[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.
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\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).
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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.
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\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.
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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).
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\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.
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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