[Federal Register Volume 62, Number 196 (Thursday, October 9, 1997)]
[Rules and Regulations]
[Pages 52661-52666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26533]


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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

[[Page 52662]]

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

[[Page 52664]]

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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