The Department may not adopt regulations to implement Stage II of the Program for Volatile Organic Emissions Control from gasoline retailing operations unless:

            (1)      The Department is mandated by the United States Environmental Protection Agency;

            (2)      The Department is unable to find other control strategies; and

            (3)      The Environmental Protection Agency publishes notice in the Federal Register that the State of Maryland is not in compliance with the provisions of the Clean Air Act (42 U.S.C. §§ 7401 through 7602).