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

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.

-----------------------------------------------------------------------

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.

---------------------------------------------------------------------------

\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.

---------------------------------------------------------------------------

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).

---------------------------------------------------------------------------

\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.''

---------------------------------------------------------------------------

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).

---------------------------------------------------------------------------

\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).

---------------------------------------------------------------------------

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

---------------------------------------------------------------------------

\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.''

---------------------------------------------------------------------------

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.

---------------------------------------------------------------------------

\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.

---------------------------------------------------------------------------

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

---------------------------------------------------------------------------

\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.

---------------------------------------------------------------------------

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

---------------------------------------------------------------------------

\9\ ``ACLPI'' and ``petitioners'' are used interchangeably

throughout this document except where otherwise indicated.

---------------------------------------------------------------------------

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.

---------------------------------------------------------------------------

\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).

---------------------------------------------------------------------------

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.

---------------------------------------------------------------------------

\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.

---------------------------------------------------------------------------

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.

---------------------------------------------------------------------------

\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.

---------------------------------------------------------------------------

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