[Federal Register Volume 64, Number 124 (Tuesday, June 29, 1999)]
[Rules and Regulations]
[Pages 34726-34732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16371]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ079-0014; FRL-6365-9]
RIN 2060-A122


Approval and Promulgation of Implementation Plans; Arizona--
Maricopa Nonattainment Area; PM-10

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving 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 approving the State legislation as 
meeting the reasonably available control measure (RACM) requirements of 
the Act, EPA is also withdrawing 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.

EFFECTIVE DATE: July 29, 1999.

FOR FURTHER INFORMATION CONTACT: John Ungvarsky at (415) 744-1286, Air 
Division, U.S. Environmental Protection Agency, Region 9, 75 Hawthorne 
Street (AIR2), San Francisco, CA 94105. This document is also available 
as an electronic file on EPA's Region 9 web page at http://www.epa.gov/
region09/air.

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 actions relate only to the moderate area statutory 
requirements.
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    \1\ ``Maricopa,'' ``Maricopa County'' and ``Phoenix'' are used 
interchangeably throughout this final rule 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 actions relate only to the CAA 
requirements concerning the 24-hour and annual PM-10 standards as 
originally promulgated in 1987.
    On May 14, 1999, the U.S. Court of Appeals for the D.C. Circuit 
in American Trucking Assoc., Inc., et al. v. USEPA, No. 97-1440 (May 
14, 1999) issued an opinion that, among other things, vacated the 
new standards for PM-10 that were published on July 18, 1997 and 
became effective September 16, 1997. However, the PM-10 standards 
promulgated on July 1, 1987 were not an issue in this litigation, 
and the Court's decision does not affect the applicability of those 
standards in the Maricopa area. Codification of those standards 
continues to be recorded at 40 CFR 50.6. In the notice promulgating 
the revised PM-10 standards, the EPA Administrator decided that the 
previous PM-10 standards that were promulgated on July 1, 1987, and 
provisions associated with them, would continue to apply in areas 
subject to the 1987 PM10 standards until certain conditions 
specified in 40 CFR 50.6(d) are met. See 62 FR at 38701. EPA has not 
taken any action under 40 CFR 50.6(d) for the Maricopa area.
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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.
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, or 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 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

[[Page 34727]]

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. Proposed Actions

    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 established 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.
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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.
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    On September 4, 1998, the State of Arizona submitted ARS 49-457 to 
EPA. On December 30, 1998, EPA proposed to approve the legislation into 
the Arizona SIP for the Phoenix PM-10 nonattainment area under section 
110(k)(3) of the CAA as meeting the requirements of sections 110(a) and 
189(a)(1)(C) and proposed to withdraw the FIP RACM commitment for such 
sources. Please refer to Notice of Proposed Rulemaking (63 FR 71816) 
for greater detail on the Arizona legislation. For EPA's SIP approval 
criteria and its evaluation of the Arizona legislation, see 63 FR 
71817.

III. Comments on Proposed Rule and EPA Responses

    EPA received 3 comment letters on its proposed action for Phoenix. 
The comment letters were submitted by: (1) Nancy C. Wrona, Director, 
Air Quality Division, Arizona Department of Environmental Quality; (2) 
Dan Thelander, Chair, Agricultural Best Management Practices Committee; 
and (3) Jennifer B. Anderson, Staff Attorney, Arizona Center for Law in 
the Public Interest (ACLPI). The first two letters expressed strong 
support for EPA's proposed approval and did not raise any issues that 
EPA need address. ACLPI, in a January 29, 1999 letter, however, opposes 
EPA's proposed actions for a variety of reasons. EPA responds to 
ACLPI's specific major comments below. The reader is referred to the 
technical support document (TSD) for this rulemaking for EPA's 
responses to all of ACLPI's comments in its January 29, 1999 letter.
    ACLPI comments that EPA should withdraw the proposed SIP revision. 
ACLPI claims that EPA's proposal would replace a weak FIP commitment 
with a weaker State commitment to do the same thing and that the State 
commitment violates the CAA for the same reasons as the FIP commitment. 
Therefore ACLPI incorporates by reference into its comments its brief 
for petitioners in Ober v. Browner, No. 98-71158.8
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    \8\ Ober is a pending petition for review, filed by ACLPI on 
behalf of Phoenix residents, in the U.S. Court of Appeals for the 
Ninth Circuit, of EPA's action in promulgating the Phoenix FIP. 
While ACLPI's comment letter does not specify what portions of the 
petitioners' brief it intends to incorporate, EPA believes that the 
only arguably relevant portion is at pp. 29-36, relating to EPA's 
commitment for agricultural sources, and therefore addresses here 
only the arguments in those pages.
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    In the Ober litigation, EPA fully responded to the arguments raised 
by the petitioners in their brief as they relate to the action at issue 
there, EPA's FIP commitment for agricultural sources in Phoenix. For 
the complete text of our responses to those arguments, see brief for 
respondents at pp. 10-18 and 43-59. Because ACLPI chose not to recast 
the arguments in its Ober brief in the context of EPA's proposed SIP 
approval and FIP withdrawal, we have not done so for them. Thus the 
text in the comment sections below summarizes and/or excerpts portions 
of the brief for petitioners as filed in the Ninth Circuit. In the EPA 
response sections, however, we have addressed the comments as if they 
refer to this proposed action and not the FIP promulgation.
    The gravamen of ACLPI's complaint is that the State's regulatory 
approach is that of a commitment to adopt and implement agricultural 
controls in the future rather than immediate, adopted and implemented 
regulations. This approach was initially developed for EPA's FIP and 
was then incorporated into the State legislation that is the subject of 
this rulemaking. Therefore, the original rationale for that approach is 
of central relevance and we briefly summarize it here as a prologue to 
the specific comments and responses that follow:
    EPA has, beginning with the proposed rulemaking for its August 3, 
1998 FIP and culminating in the Ninth Circuit litigation, explained at 
length its reasoning in promulgating an enforceable commitment for the 
control of PM-10 from agricultural fields and aprons in the Phoenix PM-
10 nonattainment area rather than immediate, fully developed 
regulations for those sources. See 63 FR 15920, 15935-15936 (April 1, 
1998); 63 FR 41332-41334; 63 FR 71817; brief for respondents at 43-59. 
In short:

    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. 
* * *


[[Page 34728]]


63 FR 71817. That schedule provided that RACM for agricultural fields 
and aprons in the Phoenix area would be proposed by September 1999, 
finalized by April 2000, and implementation begun by June 2000. 40 CFR 
52.127; 63 FR 41350.

Specific ACLPI Comments and EPA Responses

    Comment: ACLPI claims in its Ober brief that EPA has not met its 
burden under its policy of demonstrating that available agricultural 
controls are infeasible or otherwise unreasonable. Petitioners' brief 
at 32.9
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    \9\ ``ACLPI'' and ``petitioners'' are used interchangeably 
throughout this document except where otherwise indicated.
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    Response: Under EPA's General Preamble, a ``reasoned 
justification'' is required for measures rejected as RACM. 57 FR 13540. 
By demonstrating that it lacked sufficient information at the time the 
FIP was developed and promulgated to determine the appropriate 
agricultural controls for the Phoenix area, EPA fully justified its 
conclusion that the only responsible approach was the one it pursued, 
i.e., a commitment, enforceable through the CAA citizen suit provision, 
section 304, to adopt and implement RACM controls on an expeditious 
schedule. For the same reason, EPA did meet its burden under its own 
policy to demonstrate that the measures promoted by petitioners were 
not reasonably available at the time EPA developed and promulgated the 
FIP. As we demonstrate below, the FIP approach evolved into the State 
legislation; therefore the same justification exists for the State in 
adopting its legislation.
    As noted above, in developing the FIP for these sources, EPA 
promoted and participated in a stakeholder process that included 
discussions and coordination among federal, state and local government 
agencies and national and local agricultural organizations. This 
approach resulted in a consensus among the participants on the elements 
of a workable and expeditious agricultural strategy that would be 
incorporated initially into the FIP and subsequently into State 
legislation. 63 FR 15936-15937. In its FIP proposal, EPA explained that 
its enforceable commitment included a series of milestones to assure 
adoption and implementation of RACM. The Agency further explained:

    EPA would initially convene a stakeholder-based process to begin 
formal development of draft BMPs. Stakeholder groups represented 
will likely include but not be limited to the Arizona Farm Bureau 
Federation, Maricopa County Farm Bureau, ADEQ [Arizona Department of 
Environmental Quality], MAG [Maricopa Association of Governments], 
MCESD [Maricopa County Environmental Services Department], NRCS 
[Natural Resource Conservation Service], Cooperative Extension, the 
University of Arizona, tribes, and environmental and/or public 
health organizations. This effort would build upon the stakeholder-
based discussions which occurred in 1997 and early 1998. By 
September 1998, the stakeholders would begin to draft BMPs. * * * In 
June 2000, BMP implementation will begin with an extensive 
collaborative public outreach and education campaign. Guidance 
documents would be developed to assist growers with implementation 
of the BMPs. Compliance assistance would also be a key element of 
the BMP program.

Id. at 15937.
    In the FIP proposal, EPA also addressed the issue of how the 
federal commitment could ultimately be replaced:

    While EPA's intended BMP approach is designed to meet the RACM 
requirement, the Agency believes it can serve as a potential 
starting point and model for the development of a State-led SIP 
process for addressing BACM [Best Available Control Measures] for 
agricultural sources. Thus, the stakeholders could potentially build 
upon the BMP approach initiated for the FIP to address both RACM and 
BACM requirements for the agricultural sector in the 
SIP.10 The Arizona Farm Bureau Federation, the Maricopa 
County Farm Bureau, NRCS, ADEQ, and other regulatory agencies are 
currently working collaboratively to develop a State-led BMP process 
for that purpose. EPA strongly endorses such a process.
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    \10\ At the time the moderate area FIP was being developed, the 
State was preparing to develop its plan to meet the serious area PM-
10 requirements of the Act in the Phoenix area, one of which is 
provisions to assure that the best available control measures for 
the control of PM-10 shall be implemented. See generally CAA section 
189(b).
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    Id. at 15937. Thus it was clear from the beginning of the 
regulatory development effort for the agricultural sources in Phoenix 
that the participants intended that both the federal and State 
processes would be substantially identical and, as such, a seamless 
transition from the FIP to the State replacement SIP could be 
effectuated. See, e.g., letter from David P. Howekamp, EPA, to Kevin 
Rogers, Maricopa County Farm Bureau (MCFB), January 7, 1998 and letter 
from Kevin G. Rogers to David P. Howekamp, January 22, 1998.
    As expected, the approach and process in the State legislation that 
was ultimately passed and submitted by the State as a SIP revision are 
virtually coextensive with that of the FIP. For example, the 
legislation establishes a committee with the authority to adopt BMPs 
and conduct an educational program. See ARS 49-457.A-F, H and M. The 
provisions of the State legislation are discussed in detail in the 
proposal for this action at 63 FR 71816-71817.
    Furthermore, in practice, a single entity has been established and 
has been operating to develop BMPs to comply with both the requirements 
of the FIP and State legislation. This entity, known as the Best 
Management Practices committee, has been meeting on a regular basis 
since September, 1998. In addition, a Technical Working Group was 
formed which is currently reviewing and evaluating a list of over 50 
BMPs for possible use in Maricopa County. The Technical Working Group 
will then forward its recommendations to the BMP committee. Together, 
the committee and the working group are comprised of representatives 
from State and local agencies, universities, farmers/producers in 
Maricopa County, and EPA representatives. The committee expects to 
develop BMPs by September, 1999. These BMPs will then undergo review by 
State offices and the public and are expected to be adopted by June 10, 
2000. Thus, for all practical purposes, the implementation efforts to 
date of the FIP commitment and the Arizona legislation are effectively 
the same.
    As we have demonstrated above, the FIP and the State legislation 
were developed by the same participants and through the same process 
and were intended to be substantially identical. Therefore, the 
justification for the commitment approach in both the FIP and the SIP 
11 are the same. ACLPI has had ample opportunity to comment 
and detail its arguments regarding the alleged inadequacy of that 
justification in connection with the FIP promulgation and the judicial 
challenge to that rulemaking. See letter from ACLPI to EPA, Region 9, 
May 18, 1998 and petitioners' brief at 29-36. For these reasons, while 
EPA acknowledges that the SIP submittal did not contain the ``reasoned 
justification'' provided for in Agency guidance, EPA believes that such 
a State justification would have been the same as that provided by EPA 
in connection with the FIP. Therefore, to the extent that the State did 
not duplicate that rationale, it is of no consequence. By its 
incorporation of its brief in Ober into its comments on the proposal 
for this action, ACLPI has put

[[Page 34729]]

its arguments in the record for this rulemaking.
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    \11\ The Arizona legislation operates as a commitment 
enforceable under CAA section 304 by mandating the adoption by June 
10, 2000 of a general permit specifying BMPs with which sources must 
comply by December 31, 2001 and the initiation of an education 
program by June 10, 2000. ARS 49-457.G, H, M.
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    Comment: In their brief, petitioners argue that EPA's deferral of 
agricultural controls in the FIP through the use of a commitment is not 
reasonable because ``[t]echniques for controlling agricultural 
emissions are well known.'' In support of this argument, petitioners 
cite, among other things, existing South Coast Air Quality Management 
District (SCAQMD) rules, EPA guidance, and a report by a 1996 task 
force appointed by Arizona's Governor, and claim that EPA erred by not 
adopting those measures in the FIP. Petitioners' brief at 30-31. ACLPI 
also suggests that EPA's action with respect to agricultural controls 
is contrary to the Agency's own policies detailing available 
agricultural control measures. Id. 
    Response: As discussed above, EPA has explained at length the 
rationale for its commitment in the FIP to adopt and implement RACM for 
the agricultural sector in Phoenix. See, e.g., 63 FR 15936. The Arizona 
legislation takes a very similar approach for the same reasons.
    EPA agrees that certain techniques are well known. The critical 
question, however, is not whether those measures are ``available,'' but 
whether they are ``reasonably available'' for the Phoenix area. ACLPI's 
arguments ignore the fact that, as noted above, PM-10 strategies in an 
agricultural context are highly dependent on specific local factors. 63 
FR 41332-41333; Technical Support Document for U.S.EPA's Final Federal 
Implementation Plan for the Phoenix Nonattainment Area, Response to 
Comments Document, p. 16. (FIP TSD). As EPA explained in connection 
with the FIP, ``[a] resolution of these uncertainties, in the context 
of an assessment of the potential mix of control measures, is critical 
to a determination of whether controls such as those contained in the 
SCAQMD rules are reasonably available for the Maricopa County 
nonattainment area and will contribute to attaining the PM-10 standards 
in the area.'' 12 Id. at pp. 16-17. That reasoning applies 
to the State legislation as well.
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    \12\ EPA provided examples of the differences between Maricopa 
County and the Coachella Valley that affect control strategy 
choices. For instance, SCAQMD rule 403.1 restricts activities 
capable of generating fugitive dust when wind speeds exceed 25 miles 
per hour; while PM-10 exceedances in Maricopa County can occur when 
winds exceed 15 miles per hour. Maricopa County has approximately 
300,000 acres in production as opposed to the Coachella Valley's 
60,000 areas. Finally, not only are the crops very different 
(Maricopa County is dominated by cotton, alfalfa, and wheat, while 
the Coachella Valley primarily grows fruits and vegetables), these 
crops have different planting and growing patterns.
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    Moreover, contrary to ACLPI's suggestion in its brief, the 1996 
Governor's task force report supports--not undermines--the State's 
approach to agricultural controls in its legislation. That report 
recommends the ``[d]evelopment, implementation, and documentation of 
specific voluntary practices to reduce dust emissions from agricultural 
practices'' and specifies that they ``may become part of a list of 
mandatory agricultural BACM developed through coordination'' by local 
and state agencies with relevant expertise. The report further states 
that ``[a] coordination plan could be started immediately. 
Implementation would require cooperation with the agricultural 
community.'' Finally, the report lists several barriers to 
implementation. Report of the Governor's Air Quality task Force; 
Recommended Long-term Control Measures for Ozone, Carbon Monoxide, and 
PM-10, December 2, 1996, p. III-85-88. Thus, the task force recognized 
that the recommended measures would need considerable additional work 
and coordination among stakeholders before they could be fully realized 
in the Phoenix area.
    Finally, the EPA guidance cited by petitioners lists agricultural 
control measures generally determined to be available for consideration 
by states in developing their PM-10 plans. EPA does not dispute the 
availability of such controls, but its guidance does not presume that 
these measures are reasonably available in any or all areas. Again, the 
question is whether the application of those measures to a specific 
area, like Maricopa County, is reasonable.
    To take just one of the available measures cited by petitioners--
modified tillage methods--as an example, EPA's guidance notes that 
operational tillage modifications require areas to consider: replacing 
planting and seeding methods, planting and fertilizing of specific 
grasses, crops and trees, and revising grazing practices. It 
acknowledges that resorting to some of these modified farming 
approaches ``would require initial capital investments by the farming 
industry for new equipment.'' Fugitive Dust Background Document and 
Technical Information Document for Best Available Control Measures, 
U.S.EPA, Office of Air Quality Planning and Standards (OAQPS), 
September 1992, p. 3-49. Both the American Farm Bureau Federation and 
the MCFB commented on possible negative economic impacts on agriculture 
if FIP controls were imposed on such sources. 63 FR at 41333-41334. It 
is because agricultural controls can be costly and intersect with land 
management practices and farming issues that EPA's policy is to work 
closely with all affected local, state and federal entities (e.g., 
USDA). Indeed, petitioners correctly note that EPA's guidance includes 
``USDA-assisted soil conservation plans * * * on individual farms'' as 
an available measure. Petitioners' brief at 32.
    Comment: According to the petitioners, citing CAA section 
172(c)(1), the ``wholesale deferral of agricultural controls [in the 
FIP] is utterly indefensible because the Act required adoption of all 
reasonably available controls as expeditiously as practicable.'' They 
contend that for moderate PM-10 areas, the Act set an explicit, 
absolute deadline of December 10, 1993 for implementing such measures 
under section 189(a)(1)(C) and that where an absolute deadline under 
the Act has passed, EPA must correct the deficiency ``as soon as 
possible'' to effectuate Congressional intent. Delaney v. EPA, 898 F.2d 
687, 691, 695 (9th Cir. 1990).
    Response: The air quality planning requirements for moderate area 
PM-10 SIPs are set out in CAA section 189, which states that the 
moderate area SIP must contain provisions to assure that RACM for the 
control of PM-10 is implemented by December 10, 1993. CAA section 
189(a)(1)(C). In its General Preamble, which contains guidance to the 
states for determining RACM and reasonably available control technology 
(RACT) in their PM-10 moderate area SIPs, EPA interpreted this specific 
deadline for PM-10 nonattainment areas to supersede the generally 
applicable ``as expeditiously as practicable'' deadline in CAA section 
172(c)(1). See 57 FR 13501. However, because the December 10, 1993 
deadline had passed by the time the State legislation at issue here was 
developed, the applicable deadline became ``as soon as possible'' under 
Delaney, 898 F.2d at 691. EPA has interpreted this requirement to be 
``as soon as practicable.'' 63 FR 15926. We have delineated above the 
various factors that demonstrate that the schedule in the State 
legislation meets that test.
    Comment: In its January 29, 1999 comment letter, ACLPI contends 
that EPA cannot claim that the State legislation provides for the 
expeditious implementation of RACM because the implementation date for 
the BMPs in the State plan is December 31, 2001 compared to an 
implementation date of June 2000 for the FIP.

[[Page 34730]]

    Response: Under the State legislation, by June 10, 2000, BMPs must 
be adopted and embodied in a general permit in the Maricopa PM-10 
nonattainment area and an education program must be initiated. By 
December 31, 2001, all regulated parties are required to be in 
compliance with the general permit. ARS 49-457.G, H, M.
    The FIP requires that EPA shall begin implementing the final RACM, 
i.e., the BMPs, by June 2000. 63 FR 41350. Prior to proposing the FIP 
and as part of the stakeholder process, EPA, in conjunction with MCFB, 
concluded that it would not be possible to fully implement the BMPs by 
June 2000. See, e.g., letter from David P. Howekamp, EPA, to Kevin 
Rogers, MCFB, January 7, 1998 and letter Kevin G. Rogers to David P. 
Howekamp, January 22, 1998. Thus, as we stated in the proposal for the 
FIP, EPA's intention was to conduct an education program before 
enforcing the BMPs: ``In June 2000, BMP implementation will begin with 
an extensive collaborative public outreach and education campaign.'' 63 
FR 15937. EPA's intention to begin its education program as the first 
phase of its implementation program by that date is consistent with the 
education program requirement in the State legislation. In fact, the 
State legislation is arguably more stringent than the FIP because it 
provides for full compliance with the BMPs by December 31, 2001, while 
the FIP has no such full or final implementation deadline. See 40 CFR 
52.127; 63 FR 41350.
    Comment: ACLPI argues that an enforceable commitment to adopt 
control measures is not consistent with the CAA and prior practice. 
Specifically, petitioners object that EPA's decision to promulgate an 
enforceable commitment, as opposed to actual control measures, does not 
meet the CAA requirements for enforceable measures as expeditiously as 
practicable, and that the commitment offers no assurance that adequate 
controls will ever be adopted. Petitioners' brief at 34-36.
    Response: Historically EPA has interpreted the CAA to allow states 
to submit, and EPA to approve, enforceable commitments to adopt rules 
in the future, and the courts have upheld such approvals. See, e.g., 
Friends of the Earth v. EPA, 499 F.2d 1118, 1124 (2d Cir. 
1974).13 Indeed, in Kamp v. Hernandez, 752 F.2d 1444, 1446, 
modified in other part, 778 F.2d 527 (9th Cir. 1985), the court 
reviewed EPA's approval of a plan that required Arizona to adopt 
regulations in the future to control fugitive emissions. Petitioners 
challenged EPA's approval, claiming that the lack of such controls in 
the plan meant that it did not assure attainment and maintenance of the 
sulfur dioxide standards. While finding that the Act requires plans to 
``rely on emission limitations to the maximum extent feasible,'' the 
court upheld EPA's approval, agreeing with the Second Circuit's 
reasoning that ``the demands of its ``difficult and complex job'' 
require that EPA be given some flexibility to approve nearly complete 
implementation plans.'' Id. at 1455. Here, as shown above, it was not 
feasible for the State to impose immediate controls on agricultural 
sources and the enforceable commitment in the State's legislation 
provides for the implementation of RACM as soon as practicable.
---------------------------------------------------------------------------

    \13\ Courts have agreed that such commitments are enforceable by 
the public under the CAA citizen suit provision, section 304. See, 
e.g., American Lung Association of New Jersey v. Kean, 670 F. Supp. 
1285 (D.N.J. 1987), aff'd, 871 F.2d 319 (3d Cir. 1989); NRDC v. New 
York State Dep't of Environmental Conservation, 668 F. Supp. 848 
(S.D.N.Y. 1987); Citizens for a Better Environment v. Deukmejian, 
731 F. Supp. 1448, reconsideration granted in part, 746 F. Supp. 976 
(N.D. Cal. 1990); Coalition Against Columbus Center v. New York, 967 
F.2d 764 (2d Cir. 1992); Trustees for Alaska v. Fink, 17 F.3d 1209 
(9th Cir. 1994).
---------------------------------------------------------------------------

    Petitioners rely on NRDC v. EPA, 22 F.3d 1125 (D.C. Cir. 1994) to 
support their argument. There, the D.C. Circuit considered EPA's 
authority under CAA section 110(k)(4) which was added as part of the 
1990 Amendments to the Act, to conditionally approve a SIP submittal 
which consisted entirely of a commitment letter to submit the required 
measure by a date certain.14 Here, however, EPA did not rely 
on section 110(k)(4); rather the Agency proposed to approve the Arizona 
legislation under section 110(k)(3). 63 FR 71818.
---------------------------------------------------------------------------

    \14\ Under section 110(k)(4), the Administrator ``may approve a 
plan revision based on a commitment of the State to adopt specific 
enforceable measures by a date certain,'' within one year after the 
date of approval of the plan revision. Any such conditional approval 
shall be treated as a disapproval if the State fails to comply with 
such commitment.
---------------------------------------------------------------------------

    Moreover, when section 110(k)(4) was enacted as part of the 1990 
Amendments, it provided a new type of approval for a limited set of 
commitments that, in general, could not be enforced under the Act's 
enforcement mechanisms, including the citizen suit 
provision.15 There is no evidence that by enacting this 
provision Congress intended to replace EPA's well-established policy of 
using its general approval authority to approve enforceable commitments 
and, in fact, EPA has continued to approve enforceable commitments 
under its general authority. See 62 FR 1150, 1187 (Jan. 8, 1997).
---------------------------------------------------------------------------

    \15\ As noted above, under section 110(k)(4), if a commitment is 
not fulfilled, the conditional approval must be converted to a 
disapproval. Once a SIP provision is disapproved, there is no longer 
any commitment left to enforce under the Act.
---------------------------------------------------------------------------

IV. Final Actions

    EPA has evaluated ARS 49-457 and has determined that it is 
consistent with the CAA and EPA regulations. Therefore, EPA is 
approving 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 
approving the Arizona statute as meeting the RACM requirements of the 
CAA for agricultural sources in the Phoenix area, EPA is also 
withdrawing the FIP RACM commitment for such sources by deleting 
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. 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.

V. 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

[[Page 34731]]

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 rule does not 
create a mandate on state, local or tribal governments. The rule does 
not impose any enforceable duties on these entities. Accordingly, the 
requirements of section 1(a) of Executive Order 12875 do not apply to 
this rule.

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. This rule is not subject to 
Executive Order 13045 because it does 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 rule 
does 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 this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act 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. 
This final 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 Clean Air Act do not create any new 
requirements but simply approve requirements that the State is already 
imposing. Therefore, because this rule does not create any new 
requirements, I certify that this rule 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 this rule 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 approves pre-existing 
requirements under State or local law and withdraws Federal 
requirements, and imposes no new requirements. Accordingly, no 
additional costs to State, local, or tribal governments, or to the 
private sector, result from this action.

G. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, Section 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. This 
action does not involve technical standards. Therefore, EPA did not 
consider the use of any voluntary consensus standards.

H. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major'' rule as defined by 5 U.S.C. 804(2).

I. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 30, 1999. Filing a 
petition for reconsideration by

[[Page 34732]]

the Administrator of this final rule does not affect the finality of 
this rule for the purposes of judicial review nor does it extend the 
time within which a petition for judicial review may be filed, and 
shall not postpone the effectiveness of such rule or action. This 
action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter.

    Dated: June 17, 1999.
Carol M. Browner,
Administrator.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

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

Subpart D--Arizona

    2. Section 52.120 is amended by adding paragraph (c)(93) to read as 
follows:


Sec. 52.120  Identification of plan.

* * * * *
    (c) * * *
    (93) Plan revisions were submitted on September 4, 1998 by the 
Governor's designee.
    (i) Incorporation by reference.
    (A) Arizona Revised Statute 49-457.
* * * * *


Sec. 52.127  [Removed and Reserved]

    3. Section 52.127 is removed and reserved.

[FR Doc. 99-16371 Filed 6-28-99; 8:45 am]
BILLING CODE 6560-50-P