Approval and Promulgation of Air Quality Implementation Plans; Maryland; Reasonably Available Control Technology Requirements for Major Sources of Nitrogen Oxides

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MD27-1-6150; FRL-6303-8]

Approval and Promulgation of Air Quality Implementation Plans;

Maryland; Reasonably Available Control Technology Requirements for

Major Sources of Nitrogen Oxides

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing conditional limited approval of a State

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

This revision to Maryland's Regulations requires all major sources of

nitrogen oxides (NOX) to implement reasonably available

control technology (RACT) and was submitted to comply with the

NOX RACT requirements of the Clean Air Act (the Act). Also,

Maryland's regulations are being amended by adding three definitions

and amending the definition for ``fuel burning equipment.'' The

intended effect of this action is to propose conditional limited

approval of the Maryland NOX RACT regulation, and also to

propose full approval of the new and revised definitions submitted by

the State of Maryland.

DATES: Written comments must be received on or before March 22, 1999.

ADDRESSES: Written comments may be mailed to David L. Arnold, Chief,

Ozone and Mobile Sources Branch, Mailcode 3AP21, 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; and the Maryland

Department of the Environment, 2500 Broening Highway, Baltimore,

Maryland, 21224.

FOR FURTHER INFORMATION CONTACT: Carolyn M. Donahue, (215) 814-2095, at

the above EPA Region III address, or via e-mail at

[email protected]. While information may be requested via e-mail,

any comments must be submitted in writing to the EPA Region III address

above.

SUPPLEMENTARY INFORMATION:

I. Background

On July 11, 1995, the Maryland Department of the Environment (MDE)

submitted a revision to its State Implementation Plan (SIP) for the

control of NOX emissions from major sources. The revision

consisted of a new version of Code of Maryland Regulations (COMAR)

Title 26, Subtitle 11, Chapter 09 ``Control of Fuel Burning Equipment

and Stationary Internal Combustion Engines,'' Regulation 26.11.09.08

``Control of NOX Emissions from Major Stationary Sources,''

which repealed and replaced the existing version of COMAR 26.11.09.08

(hereafter Regulation .08). The new Regulation .08 requires major

NOX sources in ozone nonattainment areas classified as

moderate and above and/or located in the Ozone Transport Region (OTR)

to comply with RACT requirements by May 31, 1995. Section B of COMAR

26.11.09.01 ``Definitions,'' has been amended to include definitions

for the terms ``annual combustion analysis,'' ``space heater'' and

``system'' used in Regulation .08. Also, the definition for ``fuel

burning equipment'' has been expanded to include stationary internal

combustion engines and stationary combustion turbines.

Section 182 of the Act defines a major NOX source as one

that emits or has the potential to emit 25 or more tons of

NOX per year (TPY) in any ozone nonattainment area

classified as severe, or 50 or more TPY located in any ozone

nonattainment area classified as serious. For any area in the OTR

classified as attainment or marginal nonattainment, Secs. 182 and 184

of the Act define a major stationary source of NOX as one

that emits or has the potential to emit 100 or more TPY. Section 182

requires that RACT on major stationary sources of NOX be

implemented by no later than May 31, 1995.

The major source size is determined by its location, the

classification of that area, and whether it is located in the OTR,

which is established by the Act. The Baltimore nonattainment area and

Cecil County are classified as severe nonattainment areas. Calvert,

Charles, Frederick, Montgomery and Prince George's Counties are

classified as serious ozone nonattainment areas. The remaining counties

in Maryland are classified as marginal or in attainment but are located

in the OTR and therefore are treated as if they are classified as

moderate nonattainment areas.

II. Summary of Maryland's SIP Revision

Maryland submitted this SIP revision, establishing definitions and

standards for operation of major NOX sources, on June 8,

1993, and submitted two sets of amendments on July 11, 1995. Maryland

[[Page 8035]]

adopted the new Regulation .08 on April 13, 1993. Regulation .08 became

effective on May 10, 1993. Maryland adopted the first set of amendments

on May 24, 1994. These amendments became effective June 20, 1994.

Maryland adopted the second set of amendments on April 13, 1995. The

second set of amendments became effective on May 8, 1995.

COMAR 26.11.09.01 Definitions

COMAR 26.11.09.01, ``Definitions,'' has been revised to add the

terms ``annual combustion analysis,'' ``space heater,'' and ``system''

which are used in Chapter 09, ``Control of Fuel Burning Equipment and

Stationary Internal Combustion Engines.'' Also, the definition for

``fuel burning equipment'' has been expanded to include stationary

internal combustion engines and stationary combustion turbines.

COMAR 26.11.09.08 Control of NOX Emissions From Major

Stationary Sources

COMAR 26.11.09.08.A Applicability

Section A establishes the applicability of this regulation to

owners or operators of an installation that is located at a premises

that has a total potential to emit: 25 or more TPY in Baltimore City,

Anne Arundel, Baltimore, Carroll, Harford, Howard Counties (the

Baltimore severe nonattainment area) and Cecil County (part of the

Philadelphia-Wilmington-Trenton severe nonattainment area), 50 or more

TPY in Calvert, Charles, Frederick, Montgomery, and Prince George's

Counties (the Maryland portion of the Washington, DC serious

nonattainment area), or 100 or more TPY in Allegany, Caroline,

Dorchester, Garrett, Kent, Queen Anne's, St. Mary's, Somerset, Talbot,

Washington, Wicomico, or Worcester Counties.

Sections B through G of Regulation .08 apply to an owner or

operator of a major NOX source installation, except for

those sources covered under Secs. H and J, that meets the

NOX emission standards in Sec. C of this regulation or is

required to submit a RACT determination to MDE. Section H of this

regulation applies to owners or operators of a space heater, which is

defined in COMAR 26.11.09.01 as fuel burning equipment that consumes

more than 60% of its annual fuel use between October 31 of one year and

March 31 of the next. Section J applies to an owner or operator of fuel

burning equipment with a rated heat input capacity of 100 million

British thermal units (MMBtu) per hour or less. Sources subject to

Sec. H are not subject to Sec. J. Except for a source or modification

which is subject to new source review and/or prevention of significant

deterioration (NSR/PSD) and, therefore, subject to lowest achievable

emission rate (LAER) and/or best available control technology (BACT)

requirements, a person subject to this regulation may not construct a

new or replace an existing NOX source after May 8, 1995,

unless the source meets RACT as determined by MDE and approved by EPA.

COMAR 26.11.09.08.B NOX Control Requirements

All major sources of NOX, except those provided for in

Secs. H and J, are required to notify MDE that each installation will

comply by meeting the emission standards of Sec. C, or submit a

proposal with technical and economic support documentation for a case-

by-case RACT determination and a schedule to implement RACT no later

than May 31, 1995. In cases where the owner elects to comply with the

presumptive limits of Sec. C, the owner or operator is required to

submit: (1) Stack testing or continuous emission monitoring (CEM) data

to support that the source or unit already is in compliance with the

applicable limit, or (2) a plan for compliance. The plan for compliance

must include the control method, equipment purchase dates, construction

dates and a compliance date not later than May 31, 1995.

Notification to MDE and submittal of a RACT proposal and schedule

must have been made no later than July 1, 1993 by persons who own

electric generating plant equipment subject to Title IV, Phase I of the

Act. RACT proposals must include: (1) Identification of combustion

modifications, fuel conversions, or other modifications to be

implemented, (2) data and costs to support the proposed RACT standard,

(3) a demonstration that shows why the proposed standard is RACT for

the particular installation, the expected emissions reduction, and any

available emissions data for existing operating installations, and (4)

baseline NOX emissions for the installation established with

CEM data or stack test data taken during steady state operation. By

February 15, 1994, owners of sources subject to this regulation, other

than electric generating plant equipment subject to Title IV, must have

submitted a RACT proposal that identified combustion modifications,

fuel conversions, or other equipment or process modifications or

adjustments to reduce NOX emissions, and data that support

the proposed RACT standard.

COMAR 26.11.09.08.C Emission Standards

Maryland's proposed NOX RACT regulation contains

presumptive emission limits for major stationary sources of

NOX as follows: for gas fired wall and tangential units, 0.2

pounds of NOX per million British thermal units (lbs/MMBtu)

input; for oil/gas fired wall and tangential units, 0.25 lbs/MMBtu

input; for oil/gas fired cyclones, 0.43 lbs/MMBtu input; for dry bottom

coal fired wall and tangential units, 0.38 lbs/MMBtu input; for wet

bottom coal fired wall and tangential units, 1.0 lb/MMBtu input; and

for wet bottom coal fired cyclones, 0.55 lbs/MMBtu. All emission limits

are required to be met over a 24-hour averaging period.

EPA is proposing to approve the above emission limits as RACT for

those categories of boilers and steam generators referenced in

Sec. C(2). The 24 hour-averaging period for determining compliance is

consistent with protection of the short-term ozone NAAQS. EPA policy

for NOX RACT for four categories of utility boilers (wall-

and tangential-fired--gas/oil, coal dry bottom), were set in the

``NOX Supplement to the General Preamble for Implementation

of Title I'' (``NOX Supplement'') (57 FR 55620, November 25,

1992). Emission limits for other source categories are RACT for

NOX if comparable to RACT for these certain utility boilers.

Comparability is based upon emission reduction, cost and cost-

effectiveness. EPA has determined that the limits set in this

regulation for these same four categories of utility boilers as in the

NOX Supplement meet the requirement for RACT.

COMAR 26.11.09.08.D Emission Reduction Averaging (RACT Bubbles)

Section D allows sources to use an alternative method of compliance

by achieving an overall source or system-wide NOX emission

reduction that is equivalent to reductions achieved had RACT been

implemented on an individual installation basis. Section D permits MDE

to allow the inclusion of sources outside Maryland in an emissions

trade consistent with the policies of the EPA and the Ozone Transport

Commission. A source proposing to average NOX emissions must

maintain records for at least 3 years to demonstrate continuous

compliance with this regulation. Records must include daily hours of

operation, total daily production or fuel use, and an estimate of the

total daily emissions from the premises or system. Also, a RACT

proposal that involves fuel switching must be consistent with

[[Page 8036]]

fuel switching policies established by EPA. EPA's fuel switching policy

allows major coal fired facilities to switch to burning natural gas

during the ozone season (the summer months) and switch back to coal for

the rest of the year, provided that annual standards are met.

COMAR 26.11.09.08.E & F Compliance Date and Reporting Requirements

Major NOX source owners or operators must have complied

with RACT standards by May 31, 1995. Compliance with RACT requirements

should be based on CEM data collected in accordance with COMAR

26.11.09.10 and .11, which are consistent with EPA approved methods. If

the installation is stack tested, Method 7 must be used, and the

results must be submitted to MDE within 45 days after test completion.

COMAR 26.11.09.08.G Establishing Enforceable RACT Standards

RACT for NOX emissions must be established by MDE as a

condition to a permit or order, or in a regulation promulgated by MDE.

This provision requires that MDE submit each RACT determination to EPA

for approval as a revision to the Maryland SIP.

COMAR 26.11.09.08.H Requirements for Space Heaters

Section H establishes that a space heater owner or operator must

submit to MDE a list of the affected installations at each premises,

the types of fuel used, the monthly fuel consumption for each

installation for each calendar year beginning with 1989, and fuel use

summaries demonstrating that the 60% requirement, as explained in the

definition of space heater, is met. The owner or operator also must

develop an operating and maintenance plan to minimize NOX

emissions, based on equipment vendors recommendations and subject to

review by MDE, and must have implemented this plan by November 15,

1994. Operators are required to attend in-state training programs on

NOX reductions at least once every three years, and the

owner must maintain a record of training attendance for each operator

for no less than 6 years. These records should be made available to MDE

upon request. EPA interprets ``an operation and maintenance plan to

minimize NOX emissions based on recommendations from

equipment vendors,'' as stated in Sec. H(b), to mean only technically

supportable operation and maintenance requirements that result in the

equipment being operated, maintained and repaired in a manner that

achieves the minimization of NOX emissions.

Any fuel burning equipment that at any time after October 1, 1989

has not satisfied the conditions for a space heater, specified in COMAR

26.11.09.01.B(7), is subject to RACT as determined by MDE. The owner or

operator of this equipment must submit a RACT proposal to MDE for

approval not later than 60 days after the date when the equipment did

not qualify as a space heater. Also, a space heater owner or operator

must maintain monthly fuel consumption records on site for not less

than 3 years, and must make these records available to MDE upon

request.

COMAR 26.11.09.08.I General Requirements

Section I states that the owner or operator of a major

NOX source must provide emissions data, perform stack tests

and identify cost effective control methods at the request of MDE.

After implementing RACT according to this regulation, if a major

NOX source causes actual NOX emissions of 1 or

more tons per day, the owner must submit to MDE a description of

NOX emission reduction methods. This description must

outline measures to reduce NOX emissions beyond the level

achieved by implementing RACT according to this regulation, and must

consist of methods to reduce NOX emissions by 25, 50, and

75% from base year emissions beyond what was required by RACT in case

additional NOX reductions are determined to be necessary by

MDE. Also, except as provided in Sec. H, a person subject to this

regulation must maintain annual fuel use records on site for not less

than 3 years, and must make these records available to MDE upon

request.

COMAR 26.11.09.08.J Requirements for Fuel Burning Equipment With a

Rated Heat Input Capacity of 100 MMBtu/hr or Less

Section J establishes that, by May 8, 1995, the owner or operator

of fuel burning equipment with rated heat input capacity less than 100

MMBtu per hour must have submitted to MDE a list of each affected

installation, the rated heat capacity of each installation, and the

fuel used. Also, the monthly consumption of each fuel for each

installation for calendar year 1990 through 1993, and the results of

any stack tests performed must have been submitted to MDE. For

installations burning coal or residual oil, this section requires the

owner to have submitted to MDE a discussion of feasibility and cost of

switching to gas or No. 2 fuel oil. The owner or operator must also

have completed a combustion analysis by May 15, 1995 and repeat this

analysis annually, and operate the equipment at the optimum combustion

level based on this analysis. From July 1, 1995 through January 1,

1996, combustion analyses were to be performed quarterly. Analysis and

test results must be maintained for at least 2 years and be available

to MDE and EPA upon request. Operators are also required to attend

operator training on NOX reductions sponsored by MDE, EPA or

equipment vendors at least once every 3 years, and records of training

program attendance must be maintained and available for at least 6

years. Based on data from the Gas Research Institute, the

NOX Implementation Workgroup, and the Council of Industrial

Boiler Owners, MDE concluded that this section is acceptable as RACT

for fuel burning equipment with a heat capacity of 100 MMBtu/hr or

less. This is acceptable to EPA as RACT for these sources in Maryland.

III. EPA's Analysis

Emission Reduction Averaging

Section D does not specifically address most of the state program

requirements established for a discretionary Economic Incentive Program

(EIP) contained in 40 CFR Part 51 Subpart U. Section D therefore is not

sufficient to establish a generic emissions trading program--a program

under which each trading transaction does not have to be approved by

EPA as a SIP revision--because among other things it does not specify

procedures by which the alternative limits will be set. Such procedures

must demonstrate how an emissions trading program achieves overall

reductions equivalent to RACT implemented on a per unit basis. Section

D is not clear whether each emissions trading plan must be submitted to

EPA for approval as a SIP revision, which is required in the absence of

an EPA approved generic emissions trading program. However, Sec. D also

establishes minimum record keeping requirements for sources complying

through emissions trading not contained elsewhere in the Maryland SIP.

Any trading plans submitted as a separate SIP revisions do not need to

be authorized by any prior portion of the SIP as far as approval by EPA

is concerned. As a condition of this rulemaking, Maryland must revise

the trading provision in this regulation to comply with a discretionary

EIP or submit all emission trading plans as individual SIP revisions.

[[Page 8037]]

CEM Requirements

Section F does not clearly define which sources must use CEM and

which must stack test to demonstrate compliance, but the applicability

and record keeping requirements described in COMAR 26.11.01.10 and .11

pertain to this regulation. However, COMAR 26.11.01.11, referenced in

Sec. F to address CEM requirements, has not been submitted for

inclusion in the Maryland SIP. Except for those sources in an emissions

trading program which are covered under the record keeping provisions

of Sec. D, the record keeping requirements by which sources will

demonstrate compliance with this regulation are not established.

Maryland must either submit COMAR 26.11.01.11 to EPA for approval or

revise Sec. F in the NOX RACT rule to clearly explain the

reporting and record keeping requirements.

In a November 7, 1996 policy memo from Sally Shaver, Director, Air

Quality Strategies and Standards Division of OAQPS, EPA issued guidance

for approving state generic RACT regulations, like Maryland's, provided

certain criteria are met. This guidance does not exempt any major

source from RACT requirements but instead provides for a de minimis

deferral of RACT only for the purposes of approving the state's generic

RACT regulation. The de minimis deferral level is determined by using

the 1990 NOX emissions, excluding the utility boiler

NOX emissions. The remaining 1990 non-utility boiler

emissions are then compared with the amount of non-utility

NOX emissions that have yet to have RACT approved into the

SIP. Generally, EPA expects that all utility boiler RACTs will be

approved prior to application of this de minimis deferral policy and

possible conversion of the generic RACT conditional approval to full

approval. EPA does not expect to defer more than 5% of the emissions

calculated in this manner in order to fully approve Maryland's generic

NOX RACT regulation. In accordance with the November 1996

policy, EPA is requiring that all utility boiler RACT determinations be

approved by EPA and all but a de minimis level of non-utility boiler

RACT determinations be approved into the SIP before the limited

approval can be converted to full approval. Full approval of a generic

RACT regulation under this policy does not change the State's statutory

obligation to implement RACT for all major sources. No major

NOX source is being exempted from RACT requirements through

this policy or today's rulemaking.

Because EPA has not received SIP revisions of source-specific RACT

determinations for all major sources of NOX subject to RACT

under the Act, EPA can at best, according to the November 7, 1996

policy memorandum, propose conditional limited approval of the

NOX RACT generic rule. In support of this proposed

rulemaking, the State committed in a letter dated October 29, 1998 to

submit, as SIP revisions, RACT determinations for all sources subject

to NOX RACT within 12 months of EPA's final conditional

approval of the generic rule.

IV. Proposed Action

Because of the deficiencies discussed above, EPA cannot grant full

approval of Maryland's NOX RACT rule. EPA is proposing

conditional limited approval of COMAR 26.11.09.08 ``Control of

NOX Emissions from Major Stationary Sources,'' and is

proposing full approval of COMAR 26.11.09.01 ``Definitions'' which were

both submitted on June 8, 1993 with amendments submitted on July 11,

1995 as revisions to the Maryland SIP.

Terms of and Rationale for Conditional Approval

EPA cannot grant full approval of Maryland's NOX RACT

rule because not every major NOX source is covered by the

presumptive limits in Sec. C or RACT provisions in Secs. H and J.

Maryland has the option to submit individual RACT determinations as SIP

revisions, thus the RACT rule will not be approvable until all of its

components are approvable. Therefore, EPA is proposing conditional

approval of Maryland's NOX RACT regulations, based on the

State's commitment to submit for approval into the SIP, the case-by-

case RACT proposals for all sources subject to RACT requirements

currently known to MDE. Maryland submitted this commitment in a letter

to EPA, dated October 29, 1998.

To fulfill the condition of this approval the State of Maryland

must, by no later than 12 months after the effective date of EPA's

final conditional approval of the generic NOX RACT

regulation:

1. Certify that it has submitted case-by-case RACT SIPs for all

sources subject to the RACT requirements currently known to the

Department, or demonstrate that the emissions from any remaining

subject sources represent a de minimis level of emissions (as described

above);

2. Either submit COMAR 26.11.01.11 to EPA for approval, or revise

Sec. F to clearly explain the reporting and record keeping requirements

in COMAR 26.11.09.08;

3. Change Sec. D to unambiguously require all emissions trading

plans and proposals be submitted as individual SIP revisions, or meet

all the requirements of a discretionary EIP.

Once EPA has determined that the State has met these conditions,

EPA shall remove the conditional nature of its approval and the

Maryland NOX regulation SIP revision will, at that time,

retain limited approval status. Should the State fail to meet the

conditions specified above, the final conditional limited approval of

the Maryland NOX RACT regulation SIP revision shall convert

to a disapproval.

Rationale for Also Proposing Limited Approval

While EPA does not believe that the Maryland generic NOX

RACT regulation satisfies the Act's RACT requirements as discussed

previously in this notice, EPA is also proposing limited approval of

the Maryland generic RACT regulation on the basis that it strengthens

the Maryland SIP. After Maryland has fulfilled the conditions of this

rule and once EPA has approved all of the case-by-case RACT proposals

as SIP revisions, the limited approval will convert to full approval.

EPA is proposing conditional limited approval of the Maryland

NOX RACT regulation, COMAR 26.11.09.08. EPA is proposing

conditional limited approval of this SIP revision based upon the

commitment made by Maryland to submit all the case-by-case RACT

proposals for sources it is currently aware of as being subject to the

major source RACT regulations. In a letter dated October 29, 1998,

Maryland committed to submitting all RACT determinations for the major

NOX sources in the State, submitting COMAR 26.11.01.11, and

revising the trading rule in COMAR 26.11.09.08.D.

V. Administrative Requirements

A. Executive Orders 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

[[Page 8038]]

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

Executive Order 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 Executive Order 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 proposed rule is not subject to Executive Order 13045 because

it is not an economically significant regulatory action as defined by

Executive Order 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, E.O. 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

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

need to issue the regulation. In addition, E.O. 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 proposed rule will not have a significant impact on

a substantial number of small entities because conditional and limited

approvals of SIP submittals under sections 110 and 301, 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 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).

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 proposed 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.

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 proposed approval action of Maryland's

NOX RACT rule 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.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Nitrogen dioxide,

Ozone, Reporting and record keeping requirements.

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

Dated: February 9, 1999.

W. Michael McCabe,

Regional Administrator, Region III.

[FR Doc. 99-3996 Filed 2-17-99; 8:45 am]

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