[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]
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