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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ079; FRL-6212-5]

RIN 2060-A122

Approval and Promulgation of Implementation Plans; Arizona--

Maricopa Nonattainment Area; PM-10

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rulemaking.

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SUMMARY: EPA is proposing to approve under the Clean Air Act (CAA or

Act) a revision to the Arizona State Implementation Plan (SIP)

reflecting Arizona State legislation that provides for the expeditious

implementation of best management practices to reduce fugitive dust

from agricultural sources in the Maricopa County (Phoenix) PM-10

nonattainment area. Because EPA is proposing to approve the State

legislation as meeting the reasonably available control measure (RACM)

requirements of the Act, EPA is also proposing to withdraw a federal

implementation plan (FIP) commitment, promulgated under section 110(c)

of the Act, to adopt and implement RACM for agricultural fields and

aprons in the Maricopa area.

DATES: Written comments will be accepted until January 29, 1999.

ADDRESSES: Comments should be submitted (in duplicate, if possible) to:

John Ungvarsky, EPA Region 9, 75 Hawthorne Street (AIR2), San

Francisco, CA 94105, (Phone: 415-744-1286).

A copy of docket No. A-98-45, containing material relevant to EPA's

proposed action, is available for review at: EPA Region 9, Air

Division, 75 Hawthorne Street, San Francisco, CA 94105. Interested

persons may make an appointment with John Ungvarsky to inspect the

docket at EPA's San Francisco office on weekdays between 9 a.m. and 4

p.m.

A copy of docket no. A-98-45 is also available to review at the

Arizona Department of Environmental Quality, Library, 3033 N. Central

Avenue, Phoenix, Arizona 85012. (602) 207-2217.

Electronic Availability

This document is also available as an electronic file on EPA's

Region 9 Web Page at http://www.epa.gov/region09/air.

FOR FURTHER INFORMATION CONTACT: For questions and issues regarding

this proposed rulemaking contact, John Ungvarsky (415) 744-1286.

SUPPLEMENTARY INFORMATION:

I. Background

A. Clean Air Act Requirements

1. Designation and Classification

Portions of Maricopa County 1 are designated

nonattainment for the PM-10 national ambient air quality standards

(NAAQS) 2 and were originally classified as ``moderate''

pursuant to section 188(a) of the Clean Air Act (CAA or Act). 56 FR

11101 (March 15, 1991). On May 10, 1996, EPA reclassified the Maricopa

County PM-10 nonattainment area to ``serious'' under CAA section

188(b)(2). 61 FR 21372. Having been reclassified, Phoenix is required

to meet the serious area requirements in the CAA, including a

demonstration that best available control measures (BACM) will be

implemented by June 10, 2000. CAA sections 188(c)(2) and 189(b). While

the Phoenix PM-10 nonattainment area is currently classified as

serious, today's proposed actions relate only to the moderate area

statutory requirements.

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\1\ ``Maricopa,'' ``Maricopa County'' and ``Phoenix'' are used

interchangeably throughout this proposal to refer to the

nonattainment area.

\2\ There are two PM-10 NAAQS, a 24-hour standard and an annual

standard. 40 CFR 50.6. EPA promulgated these NAAQS on July 1, 1987

(52 FR 24672), replacing standards for total suspended particulate

with new standards applying only to particulate matter up to 10

microns in diameter (PM-10). At that time, EPA established two PM-10

standards. The annual PM-10 standard is attained when the expected

annual arithmetic average of the 24-hour samples for a period of one

year does not exceed 50 micrograms per cubic meter (g/

m\3\). The 24-hour PM-10 standard of 150 g/m\3\ is attained

if samples taken for 24-hour periods have no more than one expected

exceedance per year, averaged over 3 years. See 40 CFR 50.6 and 40

CFR part 50, Appendix K.

On July 18, 1997, EPA revised both the annual and the 24-hour

PM-10 standards and also established two new standards for PM, both

applying only to particulate matter up to 2.5 microns in diameter

(PM-2.5)(62 FR 38651). Today's proposed actions relate only to the

CAA requirements concerning the 24-hour and annual PM-10 standards

as originally promulgated in 1987.

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Pursuant to section 189(b)(2), the State of Arizona was required to

submit a serious area plan addressing both PM-10 NAAQS for the area by

December 10, 1997. The State has not yet submitted that plan.

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2. Moderate Area Planning Requirements and EPA Guidance

The air quality planning requirements for PM-10 nonattainment areas

are set out in subparts 1 and 4 of Title I of the Clean Air Act. Those

states containing initial moderate PM-10 nonattainment areas were

required to submit, among other things, by November 15, 1991 provisions

to assure that reasonably available control measures (RACM) (including

such reductions in emissions from existing sources in the area as may

be obtained through the adoption, at a minimum, of reasonably available

control technology (RACT)) shall be implemented no later than December

10, 1993. CAA sections 172(c)(1) and 189(a)(1)(C).3 Since

that deadline has passed, EPA has concluded that the required RACM/RACT

must be implemented ``as soon as possible.'' Delaney v. EPA, 898 F.2d

687, 691 (9th Cir. 1990). EPA has interpreted this requirement to be

``as soon as practicable.'' See 55 FR 41204, 41210 (October 1, 1990)

and 63 FR 28898, 28900 (May 27, 1998).

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\3\ States with moderate PM-10 areas were also required to

submit either a demonstration that the plan would provide for

attainment as expeditiously as practicable but no later than

December 31, 1994 or a demonstration that attainment by that date is

impracticable (CAA section 189(a)(1)(B)); and, for plan revisions

demonstrating impracticability, a demonstration of reasonable

further progress (RFP) meeting the requirements of CAA sections

172(c)(2) and 171(1). Section 171(1) defines RFP as ``such annual

incremental reductions in emissions of the relevant air pollutant as

are required by part D of the Act or may reasonably be required by

the Administrator for the purpose of ensuring attainment of the

applicable national ambient air quality standard by the applicable

attainment date.''

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EPA has issued a ``General Preamble'' 4 describing EPA's

preliminary views on how the Agency intends to review state

implementation plans (SIPs) and SIP revisions submitted under Title I

of the Act, including those state submittals containing moderate PM-10

nonattainment area SIP provisions. The methodology for determining

RACM/RACT is described in detail in the General Preamble. 57 FR 13498,

13540-13541. With respect to PM-10, Appendix C1 of the General Preamble

suggests starting to define RACM with the list of available control

measures for fugitive dust and adding to this list any additional

control measures proposed and documented in public comments. Any

measures that apply to de minimis emission sources of PM-10 and any

measures that are unreasonable for technology reasons or because of the

cost of the control in the area can then be culled from the list. In

addition, potential RACM may be culled from the list if a measure

cannot be implemented on a schedule that would advance the date for

attainment in the area. 57 FR 13498, 13560. 57 FR 18070, 18072 (April

28, 1992).

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\4\ See ``State Implementation Plans; General Preamble for the

Implementation of Title I of the Clean Air Act Amendments of 1990,''

(General Preamble) 57 FR 13498 (April 16, 1992) and 57 FR 18070

(April 28, 1992).

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Moderate area plans were also required to meet the generally

applicable SIP requirements for reasonable notice and public hearing

under section 110(a)(2), necessary assurances that the implementing

agencies have adequate personnel, funding and authority under section

110(a)(2)(E)(i) and 40 CFR 51.280; and the description of enforcement

methods as required by 40 CFR 51.111 and EPA guidance implementing

these provisions.

B. EPA's Moderate Area PM-10 FIP for Phoenix

On August 3, 1998, EPA promulgated under the authority of CAA

section 110(c)(1) a federal implementation plan (FIP) to address the

CAA's moderate area PM-10 requirements for the Phoenix PM-10

nonattainment area. 63 FR 41326 (August 3, 1998).

In the FIP, EPA promulgated, among other things, for both the

annual and 24-hour PM-10 NAAQS, a demonstration that RACM will be

implemented in the Phoenix area as soon as practicable.5 As

part of its RACM demonstration, EPA promulgated an enforceable

commitment, codified at 40 CFR 52.127, to ensure that RACM for

agricultural sources will be expeditiously adopted and implemented. See

63 FR 41326, 41350.6

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\5\ In addition to the RACM demonstration, EPA also promulgated

a demonstration of reasonable further progress and a demonstration

that it was impracticable for the Phoenix area to attain either the

annual or 24-hour PM-10 NAAQS by the applicable attainment deadline

pursuant to CAA sections 172(c)(2) and 189(a)(1)(B). 63 FR 41326,

41340 and 41342.

\6\ 40 CFR 52.127 provides that ``[t]he Administrator shall

promulgate and implement reasonably available control measures

(RACM) pursuant to section 189(a)(1)(C) of the Clean Air Act for

agricultural fields and aprons in the Maricopa County (Phoenix) PM-

10 nonattainment area according to the following schedule: by no

later than September, 1999, the Administrator shall sign a Notice of

Proposed Rulemaking; by no later than April, 2000, the Administrator

shall sign a Notice of Final Rulemaking; and by no later than June,

2000, EPA shall begin implementing the final RACM.''

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II. Arizona Legislation for the Agricultural Sector

On May 29, 1998, Arizona Governor Hull signed into law Senate Bill

1427 (SB 1427) which revised title 49 of the Arizona Revised Statutes

(ARS) by adding section 49-457. This legislation establishes an

agricultural best management practices (BMPs) committee for the purpose

of adopting by rule by June 10, 2000, an agricultural general permit

specifying BMPs for regulated agricultural activities 7 to

reduce PM-10 emissions in the Maricopa PM-10 nonattainment area. ARS

49-457.A-F. BMPs are defined in subsection N.2 of section 49-457 as

``techniques verified by scientific research, that on a case by case

basis are practical, economically feasible and effective in reducing

PM-10 particulate emissions from a regulated agricultural activity.''

Subsection N.1 defines ``agricultural general permit'' to mean:

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\7\ ``Regulated agricultural activities'' are defined as

``commercial farming practices that may produce PM-10 particulate

emissions within the Maricopa PM-10 particulate nonattainment

area.'' ARS 49-457.N.4.

best management practices that: (a) reduce PM-10 particulate

emissions from tillage practices and from harvesting on a commercial

farm.[;] (b) reduce PM-10 particulate emissions from those areas of

a commercial farm that are not normally in crop production. [;] (c)

reduce PM-10 particulate emissions from those areas of a commercial

farm that are normally in crop production including prior to plant

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emergence and when the land is not in crop production.

Subsection M provides for the initiation of BMP implementation through

the commencement of an education program by June 10, 2000. Subsection H

requires the Arizona Department of Environmental Quality (ADEQ) to

submit to EPA a list of BMPs as a revision to the applicable

implementation plan within 60 days of their adoption.8

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\8\ It is not entirely clear from the language of subsection H

whether the statute requires the submittal to EPA of the general

permit, BMPs or both as an applicable implementation plan revision.

However, as long as either the BMPs or general permit are submitted,

once approved by EPA, the agricultural control measures will be

federally enforceable.

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The legislation specifies ADEQ's authority to enforce the general

permit through a series of compliance actions. ARS 49-457.I-K. However,

subsection G of section 49-457 also specifies that:

[n]otwithstanding subsections I, J and K of this section, a person

engaged in a regulated agricultural activity on the effective date

of this Act shall comply with the general permit as provided in

subsection H of this section by December 31, 2001. A person who

commences a regulated agricultural activity after December 31, 2000,

shall comply with the general permit within eighteen months of

commencing the activity.

On September 4, 1998, the State of Arizona submitted ARS 49-457 to

EPA

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for inclusion in the Arizona SIP for the Phoenix PM-10 nonattainment

area as meeting the RACM requirements of CAA section 189(a)(1)(C) and

requested that the Agency approve that legislation in place of the FIP

commitment in 40 CFR 52.127.9 On October 27, 1998, EPA found

the submittal to be complete pursuant to EPA's completeness criteria

set forth in 40 CFR part 51, Appendix V.10

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\9\ Letter from Russell Rhoades, ADEQ, to Felicia Marcus, EPA,

regarding submittal of a state implementation plan revision:

agricultural best management practices; September 4, 1998.

\10\ Letter from David Howekamp, EPA, to Russell Rhoades, ADEQ,

regarding completeness determination; October 27, 1998.

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III. SIP Approval Criteria

Once a SIP submittal is deemed complete, EPA must next determine if

the submittal is approvable as a revision to the SIP. In the case of

the Arizona legislation, EPA must first determine whether ARS 49-457

meets the RACM requirements of CAA section 189(a)(1)(C) and EPA

guidance interpreting that provision. EPA must also determine that the

legislation meets the general SIP requirements described in section

I.A.2 above.

Finally, in order for EPA to approve the SIP revision, EPA must

determine that the SIP submittal complies with CAA section 110(l).

Section 110(l) states that the ``Administrator shall not approve a

revision of a plan if the revision would interfere with any applicable

requirement concerning attainment and reasonable further progress * * *

or any other applicable requirement of [the Clean Air] Act.'' EPA has

concluded that where previously-promulgated FIP elements that have been

found to comply with the applicable requirements of the Act, including

those provisions pertaining to attainment and RFP, are being replaced

by elements of a plan revision that EPA determines are substantially

equivalent, that plan revision would satisfy the requirements of

section 110(l).

IV. Evaluation of the Arizona Legislation

A. RACM and General SIP Requirements

As described in greater detail in section II above, ARS 49-457

requires that the agricultural BMPs committee established in the

legislation must adopt BMPs (to be embodied in a general permit) for

agricultural activities in the Maricopa PM-10 nonattainment area by

June 10, 2000. The legislation also requires the committee to commence

an education program by that date. As such, ARS 49-457 constitutes an

enforceable commitment by the State to undertake these activities.

Moreover, the legislation requires any person engaged in a regulated

agricultural activity to comply with the general permit by December 31,

2001.

As discussed in section I.B, on August 3, 1998, EPA promulgated a

moderate area PM-10 FIP for the Phoenix area that includes an

enforceable commitment to adopt and begin implementing RACM for the

agricultural sector by June 2000. In the proposed and final rules for

the FIP, EPA explained at length the Agency's reasons for promulgating

a commitment to adopt RACM in the future (rather than an immediately

effective regulation) and for its adoption and implementation schedule.

See 63 FR 15920, 15935-15937; 63 FR 41327, 41332-41334.

In general, EPA believes that because agricultural sources in the

United States vary by factors such as regional climate, soil type,

growing season, crop type, water availability, and relation to urban

centers, each PM-10 agricultural strategy is uniquely based on local

circumstances. Furthermore, EPA determined that the goal of attaining

the PM-10 standards in Maricopa County with respect to agricultural

sources would be best served by engaging all interested stakeholders in

a joint comprehensive process on the appropriate mix of agricultural

controls to implement in Maricopa County. EPA stated its belief that

this process, despite the additional time needed to work through it,

will ultimately result in the best and most cost-effective controls on

agricultural sources in the County.

In the FIP notices, EPA also explained its intention to meet its

RACM commitment by developing and promulgating BMPs. Given the number

of potential BMPs, the variety of crops types, the need for stakeholder

input, and the time necessary to develop the BMPs into effective

control measures, EPA believes that the adoption and implementation

schedule in the FIP is as expeditious as practicable and meets the

Act's 189(a)(1)(C) requirement.\11\

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\11\ In response to its FIP proposal, EPA received a number of

comments on the Agency's proposed commitment for the agricultural

sector. These comments included claims that a commitment would not

meet the CAA requirements and EPA guidance for enforceable measures

as expeditiously as practicable and that the proposed adoption and

implementation schedule was too protracted. The reader is referred

to 63 FR 41326, 41332-41334 for EPA's responses to these and other

comments on its commitment for agriculture.

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EPA has evaluated the Arizona legislation and concluded that its

requirements are substantially similar to those in the FIP commitment

for agriculture. To the extent that the State statute differs from the

FIP commitment, EPA believes that the former contains more substance

and greater procedural detail that better informs the BMP development,

adoption and implementation process. See, e.g., ARS 49-457.B, F, G and

M.

While ARS 49-457 does not use the term ``RACM,'' its definition of

BMPs is consistent with the criteria specified in the General Preamble.

Likewise, the formation of a BMP committee, the requirements for BMP

adoption and initiation of an educational program by June 10, 2000, and

the requirement for full compliance with the general permit by December

31, 2001 is consistent with the process and timing that EPA determined

in the FIP to represent expeditious implementation of RACM as required

by CAA section 189(a)(1)(C).

EPA has also concluded that subsection F of section 49-457 provides

the necessary assurances of adequate personnel and funding required by

CAA section 110(a)(2)(E)(i) to develop and adopt the required BMPs.\12\

In addition, ADEQ intends to fund the BMP rulemaking process through

its CAA section 105 grant. That funding will be used to cover

administrative costs of the BMP committee. The BMP general permit

program will be funded from the resources currently allocated to the

State's existing general permit program authorized under ARS 49-

426.H.\13\ EPA intends to assess the adequacy of the State's

enforcement program, including methods and long-term resources, in

connection with future rulemakings on the BMPs and/or general permit

submitted by the State for inclusion in the SIP. See footnote 8.

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\12\ Subsection F of ARS 49-457 provides that: ``[t]he

Department of Environmental Quality, the Department of Agriculture

and the College of Agriculture of the University of Arizona shall

cooperate with and provide technical assistance and any necessary

information to the committee. The Department of Environmental

Quality shall provide the necessary staff support and meeting

facilities for the committee.''

\13\ Attachment 3 to letter from Russell Rhoades to Felicia

Marcus; September 4, 1998.

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B. CAA Section 110(l)

As discussed in the previous section, EPA has determined that the

State legislation provides for the implementation of RACM for

agricultural sources as expeditiously as practicable. Therefore,

approval of the legislation and withdrawal of the FIP RACM commitment

will not interfere with the RACM requirements of CAA section

189(a)(1)(C).

As stated in footnote 5, EPA in the FIP promulgated a

demonstration, meeting the requirements of CAA section 189(a)(1)(B),

that the Phoenix area could

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not practicably attain either the annual or 24-hour PM-10 NAAQS by the

applicable attainment deadline, December 31, 2001,\14\ with the

implementation of RACM.

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\14\ EPA has concluded that since the CAA moderate area

attainment deadline, December 31, 1994, in section 188(c)(1) has

passed and the Maricopa area has been reclassified, the only

attainment deadline currently applicable to the area is the serious

area deadline provided for in CAA section 188(c)(2); i.e,

achievement of attainment as expeditiously as practicable, but no

later than December 31, 2001. For a discussion of this conclusion

and an analysis of the issue, see 63 FR 15920, 15926.

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The Agency determined that, even assuming an unrealistic 100

percent control of emissions from agricultural sources subject to the

FIP commitment, simulated PM-10 concentrations are still over the

annual standard. Thus, EPA found, pursuant to CAA section 189(a)(1)(B),

that attainment of the annual PM-10 standard by December 31, 2001 is

impracticable with the implementation of RACM. 63 FR 41326, 41340.

With respect to timely attainment of the 24-hour standard, EPA

found that attainment at the evaluated monitoring sites would require

substantial reductions from agricultural sources. EPA concluded that

while reductions from agricultural sources are expected through the

future implementation of the federal BMPs, EPA could not currently

quantify the impact of these BMPs because they had yet to be developed.

Therefore it was not possible for the Agency to determine an expected

level of control. 63 FR 41326, 41341.

The BMPs developed pursuant to the Arizona legislation will be

adopted and implemented by the same process and consistent with the

schedule provided for in the FIP commitment for agricultural RACM.

Therefore, the approval of ARS 49-457 and the withdrawal of the FIP

commitment in 40 CFR 52.127 will not change the impracticability

demonstration in the FIP. As a result, that impracticability

demonstration will continue to meet the requirements of section

189(a)(1)(B). Thus EPA's proposed actions will not interfere under

section 110(l) with the attainment requirements of the CAA.

EPA has also concluded that approval of ARS 49-457 and withdrawal

of the FIP commitment will not interfere with the RFP requirements in

sections 172(c) and 171(1) of the CAA. For moderate PM-10 areas

demonstrating impracticability, EPA has determined that these statutory

requirements are met by a showing that the implementation of RACM has

resulted in incremental emission reductions below pre-implementation

levels. See, e.g., 63 FR 41326, 41342. In the FIP, EPA found that the

CAA's RFP requirements have been met for both the annual and 24-hour

PM-10 standards. See footnote 5. With respect to the annual standard,

EPA stated that:

in order to show annual reductions from 2000 to 2001, emission

reductions of more than 239 mtpy would need to result from the

implementation of the BMPs on agricultural sources. The projected

regional inventory for agricultural sources is 6,972 mtpy in 2001.*

* * The FIP rule will need to reduce emissions in this category by

slightly more than 3 percent in order to demonstrate annual

incremental reductions between 2000 and 2001.* * * EPA has every

confidence that such minimal reductions can be achieved.

63 FR 41326, 41343. With respect to the 24-hour standard, EPA found

that, assuming no emission reductions from agricultural sources, the

statutory RFP requirements were met at the evaluated monitoring sites.

Id.

Again, ARS 49-457 contains a commitment to implement RACM level

controls for agricultural sources consistent with the FIP commitment.

Therefore, the approval of ARS 49-457 and the withdrawal of the FIP

commitment in 40 CFR 52.127 will not change the RFP demonstrations in

the FIP. As a result, those RFP demonstrations will continue to meet

the requirements of sections 172(c) and 171(1). Thus EPA's proposed

actions will not interfere under section 110(l) with the RFP

requirements of the CAA.15

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\15\ For the reasons set forth in this section, EPA has also

concluded that its proposed actions will not interfere with any

applicable requirements of the CAA concerning the PM-2.5 standards.

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As the above analysis demonstrates, the State legislation is

substantially equivalent to the FIP provisions and, therefore, clearly

satisfies the requirements of section 110(l).

V. Proposed Actions

EPA has evaluated ARS 49-457 and has determined that it is

consistent with the CAA and EPA regulations. Therefore, EPA is

proposing to approve ARS 49-457 under section 110(k)(3) of the CAA as

meeting the requirements of sections 110(a) and 189(a)(1)(C).

Because EPA is proposing to approve the Arizona statute as meeting

the RACM requirements of the CAA for agricultural sources in the

Phoenix area, EPA is also proposing to withdraw the FIP RACM commitment

for such sources. Specifically, the Agency is proposing to delete

Sec. 52.127, Commitment to Promulgate and Implement Reasonably

Available Control Measures for the Agricultural Fields and Aprons, in

subpart D of part 52, chapter I, title 40 of the Code of Federal

Regulations. EPA believes that the approval of the State statute and

withdrawal of the FIP commitment gives preference to the State's

controls consistent with the CAA's intent that states have primary

responsibility for the control of air pollution within their borders.

CAA sections 101(a)(3) and 107(a).

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

VI. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order 12866, Regulatory Planning and

Review.

B. Executive Order 12875

Under Executive Order 12875, Enhancing the Intergovernmental

Partnership, EPA may not issue a regulation that is not required by

statute and that creates a mandate upon a state, local, or tribal

government, unless the Federal government provides the funds necessary

to pay the direct compliance costs incurred by those governments, or

EPA consults with those governments. If EPA complies by consulting,

Executive Order 12875 requires EPA to provide to the Office of

Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of state, local and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's proposed SIP approval and FIP withdrawal actions do not create

a mandate on state, local or tribal governments. The proposed actions

do not impose any enforceable duties on these entities. Accordingly,

the requirements of section 1(a) of Executive Order 12875 do not apply

to these proposed actions.

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C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is

determined to be ``economically significant'' as defined under

Executive Order 12866, and (2) concerns an environmental health or

safety risk that EPA has reason to believe may have a disproportionate

effect on children. If the regulatory action meets both criteria, the

Agency must evaluate the environmental health or safety effects of the

planned rule on children, and explain why the planned regulation is

preferable to other potentially effective and reasonably feasible

alternatives considered by the Agency. These proposed actions are not

subject to Executive Order 13045 because they are not economically

significant as defined under Executive Order 12866 and do not involve

decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

Under Executive Order 13084, Consultation and Coordination with

Indian tribal Governments, EPA may not issue a regulation that is not

required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.'' Today's

proposed actions do not significantly or uniquely affect the

communities of Indian tribal governments. Accordingly, the requirements

of section 3(b) of Executive Order 13084 do not apply to these proposed

actions.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. These proposed actions will not have a significant

impact on a substantial number of small entities because SIP approvals

under section 110 and subchapter I, part D of the Clean Air Act do not

create any new requirements but simply approve requirements that the

State is already imposing. Therefore, because these proposed actions do

not create any new requirements, I certify that these proposed actions

will not have a significant economic impact on a substantial number of

small entities. Moreover, due to the nature of the Federal-State

relationship under the Clean Air Act, preparation of flexibility

analysis would constitute Federal inquiry into the economic

reasonableness of state action. The Clean Air Act forbids EPA to base

its actions concerning SIPs on such grounds. Union Electric Co., v.

U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

annual costs to State, local, or tribal governments in the aggregate;

or to private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that these proposed actions do not include a

Federal mandate that may result in estimated annual costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector. These proposed actions approve

pre-existing requirements under State or local law and withdraw Federal

requirements, and impose no new requirements. Accordingly, no

additional costs to State, local, or tribal governments, or to the

private sector, result from these proposed actions.

G. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement

Act of 1995 (NTTAA), Pub L. No. 104-113, Sec. 12(d) (15 U.S.C. 272

note) directs EPA to use voluntary consensus standards in its

regulatory activities unless to do so would be inconsistent with

applicable law or otherwise impractical. Voluntary consensus standards

are technical standards (e.g., materials specifications, test methods,

sampling procedures, and business practices) that are developed or

adopted by voluntary consensus standards bodies. The NTTAA directs EPA

to provide Congress, through OMB, explanations when the Agency decides

not to use available and applicable voluntary consensus standards.

These federal actions do not involve technical standards. Therefore,

EPA did not consider the use of any voluntary consensus standards.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Particulate

matter.

Dated: December 22, 1998.

Carol M. Browner,

Administrator.

[FR Doc. 98-34422 Filed 12-29-98; 8:45 am]

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