Approval and Promulgation of Air Quality Implementation Plans; Maryland; 15% Rate of Progress Plan for the Baltimore Ozone Nonattainment Area

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MD 053-3020; FRL-5905-8]

Approval and Promulgation of Air Quality Implementation Plans;

Maryland; 15% Rate of Progress Plan for the Baltimore Ozone

Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is granting conditional approval of the State

Implementation Plan (SIP) revision submitted by the State of Maryland,

for the Baltimore severe ozone nonattainment area, to meet the 15

percent reasonable further progress (RFP, or 15% plan) requirements of

the Clean Air Act (the Act). EPA is granting conditional approval of

the 15% plan, submitted by the State of Maryland, because, on its face,

the plan achieves the required 15% emission reduction, but additional

documentation to verify the emission calculations is necessary for full

approval. Additionally, the plan relies upon Maryland's inspection and

maintenance (I/M) program that received final conditional approval on

July 31, 1997. This action is being taken under section 110 of the

Clean Air Act.

EFFECTIVE DATE: This final rule is effective on November 10, 1997.

ADDRESSES: Copies of the documents relevant to this action are

available for public inspection during normal business hours at the

Air, Radiation, and Toxics Division, U.S. Environmental Protection

Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania

19107; and the Maryland Department of the Environment, 2500 Broening

Highway, Baltimore, Maryland 21224.

FOR FURTHER INFORMATION CONTACT: Carolyn M. Donahue, Ozone/Carbon

Monoxide and Mobile Sources Section (3AT21), USEPA--Region III, 841

Chestnut Building, Philadelphia, Pennsylvania 19107, or by telephone at

(215) 566-2095 or via e-mail, at the following address:

[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

Section 182(b)(1) of the Act requires ozone nonattainment areas

classified as moderate or above to develop plans to reduce volatile

organic compounds (VOC) emissions by 15% from 1990 baseline levels. The

Baltimore area is classified as a severe ozone nonattainment area and

is subject to the 15% plan requirement. The Baltimore ozone

nonattainment area consists of the City of Baltimore, and Anne Arundel,

Baltimore, Carroll, Howard, and Harford Counties.

The State of Maryland submitted the 15% plan SIP revision for the

Baltimore nonattainment area on July 12, 1995. On August 5, 1997, EPA

published a notice of proposed rulemaking (NPR) in the Federal Register

proposing conditional approval of the 15% plan (62 FR 42079). EPA's

rationale for granting conditional approval to the Maryland 15% plan

for the Baltimore area and the details of the July 12, 1995 submittal

are contained in the August 5, 1997 NPR and the accompanying technical

support document and will not be restated here.

II. Public Comments and EPA Responses

EPA received a letter in response to the August 5, 1997 NPR from

the Earthjustice Legal Defense Fund (ELDF). The following discussion

summarizes and responds to the comments received.

Comment 1: ELDF commented that the Baltimore 15% plan must be

disapproved because it failed to produce the 15% emission reduction of

73.3 tons/day identified in the plan as prescribed by section

182(b)(1)(A)(I) of the Act.

Response 1: Under section 110(k)(4) of the Act, EPA may

conditionally approve a plan based on a commitment from the state to

adopt specific enforceable measures within one year from the date of

approval. EPA believes that the 15% required reduction in the Baltimore

nonattainment area will be 63.9 tons/day based on new information

supplied by the State. Although this information has not been

established through an official SIP submittal, this information is

contained in Maryland's rate-of-progress SIP revision for the 1996-1999

time period (known at the Post-1996 plan). Maryland has held a public

hearing on this SIP revision, which EPA provided comments on for the

public record, and expects to submit it to EPA shortly. Under these

circumstances--including the fact that the amount of emissions at issue

is a relatively small percentage of the 15% requirement--EPA has the

authority to conditionally approve Maryland's 15% SIP, on the condition

that Maryland submit the requisite documentation. The State of Maryland

has agreed to document the amount of reductions needed to meet the 15%

requirement, and submitted such commitment in writing on September 4,

1997.

Comment 2: EPA concluded that ``EPA cannot credit this claim'' of

6.3 tons/day from enhanced rule compliance for the Baltimore area. EPA

nevertheless included this measure in the list of creditable measures,

acting unlawfully and inconsistently.

Response 2: The commenter is correct. This inconsistency is the

result of a typographical error. The credit claim of 6.3 tons/day (TPD)

from enhanced rule compliance is not creditable toward the 15% rate-of-

progress requirement for the Baltimore nonattainment area. Therefore,

the total credits achieved by Maryland toward the 15% requirement in

the plan is 64.2 TPD.

Comment 3: ELDF commented that the Maryland 15% plan, which takes

credit for federal control measures such as architectural and

industrial maintenance coating, consumer/commercial products and

autobody refinishing, should not be approved because those federal

control measures have not yet been promulgated. ELDF states that

allowing such credit violates section 182(b)(1)(C) of the Act. ELDF

further commented that EPA cannot lawfully base SIP decisions on

unpromulgated rules because it does not know what these final rules

will say. ELDF contends that allowing credit on as yet unpromulgated

rules, even with the caveat that the states must revisit the rule later

if the federal rules turn out differently than predicted, amounts to an

unlawful extension of a SIP submission deadline. ELDF stated that EPA

must base its decision on the record before it at the time of its

decision; not on some record that the agency hopes will exist in the

future.

Response 3: Section 182(b)(1)(A) of the Act requires states to

submit their 15% SIP revisions by November, 1993. Section 182(b)(1)(C)

of the Act provides the following general rule for

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creditability of emissions reductions towards the 15% requirement:

``Emissions reductions are creditable toward the 15 percent required *

* * to the extent they have actually occurred, as of [November, 1996],

from the implementation of measures required under the applicable

implementation plan, rules promulgated by the Administrator, or a

permit under Title V.''

This provision further indicates that certain emissions reductions

are not creditable, including reductions from certain control measures

required prior to the 1990 Amendments. This creditability provision is

ambiguous. Read literally, it provides that although the 15% SIPs are

required to be submitted by November 1993, emissions reductions are

creditable as part of those SIPs only if ``they have actually occurred,

as of [November 1996]''. This literal reading renders the provision

internally inconsistent. Accordingly, EPA believes that the provision

should be interpreted to provide, in effect, that emissions reductions

are creditable ``to the extent they will have actually occurred, as of

[November, 1996], from the implementation of [the specified measures]''

(the term ``will'' is added). This interpretation renders the provision

internally consistent.

Section 182(b)(1)(C) of the Act explicitly includes as creditable

reductions those resulting from ``rules promulgated by the

Administrator''. This provision does not state the date by which those

measures must be promulgated, i.e., does not indicate whether the

measures must be promulgated by the time the 15% SIPs were due

(November, 1993), or whether the measures may be promulgated after this

due date.

Because the statute is silent on this point, EPA has discretion to

develop a reasonable interpretation, under Chevron U.S.A. Inc. v. NRDC,

467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). EPA believes it

reasonable to interpret section 182(b)(1)(C) of the Act to credit

reductions from federal measures as long as those reductions are

expected to occur by November 1996, even if the Federal measures are

not promulgated by the November 1993 due date for the 15% SIPs.

EPA's interpretation is consistent with the congressionally

mandated schedule for promulgating regulations for consumer and

commercial products, under section 182(e) of the Act. This provision

requires EPA to promulgate regulations controlling emissions from

consumer and commercial products that generate emissions in

nonattainment areas. Under the schedule, by November 1993--the same

date that the States were required to submit the 15% SIPs--EPA was to

issue a report and establish a rulemaking schedule for consumer and

commercial products. Further, EPA was to promulgate regulations for the

first set of consumer and commercial products by November, 1995. It is

reasonable to conclude that Congress anticipated that reductions from

these measures would be creditable as part of the 15% SIPs, as long as

those reductions were to occur by November, 1996.

Crediting reductions from federal measures promulgated after the

due date for the 15% SIPs is also sensible from an administrative

standpoint. Crediting the reductions allows the states to plan

accurately to meet the 15% reduction target from the appropriate level

of state and federal measures. Not crediting such reductions would mean

that the states would have to implement additional control requirements

to reach the 15% mark; and that SIPs would result in more than a 15%

level of reductions once the federal measures in question were

promulgated and implemented. At that point in time, the state may seek

to eliminate those additional SIP measures on grounds that they would

no longer be necessary to reach the 15% level. Such constant revisions

to the SIP to demonstrate 15% is a paper exercise that exhausts both

the states' and EPA's time and resources.

The fact that EPA cannot determine precisely the amount of credit

available for the federal measures not yet promulgated does not

preclude granting the credit. The credit can be granted as long as EPA

is able to develop reasonable estimates of the amount of VOC reductions

from the measures EPA expects to promulgate. EPA believes that it is

able to develop reasonable estimates, particularly because is has

already proposed and taken comment on the measures at issue, and

expects to promulgate final rules by the spring of 1998. Many other

parts of the SIP, including state measures, typically include estimates

and assumptions concerning VOC amounts, rather than actual

measurements. For example, EPA's document to estimate emissions,

``Compilation of Air Pollutant Emission Factors'', January 1995, AP-

42), provide emission factors used to estimate emissions from various

sources and source processes. AP-42 emission factors have been used,

and continue to be used, by states and EPA to determine base year

emission inventory figures for sources and to estimate emissions from

sources where such information is needed. Estimates in the expected

amount of VOC reductions are commonly made in air quality plans, even

for those control measures that are already promulgated.

Moreover, the fact that EPA is occasionally delayed in its

rulemaking is not an argument against granting credits from these

measures. The measures are statutorily required, and states and

citizens could bring suit to enforce the requirements that EPA

promulgate them. If the amount of credit that EPA allows the state to

claim turns out to be greater than the amount EPA determines to be

appropriate when EPA promulgates the federal measures, EPA intends to

take appropriate action to require correction of any shortfall in

necessary emissions reductions that may occur.

The above analysis focuses on the statutory provisions that include

specific dates for 15% SIP submittals (November, 1993), and

implementation (November 15, 1996). These dates have expired, and EPA

has developed new dates for submittal and implementation. EPA does not

believe that the expiration of the statutory dates, and the development

of new ones, has implications for the issue of whether reductions from

federal measures promulgated after the date of 15% SIP approval may be

counted toward those 15% SIPs. Although the statutory dates have

passed, EPA believes that the analysis described above continues to be

valid.

Further, since the publication of the proposed conditional approval

for the Baltimore nonattainment area, EPA has promulgated Maryland's

state regulation for autobody refinishing (62 FR 41853, August 4,

1997). Maryland claimed 5.0 tons/day of creditable emissions reductions

in the 15% plan under their state regulation, not under the federal

rule.

Comment 4: EPA has improperly suggested that SIPs can be approved

if the state has failed to demonstrate approvability. In this regard,

EPA has not been able to verify Maryland's emission reduction credit

claims for reformulated gasoline, Tier I or Stage II vapor recovery,

but has nonetheless stated that it has no reason to dispute the credit

claimed by Maryland and is therefore approving the 15% plan. An absence

of statutorily required documentation requires disapproval.

Response 4: EPA believes Maryland has demonstrated that it has

appropriately modeled its mobile source program benefits, through

proper use of EPA's MOBILE emissions factor estimation model, combined

with state vehicle miles of travel estimates. It is not practical to

submit the hundreds or

[[Page 52663]]

even thousands of modeling input and output runs needed to evaluate the

mobile source-related portions of the 15% rate-of-progress SIP.

Maryland instead submitted to EPA a list of the variables and

assumptions utilized in its MOBILE modeling analysis, along with sample

model input and output scenarios.

While the SIP does not contain sufficient data to reconstruct the

analysis and, therefore, to independently verify the State's claims,

EPA believes the State's methodology is sound. However, EPA has

deferred the specific results of that methodology, in part, to the

State.

Comment 5: ELDF commented that EPA allowed credit for lithographic

printing and surface cleaning operations based on the assertion that

these regulations would be approved by EPA in other proceedings.

However, EPA does not state that these approvals have occurred and may

not lawfully grant credit to measures that do not comply with section

110(a).

Response 5: The rule for lithographic printing was approved and

published in the Federal Register on September 2, 1997 (62 FR 42199).

The surface cleaning operations regulation was approved on August 4,

1997 (62 FR 41853).

Comment 6: ELDF commented that it is unlawful for EPA to allow

substantial credit from an I/M program that is not before the agency.

The 15% plan before EPA was submitted on July 12, 1995, and thus does

not incorporate Maryland's current I/M plan which was submitted in

March 1996. Also, it is unlawful to allow postponements under the

National Highway System Designation Act (NHSDA) for an area that did

not submit an NHSDA-type program.

Response 6: Maryland's March 1996 I/M submittal was an amendment to

the I/M program submitted to EPA on July 11, 1995. The March I/M

submittal does not supercede the July 1995 program; thus Maryland's

current I/M program is before EPA. EPA granted conditional approval of

Maryland's I/M program on July 31, 1997. If the rules submitted from

Maryland to EPA are valid, they do not have to be submitted in a

particular order.

EPA believes that test-only I/M programs like the one in Maryland

should be treated in the same manner as NHSDA state programs (test and

repair programs) with regard to 15% plan requirements. In a letter from

Mary Nichols to MDE Secretary Jane Nishida dated January 30, 1996, EPA

stated this position is justified in light of administrative and

statutory changes in the I/M requirements and the extent to which

states relied on I/M programs in their 15% submittals. EPA's approach

would have the effect of keeping a level playing field by assuring that

Maryland would not be penalized for adopting a test-only program.

Comment 7: ELDF commented that EPA cannot postpone the deadline for

achieving the required 15% reduction any further than the current

deadline of November 15, 1999. It contends that, without conceding the

legality of a 3-year postponement of the statutory deadline of November

15, 1996 allowed by EPA, any longer postponement would be unlawful.

Once a compliance date has expired, compliance must occur in the

shortest time possible. The commenter cited various court decisions in

an effort to demonstrate that a postponement longer than three years

would not adhere to the strict standard of compliance. Also, ELDF

claimed that postponing a requirement for reasonable further progress

until after the deadline for attainment would be unlawful.

Response 7: The case law cited by the commenter considers various

circumstances, such as failure by EPA to promulgate rules on the

statutorily mandated deadline or to take action on state failures to

make SIP submissions on the statutorily mandated deadline. See, e.g.,

Natural Resources Defense Council v. EPA, 22 F.3d 1125 (D.C. Cir.

1994), Natural Resources Defense Council v. Train, 510 F.2d 692 (D.C.

Cir. 1975). These cases articulate various formulations of the

standards by which the courts establish new deadlines. EPA believes

that its formulation of the standard by which States must achieve the

15% reductions--``as soon as practicable''--is generally consistent

with the case law.

Further, EPA believes that Maryland has demonstrated that it has

met this standard. The notice of proposed rulemaking and the TSD

accompanying that proposal establish that implementation of the I/M

program is as soon as practicable. The main reason for the delays in

the development and implementation of Maryland's 15% SIP relate to its

enhanced I/M plan. Most recently, these enhanced I/M delays were

closely associated with the enactment, in November 1995, of the NHSDA.

The NHSDA afforded states the opportunity to revise their I/M plans in

a manner that would be treated as meeting certain EPA requirements on

an interim basis. The NHSDA provided additional time for the State and

EPA to develop and process the revised I/M plans. In the January 1996

letter to Secretary Nishida from Mary Nichols, EPA states it will

credit Maryland's test-only enhanced I/M program for purposes of the

15% requirement. This approach enables states with test-only programs

to enhance those programs starting in 1997 while applying credit for

those programs to satisfy the 1996 15% VOC reduction plan requirements.

Maryland acted expeditiously in developing and implementing a revised

enhanced I/M program. However, the amount of time necessary to develop

and implement the I/M program rendered impossible achieving the 15%

reduction target by the end of 1996. The addendum to the TSD showing

the chronology of Maryland's I/M program development demonstrates the

necessity of the extension.

Moreover, EPA has reviewed other VOC SIP measures that are at least

theoretically available to Maryland, and has concluded that

implementation of any such measures that might be appropriate would not

accelerate the date of achieving the 15% reductions. For reasons

indicated elsewhere in the record, EPA considers the biennial I/M

program selected by Maryland to be as soon as practicable,

notwithstanding the fact that other states may choose to implement an

annual program.

Comment 8: ELDF commented that any further delays in achieving the

mandate 15% reduction from VOC control measures, including most

prominently, enhanced I/M, must not be tolerated. Furthermore, missing

the November 15, 1996 deadline unlawfully rewards states for failure to

meet the deadline by giving them increased credits under national

programs such as the Tier I Federal Motor Vehicle Control Program. ELDF

argues that such an approach unlawfully delays the achievement of clean

air by allowing the states to reduce their own emission control efforts

by the amount of the post-November 1996 fleet turnover benefits.

Consequently, EPA must deny the post-November 1996 Tier I credit and

require states to adopt emission reductions to compensate for post-1996

growth in vehicle miles traveled (VMT).

ELDF further argues that EPA cannot delay the section 182(b)(1)

requirement for states to account for growth in the 15% plans to the

Post-1996 rate-of-progress plans, particularly because the Post-1996

plans involve potential NOX substitution that is not

permitted in the VOC-only 15% plans.

Response 8: EPA disagrees with this comment. The NHSDA was enacted

by Congress in November of 1995. Section 348 of this statute provided

states' renewed opportunity to satisfy the Clean Air Act requirements

related to the network design for I/M programs. States were not only

granted the

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flexibility to enact test-and-repair programs, but were provided

additional time to develop those programs and to submit proposed

regulations for interim SIP approval. Maryland moved rapidly to propose

I/M regulations and to submit to EPA on March 27, 1996 an amendment to

the I/M SIP containing those regulations. EPA granted conditional

approval of the Maryland I/M program on July 31, 1997 (62 FR 40938).

Under the terms of the 15% requirement in section 182(b)(1)(A)(I)

of the Act, the SIP must--``provide for [VOC] emission reductions,

within 6 years after the date of enactment of the Clean Air Act

Amendments of 1990, of at least 15 percent from baseline emissions,

accounting for any growth in emissions after [1990].''

EPA interprets this provision to require that a specific amount of

VOC reductions occur, and has issued guidance for computing this

amount. Maryland, complying with this guidance, has determined the

amount of the required VOC reductions needed to meet the 15% goal. It

is no longer possible for Maryland to implement measures to achieve

this level of reduction as the November 15, 1996 date provided under

the 15% provisions has passed. Accordingly, EPA believes that Maryland

will comply with the statutory mandate as long as it achieves the

requisite level of reductions on an as-soon-as-practicable basis after

1996. In computing the reductions, EPA believes it acceptable for

states to count reductions from federal measures, such as vehicle

turnover, that occur after November 15, 1996, as long as they are

measures that would be creditable had they occurred prior to that date.

These measures result in VOC emission reductions as directed by

Congress in the Act; therefore, these measures should count towards the

achievement--however delayed--of the 15% VOC reduction goal.

EPA does not believe states are obligated as part of the 15% SIP to

implement further VOC reductions to offset increases in VOC emissions

due to post-1996 growth. As noted above, the 15% requirement mandates a

specific level of reductions. By counting the reductions that occur

through measures implemented pre- and post-1996, SIPs may achieve this

level of reductions. Although section 182(b)(1)(A)(I), quoted above,

mandates that the SIPs account for growth after 1990, the provision

does not, by its terms, establish a mechanism for how to account for

growth, or indicate whether, under the present circumstances, post-1996

growth must be accounted for. EPA believes that its current

requirements for the 15% SIPs meet section 182(b)(1)(A)(I). In

addition, although post-1996 VOC growth is not offset under the 15%

SIPs, such growth must be offset in the Post-1996 plans required for

serious and higher classified areas to achieve 9% in VOC reductions

every three years after 1996 (until the attainment date). Maryland's

Post-1996 plan for the Baltimore area, which is nearing completion,

does appear to achieve the 9% emissions reductions required between

1996 and 1999, taking into account growth in VOCs during that time. The

fact that these Post-1996 SIPs may substitute NOX reductions

for VOC reductions in the 1996 to 1999 period does not undermine the

integrity of the 15% SIPs. Allowing NOX substitution is

fully consistent with the health goals of the Clean Air Act.

Under EPA's approach, post-1996 growth will be accounted for in the

plans that Congress intended to take account of such growth--the Post-

1996 ``rate of progress'' SIPs. To shift the burden of accounting for

such growth to the 15% plans, as commenters would have EPA do, would

impose burdens on states above and beyond what Congress contemplated

would be imposed by the 15% requirement (which was intended to have

been achieved by November 15, 1996). In the current situation, where it

is clearly impossible to achieve the target level of VOC reductions (a

15% reduction taking into account growth through November 1996) by

November 1996, EPA believes that its approach is a reasonable and

appropriate one. It will still mean that post-1996 growth is taken into

account in the SIP revisions Congress intended to take into account

such growth and it means that the target level of VOC reductions will

be achieved as soon as practicable. Once the Post-1996 rate of progress

plans are approved and implemented, areas will have achieved the same

level of progress that they were required to have achieved through the

combination of the 15% and rate of progress requirements as originally

intended by Congress.

Comment 9: ELDF commented that EPA proposed disapproval of the

Philadelphia 15% plan in 1996 because the plan assumed credit from

control strategies either not fully adopted, not creditable under the

Clean Air Act, or which had not been adequately quantified.

Furthermore, EPA proposed disapproval of the plan because Pennsylvania

switched I/M programs yet did not revise the 15% plan to reflect the

differences in the I/M program description and projected emission

reductions. EPA set precedence with this rulemaking and to propose

approval of the Baltimore 15% plan when the same deficiencies exist is

acting in an arbitrary and capricious manner of treating similar

situations in such a diametrically opposed fashion.

Response 9: EPA's proposed approval of the Baltimore 15% plan is

not inconsistent with the proposed disapproval of the Philadelphia 15%

plan. On July 10, 1996, EPA proposed to disapprove Pennsylvania's 15%

plan for the Philadelphia area because it would not have achieved

sufficient reductions to meet the requirements of section 182(b)(1) of

the Act (61 FR 36320). EPA did not credit any reductions from

Pennsylvania's enhanced I/M program because at the time of the July 10,

1996 rulemaking EPA had disapproved Pennsylvania's I/M submittal. In

a letter dated April 13, 1995, EPA converted the August 31, 1994

conditional approval of Pennsylvania's I/M submittal to a disapproval.

As discussed above, on July 31, 1997, EPA granted conditional approval

of Maryland's I/M program in the Maryland SIP (62 FR 40938). Therefore,

the factual basis for EPA's conditional approval of Baltimore's 15%

plan is not similar to that of the Philadelphia 15% plan. In the July

10, 1996 proposed disapproval, EPA credited the measures in

Pennsylvania's 15% plan towards meeting the rate of progress

requirements of the Act even though they were insufficiently documented

to qualify for full approval. See, 61 FR 36322. That action is wholly

consistent with EPA's conditional approval of the Baltimore 15% plan.

III. Conditional Approval

EPA has evaluated Maryland's July 12, 1995 submittal for

consistency with the Act, applicable EPA regulations, and EPA policy

and has determined, as documented in the August 5, 1997 NPR, that, on

its face, the 15% plan for the Baltimore area achieves the required 15%

VOC emission reduction to satisfy the requirements of section 182(b)(1)

of the Act. However, there are measures included in the Maryland 15%

plan, which may be creditable towards the Act requirement, but which

are insufficiently documented for EPA to take action on at this time.

While the amount of creditable reductions for certain control measures

has not been adequately documented to qualify for Clean Air Act

approval, EPA has determined that the submittal for the Baltimore area

contains enough of the required structure to warrant conditional

approval. EPA cannot grant full approval of the Baltimore 15% rate-of-

progress plan under section 110(k)(3) and part D of the Clean Air Act.

Instead,

[[Page 52665]]

EPA is granting conditional approval of this SIP revision under section

110(k)(4) of the Act, because the State must meet the specified

conditions and supplement its submittal to satisfy the requirements of

section 182(b)(1) of the Act regarding the 15% rate-of-progress plan,

and because the State must supplement its submittal and demonstrate it

has achieved the required emission reductions.

The August 5, 1997 NPR listed the conditions that Maryland must

meet in order to convert the conditional approval to full approval. In

a September 4, 1997 letter to EPA, the State committed to meet all the

conditions listed in the NPR within 12 months of final conditional

approval. The conditions from the NPR are restated here. The State of

Maryland must fulfill the following conditions by no later than October

9, 1998:

1. Maryland's 15% plan calculations must reflect the EPA approved

1990 base year emissions inventory (61 FR 50715, September 27, 1996).

2. Maryland must meet the conditions listed in the October 31, 1996

conditional I/M rulemaking notice, including its commitment to remodel

the I/M reductions using the following two EPA guidance memos: ``Date

by which States Need to Achieve all the Reductions Needed for the 15

Percent Plan from I/M and Guidance for Recalculation,'' note from John

Seitz and Margo Oge dated August 13, 1996, and ``Modeling 15% VOC

Reductions from I/M in 1999--Supplemental Guidance,'' from Gay

MacGregor and Sally Shaver dated December 23, 1996.

3. Maryland must remodel to determine affirmatively the creditable

reductions from RFG and Tier I in accordance with EPA guidance.

4. Maryland must submit a SIP revision amending the 15% plan with a

determination using appropriate documentation methodologies and credit

calculations that the 64.2 TPD reduction, supported through creditable

emission measures in the submittal, satisfies Maryland's 15% ROP

requirement for the Baltimore area.

After making all the necessary corrections to establish the

creditability of chosen control measures, Maryland must demonstrate

that 15% emission reduction is obtained in the Baltimore nonattainment

area as required by section 182(b)(1) of the Act and in accordance with

EPA's policies and guidance issued pursuant to section 182(b)(1).

IV. Final Action

EPA is today granting conditional approval of the Baltimore 15%

plan as a revision to the Maryland SIP. This rulemaking action will not

convert to full approval until Maryland has met conditions 1 through 4

of this rulemaking. If the conditions are not met within 12 months of

today's rulemaking, this rulemaking will convert to a disapproval. Once

Maryland satisfies the conditions of the I/M rulemaking and receives

final approval of I/M, EPA will grant final approval of the 15% plan

(assuming that the other conditions have been met). Conversely, if EPA

disapproves the Maryland I/M program, EPA's conditional approval of

Baltimore's 15% plan would also convert to a disapproval. EPA would

notify Maryland by letter that the conditions have not been met and

that the conditional approval of the 15% plan has converted to a

disapproval. Each of the conditions must be fulfilled by Maryland and

submitted to EPA as an amendment to the SIP. If Maryland corrects the

deficiencies within one year of conditional approval, and submits a

revised 15% plan as a SIP revision, EPA will conduct rulemaking on that

revision.

Further, EPA makes this conditional approval of the 15% plan

contingent upon Maryland maintaining a mandatory I/M program. EPA will

not credit any reductions toward the 15% ROP requirement from a

voluntary enhanced I/M program. Any changes to I/M which would render

the program voluntary or discontinued would cause a shortfall of

credits in the 15% reduction goal. Therefore, this action will convert

automatically to a disapproval should the State make the enhanced I/M

program a voluntary measure.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any state implementation plan. Each request for revision to

the state implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 review.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and subchapter I, part D of the

Clean Air Act do not create any new requirements but simply approve

requirements that the State is already imposing. Therefore, because the

Federal SIP approval does not impose any new requirements, the EPA

certifies that it does not have a significant impact on any small

entities affected. Moreover, due to the nature of the Federal-State

relationship under the Act, preparation of a flexibility analysis would

constitute Federal inquiry into the economic reasonableness of state

action. The Clean Air Act forbids EPA to base its actions concerning

SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246,

255-66 (1976); 42 U.S.C. 7410(a)(2).

Conditional approvals of SIP submittals under section 110 and

subchapter I, part D of the Act do not create any new requirements but

simply approve requirements that the State is already imposing.

Therefore, because the Federal SIP approval does not impose any new

requirements, EPA certifies that it does not have a significant impact

on any small entities affected. Moreover, due to the nature of the

Federal-State relationship under the Act, preparation of a flexibility

analysis would constitute Federal inquiry into the economic

reasonableness of state action. The Clean Air Act forbids EPA to base

its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.

EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

If the conditional approval is converted to a disapproval under

section 110(k), based on the State's failure to meet the commitment, it

will not affect any existing state requirements applicable to small

entities. Federal disapproval of the state submittal does not affect

its state-enforceability. Moreover, EPA's disapproval of the submittal

does not impose a new Federal requirement. Therefore, EPA certifies

that this disapproval action does not have a significant impact on a

substantial number of small entities because it does not remove

existing requirements nor does it substitute a new federal requirement.

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the

[[Page 52666]]

aggregate; or to private sector, of $100 million or more. Under section

205, EPA must select the most cost-effective and least burdensome

alternative that achieves the objectives of the rule and is consistent

with statutory requirements. Section 203 requires EPA to establish a

plan for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves pre-

existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action, pertaining to the final conditional

interim approval of the 15% plan for the Baltimore severe ozone

nonattainment area, must be filed in the United States Court of Appeals

for the appropriate circuit by December 8, 1997. Filing a petition for

reconsideration by the Administrator of this final rule does not affect

the finality of this rule 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 may not be challenged later in proceedings to enforce its

requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Ozone.

Dated: September 19, 1997.

A.R. Morris,

Acting Regional Administrator, Region III.

Chapter I, title 40, of the Code of Federal Regulations is amended

as follows:

PART 52--[AMENDED]

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

Authority: 42 U.S.C. 7401-7671q.

Subpart V--Maryland

2. Section 52.1072 is amended by adding paragraph (c) to read as

follows:

Sec. 52.1072 Conditional approval.

* * * * *

(c) The State of Maryland's July 12, 1995 submittal for the 15

Percent Rate of Progress Plan (15% plan) for the Baltimore ozone

nonattainment area, is conditionally approved based on certain

contingencies. The conditions for approvability are as follows:

(1) Maryland's 15% plan calculations must reflect the EPA approved

1990 base year emissions inventory in Sec. 52.1075.

(2) Maryland must meet the conditions listed in the October 31,

1996 conditional I/M rulemaking notice, including its commitment to

remodel the I/M reductions using the following two EPA guidance memos:

``Date by which States Need to Achieve all the Reductions Needed for

the 15 Percent Plan from I/M and Guidance for Recalculation,'' note

from John Seitz and Margo Oge dated August 13, 1996, and ``Modeling 15%

VOC Reductions from I/M in 1999--Supplemental Guidance,'' from Gay

MacGregor and Sally Shaver dated December 23, 1996.

(3) Maryland must remodel to determine affirmatively the creditable

reductions from RFG and Tier I in accordance with EPA guidance.

(4) Maryland must submit a SIP revision amending the 15% plan with

a determination using appropriate documentation methodologies and

credit calculations that the 64.2 TPD reduction, supported through

creditable emission measures in the submittal, satisfies Maryland's 15%

ROP requirement for the Baltimore area.

[FR Doc. 97-26533 Filed 10-8-97; 8:45 am]

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