[Federal Register Volume 63, Number 250 (Wednesday, December 30, 1998)]
[Proposed Rules]
[Pages 71815-71819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-34422]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AZ079; FRL-6212-5]
RIN 2060-A122
Approval and Promulgation of Implementation Plans; Arizona--
Maricopa Nonattainment Area; PM-10
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rulemaking.
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SUMMARY: EPA is proposing to approve under the Clean Air Act (CAA or
Act) a revision to the Arizona State Implementation Plan (SIP)
reflecting Arizona State legislation that provides for the expeditious
implementation of best management practices to reduce fugitive dust
from agricultural sources in the Maricopa County (Phoenix) PM-10
nonattainment area. Because EPA is proposing to approve the State
legislation as meeting the reasonably available control measure (RACM)
requirements of the Act, EPA is also proposing to withdraw a federal
implementation plan (FIP) commitment, promulgated under section 110(c)
of the Act, to adopt and implement RACM for agricultural fields and
aprons in the Maricopa area.
DATES: Written comments will be accepted until January 29, 1999.
ADDRESSES: Comments should be submitted (in duplicate, if possible) to:
John Ungvarsky, EPA Region 9, 75 Hawthorne Street (AIR2), San
Francisco, CA 94105, (Phone: 415-744-1286).
A copy of docket No. A-98-45, containing material relevant to EPA's
proposed action, is available for review at: EPA Region 9, Air
Division, 75 Hawthorne Street, San Francisco, CA 94105. Interested
persons may make an appointment with John Ungvarsky to inspect the
docket at EPA's San Francisco office on weekdays between 9 a.m. and 4
p.m.
A copy of docket no. A-98-45 is also available to review at the
Arizona Department of Environmental Quality, Library, 3033 N. Central
Avenue, Phoenix, Arizona 85012. (602) 207-2217.
Electronic Availability
This document is also available as an electronic file on EPA's
Region 9 Web Page at http://www.epa.gov/region09/air.
FOR FURTHER INFORMATION CONTACT: For questions and issues regarding
this proposed rulemaking contact, John Ungvarsky (415) 744-1286.
SUPPLEMENTARY INFORMATION:
I. Background
A. Clean Air Act Requirements
1. Designation and Classification
Portions of Maricopa County 1 are designated
nonattainment for the PM-10 national ambient air quality standards
(NAAQS) 2 and were originally classified as ``moderate''
pursuant to section 188(a) of the Clean Air Act (CAA or Act). 56 FR
11101 (March 15, 1991). On May 10, 1996, EPA reclassified the Maricopa
County PM-10 nonattainment area to ``serious'' under CAA section
188(b)(2). 61 FR 21372. Having been reclassified, Phoenix is required
to meet the serious area requirements in the CAA, including a
demonstration that best available control measures (BACM) will be
implemented by June 10, 2000. CAA sections 188(c)(2) and 189(b). While
the Phoenix PM-10 nonattainment area is currently classified as
serious, today's proposed actions relate only to the moderate area
statutory requirements.
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\1\ ``Maricopa,'' ``Maricopa County'' and ``Phoenix'' are used
interchangeably throughout this proposal to refer to the
nonattainment area.
\2\ There are two PM-10 NAAQS, a 24-hour standard and an annual
standard. 40 CFR 50.6. EPA promulgated these NAAQS on July 1, 1987
(52 FR 24672), replacing standards for total suspended particulate
with new standards applying only to particulate matter up to 10
microns in diameter (PM-10). At that time, EPA established two PM-10
standards. The annual PM-10 standard is attained when the expected
annual arithmetic average of the 24-hour samples for a period of one
year does not exceed 50 micrograms per cubic meter (g/
m\3\). The 24-hour PM-10 standard of 150 g/m\3\ is attained
if samples taken for 24-hour periods have no more than one expected
exceedance per year, averaged over 3 years. See 40 CFR 50.6 and 40
CFR part 50, Appendix K.
On July 18, 1997, EPA revised both the annual and the 24-hour
PM-10 standards and also established two new standards for PM, both
applying only to particulate matter up to 2.5 microns in diameter
(PM-2.5)(62 FR 38651). Today's proposed actions relate only to the
CAA requirements concerning the 24-hour and annual PM-10 standards
as originally promulgated in 1987.
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Pursuant to section 189(b)(2), the State of Arizona was required to
submit a serious area plan addressing both PM-10 NAAQS for the area by
December 10, 1997. The State has not yet submitted that plan.
[[Page 71816]]
2. Moderate Area Planning Requirements and EPA Guidance
The air quality planning requirements for PM-10 nonattainment areas
are set out in subparts 1 and 4 of Title I of the Clean Air Act. Those
states containing initial moderate PM-10 nonattainment areas were
required to submit, among other things, by November 15, 1991 provisions
to assure that reasonably available control measures (RACM) (including
such reductions in emissions from existing sources in the area as may
be obtained through the adoption, at a minimum, of reasonably available
control technology (RACT)) shall be implemented no later than December
10, 1993. CAA sections 172(c)(1) and 189(a)(1)(C).3 Since
that deadline has passed, EPA has concluded that the required RACM/RACT
must be implemented ``as soon as possible.'' Delaney v. EPA, 898 F.2d
687, 691 (9th Cir. 1990). EPA has interpreted this requirement to be
``as soon as practicable.'' See 55 FR 41204, 41210 (October 1, 1990)
and 63 FR 28898, 28900 (May 27, 1998).
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\3\ States with moderate PM-10 areas were also required to
submit either a demonstration that the plan would provide for
attainment as expeditiously as practicable but no later than
December 31, 1994 or a demonstration that attainment by that date is
impracticable (CAA section 189(a)(1)(B)); and, for plan revisions
demonstrating impracticability, a demonstration of reasonable
further progress (RFP) meeting the requirements of CAA sections
172(c)(2) and 171(1). Section 171(1) defines RFP as ``such annual
incremental reductions in emissions of the relevant air pollutant as
are required by part D of the Act or may reasonably be required by
the Administrator for the purpose of ensuring attainment of the
applicable national ambient air quality standard by the applicable
attainment date.''
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EPA has issued a ``General Preamble'' 4 describing EPA's
preliminary views on how the Agency intends to review state
implementation plans (SIPs) and SIP revisions submitted under Title I
of the Act, including those state submittals containing moderate PM-10
nonattainment area SIP provisions. The methodology for determining
RACM/RACT is described in detail in the General Preamble. 57 FR 13498,
13540-13541. With respect to PM-10, Appendix C1 of the General Preamble
suggests starting to define RACM with the list of available control
measures for fugitive dust and adding to this list any additional
control measures proposed and documented in public comments. Any
measures that apply to de minimis emission sources of PM-10 and any
measures that are unreasonable for technology reasons or because of the
cost of the control in the area can then be culled from the list. In
addition, potential RACM may be culled from the list if a measure
cannot be implemented on a schedule that would advance the date for
attainment in the area. 57 FR 13498, 13560. 57 FR 18070, 18072 (April
28, 1992).
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\4\ See ``State Implementation Plans; General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990,''
(General Preamble) 57 FR 13498 (April 16, 1992) and 57 FR 18070
(April 28, 1992).
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Moderate area plans were also required to meet the generally
applicable SIP requirements for reasonable notice and public hearing
under section 110(a)(2), necessary assurances that the implementing
agencies have adequate personnel, funding and authority under section
110(a)(2)(E)(i) and 40 CFR 51.280; and the description of enforcement
methods as required by 40 CFR 51.111 and EPA guidance implementing
these provisions.
B. EPA's Moderate Area PM-10 FIP for Phoenix
On August 3, 1998, EPA promulgated under the authority of CAA
section 110(c)(1) a federal implementation plan (FIP) to address the
CAA's moderate area PM-10 requirements for the Phoenix PM-10
nonattainment area. 63 FR 41326 (August 3, 1998).
In the FIP, EPA promulgated, among other things, for both the
annual and 24-hour PM-10 NAAQS, a demonstration that RACM will be
implemented in the Phoenix area as soon as practicable.5 As
part of its RACM demonstration, EPA promulgated an enforceable
commitment, codified at 40 CFR 52.127, to ensure that RACM for
agricultural sources will be expeditiously adopted and implemented. See
63 FR 41326, 41350.6
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\5\ In addition to the RACM demonstration, EPA also promulgated
a demonstration of reasonable further progress and a demonstration
that it was impracticable for the Phoenix area to attain either the
annual or 24-hour PM-10 NAAQS by the applicable attainment deadline
pursuant to CAA sections 172(c)(2) and 189(a)(1)(B). 63 FR 41326,
41340 and 41342.
\6\ 40 CFR 52.127 provides that ``[t]he Administrator shall
promulgate and implement reasonably available control measures
(RACM) pursuant to section 189(a)(1)(C) of the Clean Air Act for
agricultural fields and aprons in the Maricopa County (Phoenix) PM-
10 nonattainment area according to the following schedule: by no
later than September, 1999, the Administrator shall sign a Notice of
Proposed Rulemaking; by no later than April, 2000, the Administrator
shall sign a Notice of Final Rulemaking; and by no later than June,
2000, EPA shall begin implementing the final RACM.''
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II. Arizona Legislation for the Agricultural Sector
On May 29, 1998, Arizona Governor Hull signed into law Senate Bill
1427 (SB 1427) which revised title 49 of the Arizona Revised Statutes
(ARS) by adding section 49-457. This legislation establishes an
agricultural best management practices (BMPs) committee for the purpose
of adopting by rule by June 10, 2000, an agricultural general permit
specifying BMPs for regulated agricultural activities 7 to
reduce PM-10 emissions in the Maricopa PM-10 nonattainment area. ARS
49-457.A-F. BMPs are defined in subsection N.2 of section 49-457 as
``techniques verified by scientific research, that on a case by case
basis are practical, economically feasible and effective in reducing
PM-10 particulate emissions from a regulated agricultural activity.''
Subsection N.1 defines ``agricultural general permit'' to mean:
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\7\ ``Regulated agricultural activities'' are defined as
``commercial farming practices that may produce PM-10 particulate
emissions within the Maricopa PM-10 particulate nonattainment
area.'' ARS 49-457.N.4.
best management practices that: (a) reduce PM-10 particulate
emissions from tillage practices and from harvesting on a commercial
farm.[;] (b) reduce PM-10 particulate emissions from those areas of
a commercial farm that are not normally in crop production. [;] (c)
reduce PM-10 particulate emissions from those areas of a commercial
farm that are normally in crop production including prior to plant
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emergence and when the land is not in crop production.
Subsection M provides for the initiation of BMP implementation through
the commencement of an education program by June 10, 2000. Subsection H
requires the Arizona Department of Environmental Quality (ADEQ) to
submit to EPA a list of BMPs as a revision to the applicable
implementation plan within 60 days of their adoption.8
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\8\ It is not entirely clear from the language of subsection H
whether the statute requires the submittal to EPA of the general
permit, BMPs or both as an applicable implementation plan revision.
However, as long as either the BMPs or general permit are submitted,
once approved by EPA, the agricultural control measures will be
federally enforceable.
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The legislation specifies ADEQ's authority to enforce the general
permit through a series of compliance actions. ARS 49-457.I-K. However,
subsection G of section 49-457 also specifies that:
[n]otwithstanding subsections I, J and K of this section, a person
engaged in a regulated agricultural activity on the effective date
of this Act shall comply with the general permit as provided in
subsection H of this section by December 31, 2001. A person who
commences a regulated agricultural activity after December 31, 2000,
shall comply with the general permit within eighteen months of
commencing the activity.
On September 4, 1998, the State of Arizona submitted ARS 49-457 to
EPA
[[Page 71817]]
for inclusion in the Arizona SIP for the Phoenix PM-10 nonattainment
area as meeting the RACM requirements of CAA section 189(a)(1)(C) and
requested that the Agency approve that legislation in place of the FIP
commitment in 40 CFR 52.127.9 On October 27, 1998, EPA found
the submittal to be complete pursuant to EPA's completeness criteria
set forth in 40 CFR part 51, Appendix V.10
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\9\ Letter from Russell Rhoades, ADEQ, to Felicia Marcus, EPA,
regarding submittal of a state implementation plan revision:
agricultural best management practices; September 4, 1998.
\10\ Letter from David Howekamp, EPA, to Russell Rhoades, ADEQ,
regarding completeness determination; October 27, 1998.
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III. SIP Approval Criteria
Once a SIP submittal is deemed complete, EPA must next determine if
the submittal is approvable as a revision to the SIP. In the case of
the Arizona legislation, EPA must first determine whether ARS 49-457
meets the RACM requirements of CAA section 189(a)(1)(C) and EPA
guidance interpreting that provision. EPA must also determine that the
legislation meets the general SIP requirements described in section
I.A.2 above.
Finally, in order for EPA to approve the SIP revision, EPA must
determine that the SIP submittal complies with CAA section 110(l).
Section 110(l) states that the ``Administrator shall not approve a
revision of a plan if the revision would interfere with any applicable
requirement concerning attainment and reasonable further progress * * *
or any other applicable requirement of [the Clean Air] Act.'' EPA has
concluded that where previously-promulgated FIP elements that have been
found to comply with the applicable requirements of the Act, including
those provisions pertaining to attainment and RFP, are being replaced
by elements of a plan revision that EPA determines are substantially
equivalent, that plan revision would satisfy the requirements of
section 110(l).
IV. Evaluation of the Arizona Legislation
A. RACM and General SIP Requirements
As described in greater detail in section II above, ARS 49-457
requires that the agricultural BMPs committee established in the
legislation must adopt BMPs (to be embodied in a general permit) for
agricultural activities in the Maricopa PM-10 nonattainment area by
June 10, 2000. The legislation also requires the committee to commence
an education program by that date. As such, ARS 49-457 constitutes an
enforceable commitment by the State to undertake these activities.
Moreover, the legislation requires any person engaged in a regulated
agricultural activity to comply with the general permit by December 31,
2001.
As discussed in section I.B, on August 3, 1998, EPA promulgated a
moderate area PM-10 FIP for the Phoenix area that includes an
enforceable commitment to adopt and begin implementing RACM for the
agricultural sector by June 2000. In the proposed and final rules for
the FIP, EPA explained at length the Agency's reasons for promulgating
a commitment to adopt RACM in the future (rather than an immediately
effective regulation) and for its adoption and implementation schedule.
See 63 FR 15920, 15935-15937; 63 FR 41327, 41332-41334.
In general, EPA believes that because agricultural sources in the
United States vary by factors such as regional climate, soil type,
growing season, crop type, water availability, and relation to urban
centers, each PM-10 agricultural strategy is uniquely based on local
circumstances. Furthermore, EPA determined that the goal of attaining
the PM-10 standards in Maricopa County with respect to agricultural
sources would be best served by engaging all interested stakeholders in
a joint comprehensive process on the appropriate mix of agricultural
controls to implement in Maricopa County. EPA stated its belief that
this process, despite the additional time needed to work through it,
will ultimately result in the best and most cost-effective controls on
agricultural sources in the County.
In the FIP notices, EPA also explained its intention to meet its
RACM commitment by developing and promulgating BMPs. Given the number
of potential BMPs, the variety of crops types, the need for stakeholder
input, and the time necessary to develop the BMPs into effective
control measures, EPA believes that the adoption and implementation
schedule in the FIP is as expeditious as practicable and meets the
Act's 189(a)(1)(C) requirement.\11\
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\11\ In response to its FIP proposal, EPA received a number of
comments on the Agency's proposed commitment for the agricultural
sector. These comments included claims that a commitment would not
meet the CAA requirements and EPA guidance for enforceable measures
as expeditiously as practicable and that the proposed adoption and
implementation schedule was too protracted. The reader is referred
to 63 FR 41326, 41332-41334 for EPA's responses to these and other
comments on its commitment for agriculture.
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EPA has evaluated the Arizona legislation and concluded that its
requirements are substantially similar to those in the FIP commitment
for agriculture. To the extent that the State statute differs from the
FIP commitment, EPA believes that the former contains more substance
and greater procedural detail that better informs the BMP development,
adoption and implementation process. See, e.g., ARS 49-457.B, F, G and
M.
While ARS 49-457 does not use the term ``RACM,'' its definition of
BMPs is consistent with the criteria specified in the General Preamble.
Likewise, the formation of a BMP committee, the requirements for BMP
adoption and initiation of an educational program by June 10, 2000, and
the requirement for full compliance with the general permit by December
31, 2001 is consistent with the process and timing that EPA determined
in the FIP to represent expeditious implementation of RACM as required
by CAA section 189(a)(1)(C).
EPA has also concluded that subsection F of section 49-457 provides
the necessary assurances of adequate personnel and funding required by
CAA section 110(a)(2)(E)(i) to develop and adopt the required BMPs.\12\
In addition, ADEQ intends to fund the BMP rulemaking process through
its CAA section 105 grant. That funding will be used to cover
administrative costs of the BMP committee. The BMP general permit
program will be funded from the resources currently allocated to the
State's existing general permit program authorized under ARS 49-
426.H.\13\ EPA intends to assess the adequacy of the State's
enforcement program, including methods and long-term resources, in
connection with future rulemakings on the BMPs and/or general permit
submitted by the State for inclusion in the SIP. See footnote 8.
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\12\ Subsection F of ARS 49-457 provides that: ``[t]he
Department of Environmental Quality, the Department of Agriculture
and the College of Agriculture of the University of Arizona shall
cooperate with and provide technical assistance and any necessary
information to the committee. The Department of Environmental
Quality shall provide the necessary staff support and meeting
facilities for the committee.''
\13\ Attachment 3 to letter from Russell Rhoades to Felicia
Marcus; September 4, 1998.
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B. CAA Section 110(l)
As discussed in the previous section, EPA has determined that the
State legislation provides for the implementation of RACM for
agricultural sources as expeditiously as practicable. Therefore,
approval of the legislation and withdrawal of the FIP RACM commitment
will not interfere with the RACM requirements of CAA section
189(a)(1)(C).
As stated in footnote 5, EPA in the FIP promulgated a
demonstration, meeting the requirements of CAA section 189(a)(1)(B),
that the Phoenix area could
[[Page 71818]]
not practicably attain either the annual or 24-hour PM-10 NAAQS by the
applicable attainment deadline, December 31, 2001,\14\ with the
implementation of RACM.
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\14\ EPA has concluded that since the CAA moderate area
attainment deadline, December 31, 1994, in section 188(c)(1) has
passed and the Maricopa area has been reclassified, the only
attainment deadline currently applicable to the area is the serious
area deadline provided for in CAA section 188(c)(2); i.e,
achievement of attainment as expeditiously as practicable, but no
later than December 31, 2001. For a discussion of this conclusion
and an analysis of the issue, see 63 FR 15920, 15926.
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The Agency determined that, even assuming an unrealistic 100
percent control of emissions from agricultural sources subject to the
FIP commitment, simulated PM-10 concentrations are still over the
annual standard. Thus, EPA found, pursuant to CAA section 189(a)(1)(B),
that attainment of the annual PM-10 standard by December 31, 2001 is
impracticable with the implementation of RACM. 63 FR 41326, 41340.
With respect to timely attainment of the 24-hour standard, EPA
found that attainment at the evaluated monitoring sites would require
substantial reductions from agricultural sources. EPA concluded that
while reductions from agricultural sources are expected through the
future implementation of the federal BMPs, EPA could not currently
quantify the impact of these BMPs because they had yet to be developed.
Therefore it was not possible for the Agency to determine an expected
level of control. 63 FR 41326, 41341.
The BMPs developed pursuant to the Arizona legislation will be
adopted and implemented by the same process and consistent with the
schedule provided for in the FIP commitment for agricultural RACM.
Therefore, the approval of ARS 49-457 and the withdrawal of the FIP
commitment in 40 CFR 52.127 will not change the impracticability
demonstration in the FIP. As a result, that impracticability
demonstration will continue to meet the requirements of section
189(a)(1)(B). Thus EPA's proposed actions will not interfere under
section 110(l) with the attainment requirements of the CAA.
EPA has also concluded that approval of ARS 49-457 and withdrawal
of the FIP commitment will not interfere with the RFP requirements in
sections 172(c) and 171(1) of the CAA. For moderate PM-10 areas
demonstrating impracticability, EPA has determined that these statutory
requirements are met by a showing that the implementation of RACM has
resulted in incremental emission reductions below pre-implementation
levels. See, e.g., 63 FR 41326, 41342. In the FIP, EPA found that the
CAA's RFP requirements have been met for both the annual and 24-hour
PM-10 standards. See footnote 5. With respect to the annual standard,
EPA stated that:
in order to show annual reductions from 2000 to 2001, emission
reductions of more than 239 mtpy would need to result from the
implementation of the BMPs on agricultural sources. The projected
regional inventory for agricultural sources is 6,972 mtpy in 2001.*
* * The FIP rule will need to reduce emissions in this category by
slightly more than 3 percent in order to demonstrate annual
incremental reductions between 2000 and 2001.* * * EPA has every
confidence that such minimal reductions can be achieved.
63 FR 41326, 41343. With respect to the 24-hour standard, EPA found
that, assuming no emission reductions from agricultural sources, the
statutory RFP requirements were met at the evaluated monitoring sites.
Id.
Again, ARS 49-457 contains a commitment to implement RACM level
controls for agricultural sources consistent with the FIP commitment.
Therefore, the approval of ARS 49-457 and the withdrawal of the FIP
commitment in 40 CFR 52.127 will not change the RFP demonstrations in
the FIP. As a result, those RFP demonstrations will continue to meet
the requirements of sections 172(c) and 171(1). Thus EPA's proposed
actions will not interfere under section 110(l) with the RFP
requirements of the CAA.15
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\15\ For the reasons set forth in this section, EPA has also
concluded that its proposed actions will not interfere with any
applicable requirements of the CAA concerning the PM-2.5 standards.
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As the above analysis demonstrates, the State legislation is
substantially equivalent to the FIP provisions and, therefore, clearly
satisfies the requirements of section 110(l).
V. Proposed Actions
EPA has evaluated ARS 49-457 and has determined that it is
consistent with the CAA and EPA regulations. Therefore, EPA is
proposing to approve ARS 49-457 under section 110(k)(3) of the CAA as
meeting the requirements of sections 110(a) and 189(a)(1)(C).
Because EPA is proposing to approve the Arizona statute as meeting
the RACM requirements of the CAA for agricultural sources in the
Phoenix area, EPA is also proposing to withdraw the FIP RACM commitment
for such sources. Specifically, the Agency is proposing to delete
Sec. 52.127, Commitment to Promulgate and Implement Reasonably
Available Control Measures for the Agricultural Fields and Aprons, in
subpart D of part 52, chapter I, title 40 of the Code of Federal
Regulations. EPA believes that the approval of the State statute and
withdrawal of the FIP commitment gives preference to the State's
controls consistent with the CAA's intent that states have primary
responsibility for the control of air pollution within their borders.
CAA sections 101(a)(3) and 107(a).
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
VI. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, Regulatory Planning and
Review.
B. Executive Order 12875
Under Executive Order 12875, Enhancing the Intergovernmental
Partnership, 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, or
EPA consults with those governments. If EPA complies by consulting,
Executive Order 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 any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 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 proposed SIP approval and FIP withdrawal actions do not create
a mandate on state, local or tribal governments. The proposed actions
do not impose any enforceable duties on these entities. Accordingly,
the requirements of section 1(a) of Executive Order 12875 do not apply
to these proposed actions.
[[Page 71819]]
C. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have 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. These proposed actions are not
subject to Executive Order 13045 because they are not economically
significant as defined under Executive Order 12866 and do not involve
decisions intended to mitigate environmental health or safety risks.
D. Executive Order 13084
Under Executive Order 13084, Consultation and Coordination with
Indian tribal Governments, EPA may not issue a regulation that is not
required by statute, that significantly 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, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials 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
proposed actions do not significantly or uniquely affect the
communities of Indian tribal governments. Accordingly, the requirements
of section 3(b) of Executive Order 13084 do not apply to these proposed
actions.
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. These proposed actions will not have a significant
impact on a substantial number of small entities because SIP approvals
under section 110 and subchapter I, part D of the Clean Air Act do not
create any new requirements but simply approve requirements that the
State is already imposing. Therefore, because these proposed actions do
not create any new requirements, I certify that these proposed actions
will not have a significant economic impact on a substantial number of
small entities. Moreover, due to the nature of the Federal-State
relationship under the Clean Air Act, preparation of flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co., v.
U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
F. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to State, local, or tribal governments in the aggregate;
or to private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that these proposed actions do 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. These proposed actions approve
pre-existing requirements under State or local law and withdraw Federal
requirements, and impose no new requirements. Accordingly, no
additional costs to State, local, or tribal governments, or to the
private sector, result from these proposed actions.
G. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Pub L. No. 104-113, Sec. 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
These federal actions do not involve technical standards. Therefore,
EPA did not consider the use of any voluntary consensus standards.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Particulate
matter.
Dated: December 22, 1998.
Carol M. Browner,
Administrator.
[FR Doc. 98-34422 Filed 12-29-98; 8:45 am]
BILLING CODE 6560-50-P