Federal Register / Vol. 62, No. 184 / Tuesday, September 23, 1997 / Rules and Regulations 49611

Authority: 42 U.S.C. 7401–7671q.

Subpart U—Maine

2. Section 52.1020 is amended by

adding paragraph (c)(44) to read as

follows:

§ 52.1020 Identification of plan.

* * * * *

(c) * * *

(44) Revisions to the State

Implementation Plan submitted by the

Maine Department of Environmental

Protection on October 11, 1996.

(i) Incorporation by reference.

(A) Letter from the Maine Department

of Environmental Protection dated

October 11, 1996 submitting a revision

to the Maine State Implementation Plan.

(B) Chapter 141 of the Maine

Department of Environmental Protection

Air Regulation entitled, ‘‘Conformity of

General Federal Actions,’’ effective in

the State of Maine on September 28,

1996.

3. In § 52.1031 Table 52.1031 is

amended by adding a new entry for state

citation Chapter 141: General

Conformity Rule to read as follows:

§ 52.1031 EPA-approved Maine

regulations.

* * * * *

TABLE 52.1031.—EPA-APPROVED RULES AND REGULATIONS

State citation Title/subject

Date

adopted

by State

Date approved by

EPA

Federal Register citation 52.1020

* * * * * * *

141 ........... Conformity of General Federal Actions.9/11/96 September

23, 1997.

62 FR 49611 .............................. (c)(44) ‘‘Chapter 141: Conformity of

General Federal Actions’’.

* * * * * * *

[FR Doc. 97–25230 Filed 9–22–97; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[MD 039–3019; FRL–5896–1]

Approval and Promulgation of Air

Quality Implementation Plans;

Maryland; 15% Rate of Progress Plan

for the Maryland Portion of the

Metropolitan Washington, D.C. Area

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is granting conditional

approval of the State Implementation

Plan (SIP) revision submitted by the

State of Maryland, for the Maryland

portion of the Metropolitan Washington,

D.C. serious 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 (62 FR 40938). This action

is being taken under section 110 of the

Clean Air Act.

EFFECTIVE DATE: This final rule is

effective on October 23, 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:

donahue.carolyn@epamail.epa.gov.

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 Metropolitan

Washington, D.C. area is classified as a

serious ozone nonattainment area and is

subject to the 15% plan requirement.

The Metropolitan Washington, D.C.

ozone nonattainment area consists of

the entire District of Columbia (‘‘the

District’’), five counties in the Northern

Virginia area and five counties in

Maryland. The Maryland portion

consists of Calvert, Charles, Frederick,

Montgomery and Prince George’s

Counties.

Virginia, Maryland, and the District

all must demonstrate reasonable further

progress for the Metropolitan

Washington, D.C. nonattainment area.

These three jurisdictions, in conjunction

with municipal planning organizations,

collaborated on a coordinated 15% plan

for the nonattainment area. This was

done with the assistance of the regional

air quality planning committee, the

Metropolitan Washington Air Quality

Committee (MWAQC), and the local

municipal planning organization, the

Metropolitan Washington Council of

Governments (MWCOG), to ensure

coordination of air quality and

transportation planning.

The State of Maryland submitted the

15% plan SIP revision for the Maryland

portion of the Metropolitan Washington,

D.C. nonattainment area on July 12,

1995. On June 5, 1997, EPA published

a notice of proposed rulemaking (NPR)

in the Federal Register proposing

conditional approval of the 15% plan

(62 FR 30821). EPA’s rationale for

granting conditional approval to this

Maryland 15% plan, and the details of

the July 12, 1995 submittal are

contained in the June 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 June 5, 1997 NPR from the Sierra

Club Legal Defense Fund (SCLDF). The
49612 Federal Register / Vol. 62, No. 184 / Tuesday, September 23, 1997 / Rules and Regulations

following discussion summarizes and

responds to the comments received.

Comment 1

SCLDF commented that the Maryland

15% plan must be disapproved because

it failed to produce the 15% emission

reduction of 60.7 tons/day identified in

the plan as prescribed by section

182(b)(1)(A)(I) of the Act. EPA’s

argument that it believes that

Maryland’s required 15% reduction

‘‘may be lower than the 56.4 tons per

day’’ is flawed. EPA took no action on

6.3 tons of additional measures.

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 Maryland

portion of the Metropolitan Washington,

D.C. nonattainment area may be lower

than the 60.7 tons/day estimated in the

July 12, 1995 SIP submittal 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 for

the 1996–1999 time period (known as

the Post-1996 plan). Maryland has held

a public hearing on this SIP, 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 meet this

condition to document that the amount

of reduction needed to meet the 15%

requirement is less than 56.4 tons/day,

and submitted such commitment in

writing on July 3, 1997.

Comment 2

SCLDF 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. SCLDF states that

allowing such credit violates section

182(b)(1)(C) of the Act. SCLDF further

commented that EPA cannot lawfully

base SIP decisions on unpromulgated

rules because it does not know what

these final rules will say. SCLDF

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. SCLDF 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 2

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 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.

Sec. 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
Federal Register / Vol. 62, No. 184 / Tuesday, September 23, 1997 / Rules and Regulations 49613

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.

Comment 3

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 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 3

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 even

thousands of modeling input and output

runs needed to evaluate the mobile

source-related portions of the 15% rateof-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 4

SCLDF 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 4

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 5

SCLDF 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, SCLDF claimed that

postponing a requirement for reasonable

further progress until after the deadline

for attainment would be unlawful.

Response 5

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,
49614 Federal Register / Vol. 62, No. 184 / Tuesday, September 23, 1997 / Rules and Regulations

EPA states it will credit Maryland’s testonly 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 6

SCLDF 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. SCLDF

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 postNovember 1996 fleet turnover benefits.

Consequently, EPA must deny the postNovember 1996 Tier I credit and require

states to adopt emission reductions to

compensate for post-1996 growth in

vehicle miles traveled (VMT).

SCLDF 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-ofprogress plans, particularly because the

Post-1996 plans involve potential NOX

substitution that is not permitted in the

VOC-only 15% plans.

Response 6

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 flexibility to enact testand-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 Maryland portion

of the Metropolitan Washington, D.C.

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 7

SCLDF 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
Federal Register / Vol. 62, No. 184 / Tuesday, September 23, 1997 / Rules and Regulations 49615

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 Maryland 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 7

EPA’s proposed approval of the

Maryland 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 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 Maryland’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 Maryland 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 June 5, 1997 NPR,

that, on its face, the 15% plan for the

Maryland portion of the Metropolitan

Washington, D.C. nonattainment area

achieves the required 15% VOC

emission reduction to meet Maryland’s

portion of the regional multi-state plan

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 Maryland’s submittal

contains enough of the required

structure to warrant conditional

approval. EPA cannot grant full

approval of the Maryland 15% rate-ofprogress plan under section 110(k)(3)

and Part D of the Clean Air Act. Instead,

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 June 5, 1997 NPR listed the

conditions that Maryland must meet in

order to convert the conditional

approval to full approval. In a July 3,

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

September 23, 1998:

1. Maryland’s 15% plan must be

revised to account for growth in point

sources from 1990–1996.

2. Maryland must meet the conditions

listed in the October 31, 1996 proposed

conditional I/M rulemaking notice, and

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 Percent VOC

Reductions from I/M in 1999—

Supplemental Guidance’’, memorandum

from Gay MacGregor and Sally Shaver,

dated December 23, 1996.

3. Maryland must remodel to

determine affirmatively the creditable

reductions from RFG, and Tier 1 in

accordance with EPA guidance.

4. Maryland must submit a SIP

revision amending the 15% plan with a

demonstration using appropriate

documentation methodologies and

credit calculations that the 56.4 tons/

day reduction, supported through

creditable emission reduction measures

in the submittal, satisfies Maryland’s

15% ROP requirement for the

Metropolitan Washington, D.C.

nonattainment 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 Maryland

portion of the Metropolitan Washington,

D.C. 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 Maryland 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 the 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.
49616 Federal Register / Vol. 62, No. 184 / Tuesday, September 23, 1997 / Rules and Regulations

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 stateenforceability. 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

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 Maryland portion of the

Metropolitan Washington D.C. serious

ozone nonattainment area, must be filed

in the United States Court of Appeals

for the appropriate circuit by November

24, 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,

Incorporation by reference, Ozone.

Dated: September 12, 1997.

W. Michael McCabe,

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 (b) to read as follows:

§ 52.1072 Conditional approval.

* * * * *

(b) The State of Maryland’s July 12,

1995 submittal for the 15 Percent Rate

of Progress Plan (15% plan) for the

Maryland portion of the Metropolitan

Washington, DC ozone nonattainment

area, is conditionally approved based on

certain contingencies. The conditions

for approvability are as follows:

(1) Maryland’s 15% plan must be

revised to account for growth in point

sources from 1990–1996.

(2) Maryland must meet the

conditions listed in the October 31,

1996 proposed conditional I/M

rulemaking notice, 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 Percent VOC Reductions from I/M in

1999—Supplemental Guidance,’’

memorandum from Gay MacGregor and

Sally Shaver, dated December 23, 1996.

(3) Maryland must remodel to

determine affirmatively the creditable

reductions from RFG, and Tier 1 in

accordance with EPA guidance.

(4) Maryland must submit a SIP

revision amending the 15% plan with a

demonstration using appropriate

documentation methodologies and

credit calculations that the 56.4 tons/

day reduction, supported through

creditable emission reduction measures

in the submittal, satisfies Maryland’s

15% ROP requirement for the
Federal Register / Vol. 62, No. 184 / Tuesday, September 23, 1997 / Rules and Regulations 49617

Metropolitan Washington, DC

nonattainment area.

[FR Doc. 97–25228 Filed 9–22–97; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[Region 2 Docket No. NY24–2–172b, FRL–

5892–5]

Approval and Promulgation of

Implementation Plans; Reasonably

Available Control Technology for

Oxides of Nitrogen for Specific

Sources in the State of New York

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: The EPA is announcing

approval of three (3) revisions to the

State Implementation Plan (SIP) for

ozone submitted by the State of New

York. These revisions consist of sourcespecific reasonably available control

technology (RACT) determinations for

controlling oxides of nitrogen (NOX)

from these sources in New York. The

intended effect of this action is to

approve the source-specific RACT

determinations made by New York in

accordance with State provisions. This

action is being taken in accordance with

section 110 of the Clean Air Act (the

Act).

DATES: This rule is effective on

November 24, 1997 unless adverse or

critical comments are received by

October 23, 1997. If the effective date is

delayed, timely notice will be published

in the Federal Register.

ADDRESSES: All comments should be

addressed to: Ronald J. Borsellino,

Chief, Air Programs Branch,

Environmental Protection Agency,

Region 2 Office, 290 Broadway, New

York, New York 10007–1866.

Copies of the State submittals are

available at the following addresses for

inspection during normal business

hours:

Environmental Protection Agency,

Region 2 Office, Air Programs Branch,

290 Broadway, 25th Floor, New York,

New York 10007–1866.

New York Department of Environmental

Conservation, Division of Air

Resources, 50 Wolf Road, Albany,

New York 12233.

Environmental Protection Agency, Air

and Radiation Docket and Information

Center, Air Docket (6102), 401 M

Street, SW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Ted

Gardella or Rick Ruvo, Air Programs

Branch, Environmental Protection

Agency, 290 Broadway, 25th Floor, New

York, New York 10007–1866, (212) 637–

4249.

SUPPLEMENTARY INFORMATION:

A. Background

The air quality planning requirements

for the reduction of NOX emissions

through RACT are set out in section

182(f) of the Act. Section 182(f)

requirements are described by EPA in a

Federal Register, ‘‘State Implementation

Plans; Nitrogen Oxides Supplement to

the General Preamble; Clean Air Act

Amendments of 1990 Implementation of

Title I; Proposed Rule,’’ published

November 25, 1992 (57 FR 55620). The

November 25, 1992 Federal Register

should be referred to for detailed

information on the NOX requirements.

Additional guidance memoranda which

have been released subsequent to the

NOX Supplement should also be

referred to.

The EPA has defined RACT as the

lowest emission limitation that a

particular source is capable of meeting

by the application of control technology

that is reasonably available considering

technological and economic feasibility

(44 FR 53762, September 17, 1979).

Section 182(f) of the Act requires

states within ozone nonattainment areas

classified moderate or above or areas

within the ozone transport region to

apply the same requirements to major

stationary sources of NOX ‘‘major’’ as

defined in section 302 and section

182(c), (d), and (e)) as are applied to

major stationary sources of volatile

organic compounds (VOCs). For more

information on what constitutes a major

source, see section 2 of the NOX

Supplement to the General Preamble.

Section 182(b)(2) requires submittal of

RACT rules for major stationary sources

of VOC emissions (not covered by a preenactment control technique guidelines

(CTG) document or a post-enactment

CTG document) by November 15, 1992.

There were no NOX CTGs issued before

enactment and EPA has not issued a

CTG document for any NOX sources

since enactment. States, in their RACT

rules, are expected to require final

installation of the actual NOX controls

by May 31, 1995 from those sources for

which installation by that date is

practicable.

States within the Northeast ozone

transport region established by section

184(a) should have revised their SIPs to

include the RACT measures by

November 15, 1992. Because major

sources in states in an ozone transport

region are generally subject to at least

the same level of control as sources in

moderate ozone nonattainment areas,

EPA believes that the schedule for

implementing these RACT rules in the

ozone transport region should be

consistent with the requirements of

section 182(b)(2) which requires the

state to provide for implementation of

the actual NOX controls as expeditiously

as practicable but no later than May 31,

1995. Based on sections 182(f)and

184(a) and (b), New York is required to

apply the NOX RACT requirements

Statewide.

B. New York’s NOX RACT Regulations

New York held public hearings in

April 1993 on 6 NYCRR subpart 227–2,

the State’s NOX RACT plan entitled

‘‘Reasonably Available Control

Technology For Oxides of Nitrogen

(NOX RACT)—Stationary Combustion

Installations.’’ Following the public

hearings and the comment period, the

plan was adopted and signed on January

19, 1994. On January 20, 1994, the plan

was submitted to EPA as a revision to

the SIP and EPA found it to be

administratively and technically

complete on April 15, 1994. Proposed

EPA action on the January 20, 1994

submittal is expected to be published in

the Federal Register soon.

C. Case-by-Case RACT Determinations

Provisions within subpart 227–2

establish a procedure for a case-by-case

determination of what represents RACT

for an item of equipment or source

operation. This procedure is applicable

in two situations: (1) If the major NOX

facility contains any source operation or

item of equipment of a category not

specifically regulated in subpart 227–2,

or (2) if the owner or operator of a

source operation or item of equipment

of a category that is regulated in subpart

227–2 seeks approval of an alternative

maximum allowable emission limit.

Subpart 227–2 requires the owners

and/or operators of the affected facility

to submit either a RACT proposal if they

are not covered by specific emission

limitations or a request for an

alternative maximum allowable

emission limit if they are covered by

specific emission limitations. For each

situation, the owners/operators must

include a technical and economic

feasibility analysis of the possible

alternative control measures. RACT

determinations for an alternative

maximum allowable emission limit

must consider alternative control

strategies (i.e., system wide averaging

and fuel switching) in addition to

considering control technologies (e.g.,

low NOX burners). In either case,

subpart 227–2 provides for New York to