitled “Motor Vehicle Emissions Inspection Program—Sussex County,” as published as a final rule in the Delaware Register on January 1, 2023 (effective January 11, 2023). This revised 7 DE Admin Code Regulation 1126 takes the place of the prior SIP-approved version of Regulation 1126 in its entirety. The effect is to incorporate by reference amended sections of Regulation 1126, including sections 1.0 (including 1.1 through 1.6), 2.0 (including revised definitions ), 4.0 (including 4.1 through 4.5), 5.0 (including 5.1 through 5.4), 6.0 (including 6.1 through 6.2), 7.0 (including 7.1 and 7.2), 8.0 (including 8.1 through 8.4), and 9.0 (including 9.1 through 9.3). Section 3.0 of Regulation 1126 and Technical Memorandum 1 and 2 to Regulation 1126 are removed and reserved, as these sections were removed as part of Delaware's January 1, 2023 state rule revisions.

In accordance with requirements of 1 CFR 51.5, EPA is incorporating by reference Delaware's revised Title 7, Regulation 1131 entitled “Motor Vehicle Emissions Inspection Program—Kent and New Castle Counties,” as published as a final rule in the Delaware Register on January 1, 2023 (effective January 11, 2023). Delaware's January 1, 2023 regulatory updates to 7 DE Admin Code Regulation 1131 serve to update the rules to reflect changes made by Delaware to revise its low-enhanced I/M program as described earlier ( i.e., to increase new vehicle I/M program exemptions to seven years, to expand vehicle coverage to include medium-duty vehicles; to change idle testing requirements to curb idle testing, etc.) Additionally, the January 1, 2023 version of Regulation 1131 being incorporated by reference replaces the prior SIP-approved Regulation 31 program to reflect a state regulatory format change made since EPA last approved the SIP, essentially recodifying that program. The revised 7 DE Admin. Code Regulation 1131 being incorporated by reference was state adopted on January 1, 2023 (state effective January 11, 2023). This action incorporates by reference the January 1, 2023 state revisions to 7 DE Admin. Code 1131, including: sections 1.0, 2.0 (including 2.1 through 2.6), 3.0 (including revised definitions), 4.0 (including 4.1 through 4.5), 5.0 (including 5.1 through 5.4), 6.0 (including 6.1), 7.0 (including 7.1 and 7.2), 8.0 (including 8.1 through 8.4), and 9.0 (including 9.2). With the substitution in the SIP of the January 2023 state revision of 7 DE Admin Code Regulation 1131 for the previously SIP-approved Regulation 31, sections 10 through 13 of 7 DE Admin. Code 31 are removed from the SIP, along with Appendices 1(d), 3(a)(7), 3(c)(2), 4(a), 5(a), 5(f), 6(a), 6(a)(5), 6(a)(8), 6(a)(9), 7(a), 8(a), and 9(a).

In an August 11, 2010 action, EPA approved into the SIP Delaware's administrative recodification of 7 DE Code 1126. Delaware subsequently finalized a state administrative recodification of 7 DE Admin Code 1131 (previously Regulation 31) but did not then submit that administrative change as a SIP revision to EPA. As a result, EPA did not at that time approve into the SIP the state's recodification of Regulation 1131. Delaware's March 2023 SIP revision contains a January 2023 state regulation amendment to Regulation 1131, which is based on a prior 2012 revision of that rule that Delaware had not previously requested be approved as part of the SIP. The relevant regulation in the SIP was most recently approved by EPA in October 2001, when it was still Regulation 31 in the Delaware Code. The 2023 SIP revision serves to incorporate by reference the 2023 version of the state rule revision into the Delaware SIP. The effect of doing so will be to incorporate the latest 2023 state rule amendments, as well as the 2012 state amendments. The effect of approving the PFI SIP revision and incorporating the PFI by reference into the SIP would be to remove from Regulation 1131 some oversight and administrative provisions formerly contained in regulatory addendums and appendices to Regulation 1131 and instead to include them in the SIP as additional state materials for incorporation by reference as non-regulatory revision.

B. EPA's Evaluation of Delaware's SIP Revisions

EPA's rationale for the proposed approval of these three March 2023 SIP revisions was presented in the August 15, 2024 (89 FR 66295), NPRM, referenced above, and will not be restated here. EPA received one public comment on the proposed rulemaking, which was not adverse in nature noting simply that Illinois has a program similar to Delaware's. Given that the comment was not adverse in nature, EPA is not responding to the comment in this final rule.

III. EPA's Response to Comments Received

The proposed action provided a 30-day public comment period. During this period, EPA received one public comment, which was not adverse in nature, with the commenter noting that Illinois has similar control measures. The comment provides no further explanation or context as to its relevancy to this action. Therefore, EPA is not responding to that public comment received, considering it neutral with respect to this action.

IV. Final Action

EPA is approving three SIP revisions submitted by DNREC in March 2023 as revisions to the Delaware SIP as described in the NPRM titled “Air Plan Approval; Delaware; Motor Vehicle Inspection and Maintenance Program” published in the August 15, 2024 (89 FR 66295) Federal Register . These revisions serve to amend Delaware's vehicle I/M program requirements applicable to the Delaware portion of the Philadelphia-Wilmington-Atlantic City nonattainment area, Delaware's sip-strengthening I/M program in Sussex County, and incorporation of non-regulatory implementation materials.

The SIP revisions to Delaware's I/M program being approved herein include: a change in program coverage to expand exemptions for new vehicles to seven years; the addition of vehicle OBD testing requirements in the Sussex County program; expanded vehicle coverage to include vehicles weighing between 8,501 to 14,000 pounds GVWR, for those vehicles model year 2008-and-newer; harmonization of I/M test requirements applicable to older vehicles to include curb idle exhaust and gas cap pressure tests for vehicles 1995-and-older (replacing existing two-speed idle tests on those vehicles previously performed in Kent and New Castle Counties); the phase-in of increased minimum repair cost thresholds for obtaining a repair waiver in Sussex County; and the addition of a statewide prohibition on tampering-related repairs in qualifying for an emissions repair waiver. EPA finds that these revisions to the SIP comply with applicable requirements of the CAA and EPA regulations and that these revisions to the SIP will not interfere with attainment or maintenance of any NAAQS or result in an adverse impact to air quality. Please refer to the August 15, 2024 (89 FR 66295) NPRM for further detail on the basis for this final approval. EPA's authority to approve Delaware's I/M programs is set forth in sections 110 and 182 of the Clean Air Act.

V. Incorporation by Reference

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of revisions to portions of Title 7 of the Delaware Administrative Code, Chapters 1126 and 1131. Revisions to Chapter 1126 include revised sections 1.0 through 9.0. Revisions to Chapter 1131 include revised sections 1.0 through 9.0. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the revisions to Delaware Title 7, Chapters 1126 and 1131, as described in section II of this preamble. The specific changes being made by these revisions are described in further detail in section II of this preamble.

EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rule of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.

VI. Statutory and Executive Order Reviews

A. General Requirements

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• 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);
• Does not have federalism implications as specified inExecutive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject toExecutive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject toExecutive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act;

In addition, this action, approving three March 13, 2023 Delaware SIP revisions related to the vehicle I/M program, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

Delaware DNREC did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 3, 2025. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action approving revisions to Delaware's motor vehicle emissions inspection and maintenance program may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

2. Amend § 52.420:

a. In the table in paragraph (c) by:

i. Removing the heading “Chapter 1126 Motor Vehicle Emissions Inspection Program” including the entries “Section 1.0” through “Technical Memorandum 2” and adding in its place the heading “1126 Motor Vehicle Inspection Program—Sussex County” including the entries “Section 1.0” through “Section 9.0”;

ii. Removing the heading “Regulation No. 31 Low Enhanced Inspection and Maintenance Program” including the entries “Section 1” through “Appendix 9(a)” and adding in its place the heading “1131 Motor Vehicle Emissions Inspection Program—Kent and New Castle Counties” including the entries “Section 1.0” through “Section 9.0”; and

b. In the table in paragraph (e) by adding the entry “Motor Vehicle Emissions Inspection Program; Plan for Implementation (PFI) for 7 DE Admin Code 1126 and 7 DE Admin. Code 1131” at the end of the table.

The additions read as follows:

(c) * * *