[Federal Register Volume 64, Number 16 (Tuesday, January 26, 1999)]
[Proposed Rules]
[Pages 3896-3901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1760]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-6225-5]


Approval and Promulgation of Implementation Plans; State of 
Kansas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Kansas City ozone maintenance area experienced a violation 
of the National Ambient Air Quality Standard (NAAQS) for ozone in 1995. 
In response to this violation, Kansas submitted revisions to its ozone 
maintenance plan. These revisions pertain to the implementation of 
control strategies to achieve reductions in volatile organic compound 
(VOC) emissions within the Kansas portion of the Kansas City ozone 
maintenance area. A major purpose of these revisions is to provide a 
more flexible approach to maintenance of acceptable air quality levels 
in Kansas City, while achieving emission reductions equivalent to those 
required by the previously approved plan.
    The EPA is proposing to conditionally approve the 1998 revisions to 
the Kansas City ozone maintenance plan as a revision to the Kansas 
State Implementation Plan (SIP). Final approval is contingent upon 
Kansas' submission of additional, enforceable control measures.
    In a separate Federal Register notice published today, the EPA is 
also proposing conditional approval of a similar plan submitted by the 
Missouri Department of Natural Resources to address the Missouri 
portions of the ozone maintenance area.


[[Page 3897]]


DATES: Comments on this proposed rule must be received in writing on or 
before February 25, 1999.

ADDRESSES: Comments may be mailed to Royan Teter, Environmental 
Protection Agency, Air Branch, 726 Minnesota Avenue, Kansas City, 
Kansas 66101. The state submittal and the EPA-prepared technical 
support document are available for public review at the above address.

FOR FURTHER INFORMATION CONTACT: Royan Teter at (913) 551-7609.

SUPPLEMENTARY INFORMATION:

I. Background

    The Kansas City metropolitan area (KCMA), consisting of Clay, 
Platte, and Jackson Counties in Missouri, and Johnson and Wyandotte 
Counties in Kansas, was designated nonattainment for ozone in 1978. The 
Clean Air Act (CAA) provides for areas with a prescribed amount of air 
quality data showing attainment of the standard to be redesignated from 
nonattainment to attainment, if the requirements of section 
107(d)(3)(E) are met. One of these requirements is for the area to 
adopt a maintenance plan consistent with the requirements of section 
175A. This plan must demonstrate attainment of the NAAQS with a margin 
of safety sufficient to remain in attainment for ten years. Also, the 
plan must contain a contingency plan to be implemented if the area once 
again violates the standard.
    Ozone monitoring data from 1987 through 1991 demonstrated that the 
Kansas City nonattainment area had attained the ozone NAAQS. In 
accordance with the CAA, the Kansas Department of Health and 
Environment (KDHE) revised the ozone SIP for the Kansas portion of the 
Kansas City area to recognize the area's attainment status. The EPA 
published final approval of the Kansas SIP on June 23, 1992. The SIP 
became effective on July 23, 1992 (57 FR 27939). This action effected 
the redesignation of the area to attainment.
    The contingency plan approved as part of the 1992 SIP identified 
four measures which were to be implemented upon subsequent violation of 
the standard in the Kansas City area. These contingency measures 
required: (1) certain new or expanding sources of ozone precursors to 
acquire emissions offsets; (2) the installation of Stage II vapor 
recovery systems at retail gasoline stations or the implementation of 
an enhanced inspection and maintenance (I/M) program for motor 
vehicles; (3) the implementation of transportation control measures 
achieving a 0.5 percent reduction in areawide VOC emissions; and (4) 
the completion of a comprehensive emissions inventory.
    In a letter from Dennis Grams, EPA Region VII Administrator, to 
James J. O'Connell, KDHE Secretary, on January 31, 1996, the EPA 
informed the KDHE of a violation of the ozone NAAQS. Quality-assured 
air quality monitoring data indicated measured exceedances of the ozone 
standard on July 11, 12, and 13, 1995, at the Liberty monitoring site 
in Kansas City. The highest recorded value for each day was 0.128 ppm, 
0.161 ppm, and 0.131 ppm, respectively. These exceedances, in 
combination with the measured exceedance of 0.128 ppm recorded on July 
29, 1993, constitute a violation of the standard.
    As a result of this violation, Kansas was required to implement the 
contingency measures identified in the approved SIP. In a July 28, 1995 
letter from Roger Randolph (Air Pollution Control Program Director) to 
William Spratlin (Air, RCRA, and Toxics Division Director), Missouri 
requested guidance on responding to the KCMA ozone violation. 
Specifically, Missouri requested flexibility in utilizing control 
measures other than those identified in the approved SIP. Via an August 
17, 1995, letter from William Spratlin to Roger Randolph, the EPA 
affirmed that Missouri and Kansas may substitute other contingency 
measures for those in the approved SIP, provided: (1) the substitute 
measures would achieve substantially equivalent emission reductions; 
(2) the substitute measures were submitted as a SIP revision; and (3) 
the substitute measures were implemented before the 1996 ozone season. 
It must be emphasized that this flexibility was extended to both Kansas 
and Missouri.
    To address the short-term need to control emissions, Kansas 
promulgated a rule to limit the Reid Vapor Pressure (RVP) of the 
gasoline sold during the summer months in the KCMA to 7.2 per square 
inch (psi) (K.A.R. 28-19-79). This regulation became effective May 2, 
1997. The EPA published final approval of Kansas' RVP rule on July 7, 
1997 (Federal Register Vol. 62, No. 129, 36212). The approval became 
effective on August 6, 1997.
    To address the longer-term need to reduce VOC and nitrogen oxides 
(NOX) emissions, the Mid-America Regional Council's Air 
Quality Forum (MARC AQF), comprised of representatives from local 
governments, business, and health and environmental organizations, 
agreed to examine various alternative control strategies and recommend 
a suite of viable measures to Missouri and Kansas. The AQF recommended: 
(1) expanding public education efforts; (2) low RVP gasoline; (3) motor 
vehicle I/M, (4) seasonal no-fare public transit; (5) a voluntary clean 
fuel fleets program; and (6) additional transportation control 
measures. The AQF also recommended a group of supplemental measures 
aimed at reducing ozone levels. The emissions reductions associated 
with the voluntary measures, specifically clean fuel fleets and 
transportation control, cannot be quantified due to their voluntary 
nature.
    The Missouri Department of Natural Resources (MDNR) presented a 
maintenance SIP, with the AQF recommendations, to the Missouri Air 
Conservation Commission (MACC) on June 24, 1997. At that time, the MACC 
recommended inclusion of a more timely and less politically sensitive 
control measure in place of the I/M provision. As a result, on October 
7, 1997, the AQF recommended the implementation of a reformulated 
gasoline (RFG) program in the KCMA. In response, Kansas intends to 
include RFG as a control measure in a year 2000 transitional attainment 
plan to demonstrate compliance with the revised NAAQS for ozone, should 
the area be eligible for transitional nonattainment status outlined in 
the President's July 16, 1997, directive to Administrator Browner. The 
intent is to have the RFG control measure in place prior to the 
beginning of the 2001 ozone season. Kansas reserves the option to use 
gasoline blends other than the Federal RFG blend, provided their use 
achieves similar VOC and NOX emission reductions.
    The final state submittal includes an emissions inventory; the two 
creditable control strategies--7.2 RVP gasoline, RFG; additional 
unquantifiable measures including voluntary clean fuel fleets and 
seasonal low-fare transit; continued monitoring; verification of 
continued attainment; and a contingency plan.
    Because limiting the RVP of gasoline to 7.2 psi achieves VOC 
emissions reductions of only 4.0 tons per day, additional reductions 
are necessary to provide for reductions substantially equivalent to 
those obtainable by implementing the contingency measures approved in 
the 1992 SIP. The implementation of an RFG program is therefore 
critical to meeting Kansas' obligation to achieve the necessary 
reductions.

II. Evaluation Criteria

    To evaluate the maintenance plan, the EPA referred to requirements 
of section 175A of the Act. The EPA also issued guidance specifically 
to address applicable procedures for handling

[[Page 3898]]

redesignation requests, including maintenance plan provisions 
``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' John Calcagni, Director, Air Quality Management Division, 
to EPA Regional Division Directors, dated September 4, 1992. In 
addition, the EPA reviewed the revised maintenance plan for evidence 
that the substitute control measures provide for emissions reductions 
which are substantially equivalent to those approved in the 1992 SIP, 
pursuant to guidance given in the August 17, 1995, letter, from William 
Spratlin to Roger Randolph. Finally, the EPA evaluated the revised 
maintenance plan with respect to the ``Guidance for Implementing the 1-
Hour Ozone and Pre-Existing PM10 NAAQS,'' from Richard D. 
Wilson, Acting Assistant Administrator for Air and Radiation, to EPA 
Regional Administrators.

III. Review of Submittal

    According to the September 4, 1992, memo from John Calcagni 
regarding ``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' a maintenance plan must provide for maintenance of the 
ozone NAAQS for at least ten years after redesignation. Section 175A of 
the CAA defines the general framework of a maintenance plan. The 
Calcagni memo identifies the following list of core provisions 
necessary to ensure maintenance of the ozone NAAQS: emissions 
inventory, maintenance demonstration (including control measures), air 
monitoring network, verification of continued attainment, and a 
contingency plan. Below is a discussion of each of these provisions, as 
addressed in the 1998 Revision to the Kansas City State Implementation 
Plan for Control of Ozone.

A. Emissions Inventory

    The emissions inventory for the KCMA was revised in 1995. In a 
direct final rule (61 FR 18251), published on April 25, 1996, the EPA 
approved the revised emissions inventory. The emissions inventory 
estimated VOC and NOX actual emissions for 1990 and 1992 
while using industrial growth factors to project VOC and NOX 
emissions for 1995, 2000, 2005, and 2010. Point, area, mobile, 
biogenic, VOC, and NOX emission totals were estimated. The 
inventory summarized totals for each emissions category and reported 
emissions by source type. VOC emissions for the entire KCMA were 
estimated at 322,557 and 286,279 kilograms per summer day in 1990 and 
1992, respectively. The present SIP revisions are based on the 
inventory as revised in 1995.

B. Control Measures

    The state has provided estimates of the achievable emissions 
reductions for only two of the many measures (7.2 RVP gasoline and RFG) 
included in the SIP. These estimates were evaluated to determine 
whether they are substantially equivalent to the reductions for which 
the 1992 SIP provides. In accord with the original maintenance plan, 
implementation of a regulation requiring Stage II vapor recovery 
systems at retail gasoline stations would result in daily VOC emissions 
reductions of 6.9 tons per day. An additional 1.5 tons per day of VOC 
reductions would be achieved through implementation of transportation 
control measures, making the 1992 SIP designed to reduce VOC emissions 
by a minimum of 8.4 tons per day. Accordingly, Kansas must demonstrate 
the substitute control measures will provide for areawide VOC 
reductions of at least 8.4 tons per day.
1. Gasoline Volatility Control
    Typically reported as RVP, volatility is a measure of the tendency 
of gasoline to evaporate. RVP, expressed in psi, denotes the pressure 
exerted by a vapor at 100 deg.F. The evaporation of gasoline adds to 
the quantity of VOCs in the atmosphere which contribute to ozone 
formation.
    As a result of the ozone violation in 1995, Kansas promulgated a 
rule to limit the summertime RVP of gasoline sold in the Kansas portion 
of the KCMA to 7.2 psi (K.A.R. 28-19-79). This regulation became 
effective May 2, 1997. The EPA published final approval of Kansas' RVP 
rule on July 7, 1997 (Federal Register Vol. 62, No. 129, 36212). The 
approval became effective on August 6, 1997.
    Emissions estimates for on-road mobile sources were developed using 
the EPA MOBILE5a model. Evaporative emissions from off-road mobile 
sources were estimated to decrease by 2.7 percent, assuming 90 percent 
of the off-road emissions are combustive and 10 percent are 
evaporative. Kansas has demonstrated that limiting the volatility of 
gasoline to 7.2 pounds psi will reduce VOC emissions by 4.0 tons per 
day within the KCMA.
2. RFG
    RFG is a blend of gasoline containing oxygenates and lower levels 
of toxic substances. It is designed to reduce emissions of pollutants, 
including VOC from motor vehicle exhaust. RFG contains many of the same 
ingredients found in conventional gasoline, but in different 
quantities. The addition of oxygenates, such as ethanol or methyl 
tertiary butyl ether, increases its oxygen content and thereby 
increases the combustion efficiency of the vehicle. The evaporative 
emissions can also be reduced depending on the RVP of the base gasoline 
to which the oxygenates are added.
    The RVP requirement for RFG in Kansas, as defined in 40 CFR 
80.71(a), is 7.2 psi. Emission reductions from RFG were modeled using 
the EPA's MOBILE5a emissions model and estimates of the number of 
vehicle miles traveled in the KCMA. Emissions are projected to be 96.65 
tons per day in 2000. After implementation of 7.2 RVP, the emissions in 
2000 are projected to be reduced to 89.22 tons per day. If RFG were to 
be implemented in 2000, emissions are projected to be reduced to 74.88, 
for an estimated incremental reduction of 14.34 tons per day.
    As part of this proposed SIP revision, the KDHE commits to include 
RFG as a control measure in its year 2000 transitional plan as required 
to demonstrate compliance with the revised ozone NAAQS. The intent is 
to have the RFG control measure in place prior to the beginning of the 
2001 ozone season. Kansas cited a preference for a 2001 implementation 
schedule because it is consistent with the AQF recommendations and the 
year 2000 transitional SIP planning process, and it provides reasonable 
opportunity for fuel refiners nearest the KCMA to complete the 
necessary capital improvements to compete for the newly created market 
for RFG. Previously, Kansas was prohibited from implementing RFG 
because the EPA had not promulgated the final regulation, making it 
possible for former nonattainment areas to participate in the Federal 
RFG program. However, this obstacle has been lifted by the EPA's 
rulemaking signed by the Administrator September 21, 1998, and 
published in the Federal Register on September 29, 1998 (63 FR 52093). 
Therefore, the EPA expects that the Governor of Kansas will request 
that the KCMA be included in the Federal RFG program. Upon fulfillment 
of this commitment, the EPA will propose to fully approve this revision 
to the maintenance SIP.
    If the state does not opt in to the RFG program or adopt an 
equivalent state fuel program, the state must, by the deadline 
established in the final conditional approval, implement the 
contingency measures identified in the 1992 SIP. In this event, the 
state must adopt and submit any necessary regulations to implement the 
1992 SIP contingency measures. If the state fails

[[Page 3899]]

to make a submittal by the deadline specified in the final conditional 
approval, the conditional approval converts to a disapproval.
3. Clean Fuel Fleets
    Clean fuel fleets programs take advantage of vehicles relying on 
cleaner burning energy sources for fuel. These vehicles may operate on 
an array of fuels including electricity, compressed natural gas, 
propane, and ethanol blended gasolines. Because this program is 
voluntary, Kansas is not seeking and the EPA is not approving credit 
for emissions reductions under the maintenance plan.
4. Seasonal Low-fare Transit
    The AQF and the MARC board recommended the area's transit providers 
provide no-fare transit during peak ozone season beginning in 1997. The 
Kansas City Area Transportation Authority requested the AQF endorse a 
reduced-fare program, commencing in 1998. Participation in this program 
is voluntary and difficult to estimate, and no permanent funding source 
has been identified. Therefore, Kansas is not seeking and the EPA is 
not approving credit for emission reductions for this program under 
this maintenance plan.
5. Additional Supplemental Measures
    The EPA supports Kansas' commitment to implement various additional 
programs aimed at reducing VOC and NOX emissions. 
Implementation of these programs will assist the KCMA in meeting both 
the 1-hour and 8-hour ozone standards. Kansas is not claiming and the 
EPA is not approving emissions reductions from these programs for 
purposes of the SIP. These measures include enhanced traffic 
signalization, a potentially expanded transit system, enhanced land-use 
planning, stationary source emissions controls, expanded public 
education programs, and air quality data collection.
C. Air Monitoring Network
    The ambient air monitoring network which measures ozone 
concentrations in the KCMA consists of six monitoring stations. Five 
are located in Missouri at Liberty, Watkins Mill, Worlds of Fun, Kansas 
City International Airport (KCI), and Richards Gebaur Airport. The 
remaining monitoring station is located in Kansas City, Kansas. Liberty 
and Watkins Mill are downwind, assuming predominant winds are from the 
southwest. Two monitors, Worlds of Fun and KCI, are placed in populated 
areas. Richards Gebaur is considered an upwind site, designed to 
monitor ozone transport from outside the area. The final monitor is 
located in downtown Kansas City, Kansas, in Wyandotte County.
    Ozone concentrations may not exceed the 1-hour standard more than 
an average of once per year at any single monitoring site over any 
given three-year period. Eighteen (18) exceedances of the ozone 
standard have been recorded in the KCMA from 1990 through 1998. Nine of 
these exceedances occurred in 1995, with three each at the Liberty and 
Watkins Mill sites, two at Worlds of Fun site, and one at the KCI site. 
Four exceedances recorded at the Liberty monitor constituted the 
violation triggering the implementation of the previously approved 
contingency plan.

D. Maintenance of the Standard

    By virtue of the approval of the 1992 maintenance SIP, the 
Administrator deemed the VOC reductions for which the contingency 
measures provided, necessary to promptly correct any violation of the 
1-hour ozone standard which might occur subsequent to redesignation. 
Hence, the revised contingency measures must provide for the equivalent 
level of reductions. The Agency has determined that if Kansas meets the 
conditions set forth in this action, the revised plan will achieve the 
required reductions. The state has provided VOC emissions projections 
for the ten-year period following maintenance plan development. In 
addition, the state has committed to regularly updating the emissions 
inventory for the KCMA to ensure that emissions trends are 
appropriately tracked to facilitate future air quality planning 
activities.

E. Contingency Plan

    The revised maintenance plan includes additional control measures 
to replenish the contingency measures that are being implemented in 
response to the 1995 violation of the standard. These measures are to 
be implemented in the event that additional violations are recorded. 
The KDHE is committed to reducing combined Johnson County and Wyandotte 
County VOC emissions by 5 percent in response to a future violation of 
the 1-hour ozone standard.
    In implementing this 5 percent reduction, the KDHE will review the 
latest emission inventory data, perform a comprehensive evaluation of 
available control strategies, and select those control measures that 
provide the greatest air quality benefits and most cost-effective 
response. The options to be considered for this shall include, but not 
be limited to the following: stationary source controls (NOX 
and/or VOC), Stage II vapor recovery, and enhanced vehicle emissions 
reductions programs. These options will be considered in the order 
listed, as necessary to fulfill the 5 percent reduction obligation. If 
further violations of the 1-hour ozone standard occur, the KDHE will 
again review the data and evaluate additional control strategies.

F. Additional Reasonably Available Control Technology (RACT) 
Regulations

    As a submarginal nonattainment area, the KCMA was required to 
implement RACT controls under section 182(a)(2)(A) of the CAA. The 
states of Missouri and Kansas implemented these regulations prior to 
the redesignation of the area. The KDHE implemented RACT on all major 
sources that were covered by control technique guideline (CTG) 
categories I, II, and III. In addition, the KDHE implemented non-CTG 
RACT on three source categories.
    Kansas is currently developing a RACT rule to regulate the bakery 
source category in the area. Presently only one source is known to 
exist in the Kansas portion of the KCMA to require adoption of this 
RACT regulation. In response to the 1995 ozone standard violation, 
Kansas also initiated a source study to identify any additional 
facilities or categories requiring the adoption of additional specific 
RACT rules.

IV. Policy Review

    Because Kansas City has recorded a violation of the 1-hour ozone 
standard in 1995, and recent air quality analyses performed by Kansas 
suggest Kansas City is likely to violate the new 8-hour standard, 
Kansas must proceed to expeditiously implement the provisions of the 
maintenance plan measures which are the subject of today's action. 
Protecting the 1-hour ozone standard becomes increasingly important in 
light of new requirements being established to implement the revised 8-
hour ozone standard, which was finalized July 16, 1997. For this new 
standard, the EPA will establish a special ``transitional'' 
classification for areas that participate in a regional strategy or 
that opt to submit early plans addressing the 8-hour standard. The 
transitional classification will be available only to those areas 
meeting certain criteria, including having air quality data meeting the 
1-hour standard by 2000. These transitional areas will be subject to 
less restrictive new source review and transportation conformity 
requirements than other ozone nonattainment areas. These less 
restrictive requirements are

[[Page 3900]]

important to companies seeking to expand existing operations or start 
new operations. Therefore, achieving the reductions associated with the 
maintenance plan proposed for approval today have critical implications 
for the ability of the KCMA to meet the requirements of the new 8-hour 
ozone standard. However, the control measures which would be 
conditionally approved are required to be implemented first and 
foremost to protect the 1-hour ozone standard.
    Based on air quality data from 1996 through 1998 (after the 
violation which triggered the contingency measures in the 1992 
maintenance plan), the Kansas City area may be able to demonstrate that 
it has now achieved the 1-hour ozone standard. However, the EPA's 
``Guidance for Implementing the 1-Hour Ozone and Pre-Existing 
PM10 NAAQS'' states that, in general, contingency measures 
which were triggered prior to revocation of the 1-hour standard must be 
retained. Therefore, although the EPA believes that the 1996 through 
1998 data justify the brief delay in implementation of the substitute 
contingency measures, it does not relieve the states of the need to 
implement RFG, an equivalent state fuel, or one of the contingency 
measures identified in the 1992 SIP.

V. Conclusion

    The EPA is soliciting public comments on this notice and on issues 
relative to the EPA's proposed action. Comments will be considered 
before taking final action. Interested parties may participate in the 
Federal rulemaking procedure by submitting written comments to the 
address above.

VI. Proposed Action

    In today's notice, the EPA proposes to conditionally approve 
Kansas' 1998 revisions to the Kansas City ozone maintenance plan. This 
includes the VOC control measures described above, the associated 
emissions reductions, and the commitment to implement the additional 
reductions as expeditiously as practicable. Full approval of the SIP is 
conditioned upon receipt of one of the following: (1) a request from 
the Governor of Kansas to require the sale of Federal RFG within the 
Kansas portion of the KCMA; (2) adopted regulations implementing the 
contingency measures identified in the 1992 maintenance plan, i.e., 
Stage II vapor recovery or an enhanced I/M program; or (3) adopted 
regulations to implement a state fuel program which will achieve 
reductions equivalent to a Federal RFG program. In the case of options 
2 or 3, upon receipt of regulations implementing these provisions and a 
request to amend the maintenance plan accordingly, the EPA will 
initiate rulemaking on this subsequent revision. If the state fails to 
submit one of the above, the conditional approval converts to a 
disapproval. The EPA proposes to establish a deadline for meeting the 
condition which is one year from the effective date of the final rule 
conditionally approving the state's 1998 submittal. The statute 
requires that the condition be met within one year of the conditional 
approval. The EPA seeks comments on whether a shorter deadline should 
be established.
    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.

VII. Administrative Requirements

A. Executive Order (E.O.) 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866, entitled ``Regulatory Planning and 
Review.''

B. E.O. 12875

    Under E.O. 12875, the 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 the EPA consults with those governments. If the EPA 
complies by consulting, E.O. 12875 requires the EPA to provide to the 
OMB a description of the extent of the 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, E.O. 12875 requires the 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 proposal would not create a mandate on state, local, or 
tribal governments. It would merely approve actions which the state has 
already chosen to take. Accordingly, the requirements of Section 1(a) 
of E.O. 12875 do not apply to this rule.

C. E.O. 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 E.O. 
12866, and (2) concerns an environmental health or safety risk that the 
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.
    This rule is not subject to E.O. 13045 because it does not involve 
decisions intended to mitigate environmental health or safety risks 
that the EPA has reason to believe may have a disproportionate effect 
on children.

D. E.O. 13084

    Under E.O. 13084, the 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 the EPA consults with 
those governments. If the EPA complies by consulting, E.O. 13084 
requires the EPA to provide to the OMB, in a separately identified 
section of the preamble to the rule, a description of the extent of the 
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, E.O. 13084 
requires the 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 rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This action does not involve 
or impose any requirements that affect Indian tribes. Accordingly, the 
requirements of Section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to conduct a regulatory 
flexibility

[[Page 3901]]

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. This proposed rule 
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 CAA do not create any new requirements, but simply approve 
requirements that the state has already chosen to impose. Therefore, 
because the Federal SIP approval does not create any new requirements, 
I certify that this action 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 CAA, preparation of 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of state action. The CAA forbids the 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, the 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, the 
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 the EPA to establish 
a plan for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    The EPA has determined that the approval action promulgated does 
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. This Federal action would 
approve requirements which the state has chosen to undertake 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, would result from this action. This action would not 
result in annualized costs of 100 million dollars or more.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: January 15, 1999.
Dennis Grams, P.E.,
Regional Administrator, Region VII.
[FR Doc. 99-1760 Filed 1-25-99; 8:45 am]
BILLING CODE 6560-50-P