In response to 15 NCAC 02D .1002(a)(2)(iii) Presented for meeting with

1. North Carolina Division of Air Quality – Report on Applicability of Vehicle Emissions Inspection Program to Federal Installations In response to 15 NCAC 02D .1002(a)(2)(iii) Presented for meeting with Air Quality Committee, March 12, 2014 By Steve Schliesser DAQ Planning Section

2. Topics Covered • Defense Dept concern with 02D .1002(a)(2)(iii) and 40 CFR 51.356 • 1999 EPA Draft Guidance on CAA 118 • Discussions with EPA • Practices in other States • Rule Change Impasse • Rule Change Recommendation

3. Why Interest in Inspection/Maintenance (I/M) Issue at Federal Facilities? • U.S. Army and Department of Defense (DoD) submitted comment on I/M rule change asking removal of: 15 NCAC 02D .1002(a)(2)(iii) Rule for “vehicles operated on a federal installation located in a county identified in Paragraph (d) of this Rule and that meet the requirements of 40 CFR 51.356(a)(4).” DAQ rule consistent with N.C.G.S. §20-183.2(b)(5)e for vehicles “operated on a federal installation located in an emissions county”

4. Army and DoD Issues --cont’d • DoD has objections to 40 CFR 51.356(a)(4) “Vehicles … operated on Federal installations … within an I/M program area shall be tested…” • DoD echoes Dept of Justice statements that EPA mistakenly assumed that Section 118(c) and (d) waive sovereign immunity, thereby allowing states to enforce unique I/M obligations on federal facilities. Only Congress can waive sovereign immunity.

5. CAA Section 118(c) and (d) • 118(c) “Government Vehicles. –Each department … of the Federal Government shall comply with all applicable provisions of a valid I/M program” and • 118(d) “Vehicles Operated on Federal Installations. –Each department … of the Federal Government … shall require all employees which operate motor vehicles on the property … to furnish proof of compliance … with any vehicle I/M program”

6. DAQ Interpretation of CAA Section 118 • Section 118 (c) and (d) establish requirements for Federal facilities in I/M program areas subject to applicability requirements in 40 CFR 51.350 requiring I/M programs in ozone and CO nonattainment areas • Since each county with military base has not been designated nonattainment for ozone or CO, all 8 bases are exempt from 02D .1002 requirements for vehicles not currently registered in I/M counties

7. Key Findings of Study • EPA committed to change its I/M rule in 1998 • DoD/DAQ interpretation supports 1999 EPA Guidance • No EPA rule change yet • EPA waiting on DoD letter with issues and concerns • Some states authorize federal facilities to implement own I/M program • In some states without I/M requirement, military assumes responsibility to implement I/M program

8. I/M Practices in Other States • Variability among states in rule implementation and rigor - VA regulates federal vehicles same as private ones, lists federal vehicles in/out of compliance, has roadside monitors - TN and GA regulate federal vehicles same as private ones, but are not in state database so cannot track compliance - NH exempts federal vehicles from I/M requirements - IN, MA, NJ, OR regulate federal vehicles same as private ones - WA administers program at federal facilities but without state rules, and exempts 2009 and newer vehicles

9. I/M Rule Impasse • DAQ rule and NC statute must be consistent with EPA • But EPA did not change its 40 CFR 51.356 rule • Must keep NC rule until after EPA rule change • While DAQ rule implementation appears suitable, DoD wants 02D .1002(a)(iii) removed to preclude a contrary interpretation and insists 40 CFR 51.356 be changed

10. Summary and Recommendation • Counties with military bases have not been designated nonattainment, thus the 8 bases are exempt from 02D .1002 requirements for vehicles not currently registered in IM counties • Continue to encourage EPA to make changes to 40 CFR 51.356

11. Questions? Steve Schliesser NC DAQ Environmental Engineer 919-707-8701 Steve.Schliesser@ncdenr.govhttp://www.ncair.org