Approval and Promulgation of Air Quality Implementation Plans; State of MarylandGeneral Conformity Rule

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MD076-3030a; FRL-6197-3]

Approval and Promulgation of Air Quality Implementation Plans;

State of Maryland--General Conformity Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct action on a State Implementation Plan

(SIP) revision submitted by the State of Maryland. The revision

includes Maryland's regulation for general conformity, which sets forth

policy, criteria and procedures for demonstrating and assuring

conformity of non-transportation related Federal projects to all

applicable air quality implementation plans. EPA is approving this

general conformity regulation as a SIP revision in accordance with the

Clean Air Act.

DATES: This direct final rule is effective on February 8, 1999 without

further notice unless EPA receives adverse written comment by January

8, 1999. If adverse comment is received, EPA will publish a timely

withdrawal of the direct final rule in the Federal Register and inform

the public that the rule will not take effect.

ADDRESSES: Comments may be mailed to Robert Kramer, Chief; Energy

Radiation and Indoor Environment Branch, Mailcode 3AP23, U.S.

Environmental Protection Agency, Region III, 1650 Arch Street,

Philadelphia, Pennsylvania 19103. Copies of the documents relevant to

this action are available for public inspection during normal business

hours at the Air Protection Division, U.S. Environmental Protection

Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103;

the Air and Radiation Docket and Information Center, U.S. Environmental

Protection Agency, 401 M Street, SW, Washington, DC 20460; and Maryland

Department of the Environment, 2500 Broening Highway, Baltimore,

Maryland 21224.

FOR FURTHER INFORMATION CONTACT: Larry Budney , (215) 814-2184, at the

EPA Region III office or via e-mail at [email protected].

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SUPPLEMENTARY INFORMATION:

I. Background

On May 15, 1995, the Maryland Department of the Environment

submitted a formal revision to its State Implementation Plan (SIP) to

EPA. The SIP revision consists of the State's General Conformity

Regulation (COMAR 26.11.26.03), the purpose of which is to meet the

requirements of 40 CFR 51.851, State Implementation Plans, found under

40 CFR Part 51, Subpart W, Determining Conformity of General Federal

Actions to State and Federal Implementation Plans. Part 51, Subpart W

is commonly referred to as the Federal General Conformity Rule.

Maryland's SIP revision, which is the subject of this approval action,

consists of the State's General Conformity Rule. This action to approve

the State's General Conformity Rule as a SIP revision is being taken

under Section 110 of the Clean Air Act (CAA).

II. Summary of SIP Revision

The State's General Conformity Rule establishes standards and

procedures to follow when evaluating the conformity of non-

transportation related Federal projects to all applicable

implementation plans developed pursuant to Section 110 and Part D of

the CAA.

At 40 CFR Part 51, Subpart W, EPA promulgated the Federal rule for

General Conformity to implement section 176(c) of the CAA, as amended

(42 U.S.C. 7401 et seq.) which requires that all Federal actions

conform to applicable air quality implementation plans. This rule only

applies to areas designated nonattainment or maintenance areas under

the CAA, as amended. This Federal rule sets forth policy, criteria, and

procedures for demonstrating and assuring conformity of Federal actions

to all applicable implementation plans developed pursuant to Section

110 and Part D of the CAA. The rule generally applies to Federal

actions except:

(1) Those applicable under the transportation conformity rule (40

CFR Part 93, Subpart A);

(2) Actions with associated emissions below specified de minimis

levels; and

(3) Certain other actions which are exempt or presumed to conform

to applicable air quality implementation plans.

At 40 CFR 51.851, State Implementation Plans, EPA promulgated the

requirements that must be adopted by a State and submitted as a SIP

revision to implement the General Conformity provisions. The provisions

adopted by the State of Maryland for General Conformity are those

contained in and required by the Federal rule. EPA has reviewed the

State's General Conformity Rule and has determined that it satisfies

the requirements of 40 CFR 51.851. A Technical Support Document (TSD)

has been prepared which details the EPA's evaluation of the State's

General Conformity Rule. Interested parties may obtain a copy of the

TSD by contacting the EPA Regional Office listed in the ADDRESSES

section of this document.

EPA is approving this rule without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in the proposed rules section of this

Federal Register publication, EPA is publishing a separate document

that will serve as the proposal to approve the SIP revision should

adverse or critical comments be filed. This rule will be effective

February 8, 1999 without further notice unless the Agency receives

adverse comments by January 8, 1999.

If EPA receives such comments, then EPA will publish a timely

withdrawal of the direct final rule informing the public that the rule

will not take effect. All public comments received will then be

addressed in a subsequent final rule based on the proposed rule. EPA

will not institute a second comment period on this rule. Only parties

interested in commenting on this action should do so at this time. If

no such comments are received, the public is advised that this rule

will be effective on February 8, 1999 and no further action will be

taken on the proposed rule.

III. Final Action

EPA is approving the State of Maryland's General Conformity Rule

SIP revision submitted by the Maryland Department of the Environment on

May 15, 1998.

IV. Administrative Requirements

A. Executive Order 12866

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

regulatory action from review under E.O. 12866, entitled ``Regulatory

Planning and Review.''

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If EPA complies by consulting, E.O. 12875 requires EPA to

provide to the Office of Management and Budget a description of the

extent of EPA's prior consultation with representatives of affected

state, local, and tribal governments, the nature of their concerns,

copies of written communications from the governments, and a statement

supporting the need to issue the regulation. In addition, E.O. 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of state, local, and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's rule does not create a mandate on state, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

C. Executive Order 13045

E.O. 13045, entitled ``Protection of Children from Environmental

Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies

to any rule that the EPA determines (1) is ``economically

significant,'' as defined under E.O. 12866, and (2) the environmental

health or safety risk addressed by the rule has a disproportionate

effect on children. If the regulatory action meets both criteria, the

Agency must evaluate the environmental health or safety effects of the

planned rule on children and explain why the planned regulation is

preferable to other potentially effective and reasonably feasible

alternatives considered by the Agency.

This final rule is not subject to E.O. 13045 because it is not an

economically significant regulatory action as defined by E.O. 12866,

and it does not address an environmental health or safety risk that

would have a disproportionate effect on children.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If EPA complies by

consulting, Executive Order 13084 requires EPA to provide to the Office

of Management and Budget, in a separately identified section of the

preamble to the rule, a description of the extent of EPA's prior

consultation with representatives of affected tribal governments, a

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summary of the nature of their concerns, and a statement supporting the

need to issue the regulation. In addition, Executive Order 13084

requires EPA to develop an effective process permitting elected and

other representatives of Indian tribal governments ``to provide

meaningful and timely input in the development of regulatory policies

on matters that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the communities

of Indian tribal governments. This action does not involve or impose

any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because 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

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Clean Air 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).

F. Unfunded Mandates

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

annual costs to State, local, or tribal governments in the 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 annual 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.

G. 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 rule 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. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

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

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by February 8, 1999. 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 to approve the Maryland General Conformity

Rule 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, Incorporation by

reference, Ozone.

Dated: November 24, 1998.

Thomas Voltaggio,

Regional Administrator, Region III.

40 CFR part 52 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 et seq.

Subpart V--Maryland

2. Section 52.1070 is amended by adding paragraph (c)(136) to read

as follows:

Sec. 52.1070 Identification of plan.

* * * * *

(c) * * *

(136) Revisions to the Maryland State Implementation Plan submitted

on May 15, 1995 by the Maryland Department of the Environment.

(i) Incorporation by reference.

(A) Letter of May 15, 1995 from the Maryland Department of the

Environment transmitting Maryland Regulation COMAR 26.11.26.03,

regarding General Conformity, for approval as a SIP revision.

(B) Maryland Regulation COMAR 26.11.26.03, effective June 5, 1995.

(ii) Additional material--Remainder of the May 15, 1995 state

submittal pertaining to General Conformity.

[FR Doc. 98-32572 Filed 12-8-98; 8:45 am]

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