Approval and Promulgation of Implementation Plans; State of Kansas

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-6225-5]

Approval and Promulgation of Implementation Plans; State of

Kansas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Kansas City ozone maintenance area experienced a violation

of the National Ambient Air Quality Standard (NAAQS) for ozone in 1995.

In response to this violation, Kansas submitted revisions to its ozone

maintenance plan. These revisions pertain to the implementation of

control strategies to achieve reductions in volatile organic compound

(VOC) emissions within the Kansas portion of the Kansas City ozone

maintenance area. A major purpose of these revisions is to provide a

more flexible approach to maintenance of acceptable air quality levels

in Kansas City, while achieving emission reductions equivalent to those

required by the previously approved plan.

The EPA is proposing to conditionally approve the 1998 revisions to

the Kansas City ozone maintenance plan as a revision to the Kansas

State Implementation Plan (SIP). Final approval is contingent upon

Kansas' submission of additional, enforceable control measures.

In a separate Federal Register notice published today, the EPA is

also proposing conditional approval of a similar plan submitted by the

Missouri Department of Natural Resources to address the Missouri

portions of the ozone maintenance area.

[[Page 3897]]

DATES: Comments on this proposed rule must be received in writing on or

before February 25, 1999.

ADDRESSES: Comments may be mailed to Royan Teter, Environmental

Protection Agency, Air Branch, 726 Minnesota Avenue, Kansas City,

Kansas 66101. The state submittal and the EPA-prepared technical

support document are available for public review at the above address.

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

SUPPLEMENTARY INFORMATION:

I. Background

The Kansas City metropolitan area (KCMA), consisting of Clay,

Platte, and Jackson Counties in Missouri, and Johnson and Wyandotte

Counties in Kansas, was designated nonattainment for ozone in 1978. The

Clean Air Act (CAA) provides for areas with a prescribed amount of air

quality data showing attainment of the standard to be redesignated from

nonattainment to attainment, if the requirements of section

107(d)(3)(E) are met. One of these requirements is for the area to

adopt a maintenance plan consistent with the requirements of section

175A. This plan must demonstrate attainment of the NAAQS with a margin

of safety sufficient to remain in attainment for ten years. Also, the

plan must contain a contingency plan to be implemented if the area once

again violates the standard.

Ozone monitoring data from 1987 through 1991 demonstrated that the

Kansas City nonattainment area had attained the ozone NAAQS. In

accordance with the CAA, the Kansas Department of Health and

Environment (KDHE) revised the ozone SIP for the Kansas portion of the

Kansas City area to recognize the area's attainment status. The EPA

published final approval of the Kansas SIP on June 23, 1992. The SIP

became effective on July 23, 1992 (57 FR 27939). This action effected

the redesignation of the area to attainment.

The contingency plan approved as part of the 1992 SIP identified

four measures which were to be implemented upon subsequent violation of

the standard in the Kansas City area. These contingency measures

required: (1) certain new or expanding sources of ozone precursors to

acquire emissions offsets; (2) the installation of Stage II vapor

recovery systems at retail gasoline stations or the implementation of

an enhanced inspection and maintenance (I/M) program for motor

vehicles; (3) the implementation of transportation control measures

achieving a 0.5 percent reduction in areawide VOC emissions; and (4)

the completion of a comprehensive emissions inventory.

In a letter from Dennis Grams, EPA Region VII Administrator, to

James J. O'Connell, KDHE Secretary, on January 31, 1996, the EPA

informed the KDHE of a violation of the ozone NAAQS. Quality-assured

air quality monitoring data indicated measured exceedances of the ozone

standard on July 11, 12, and 13, 1995, at the Liberty monitoring site

in Kansas City. The highest recorded value for each day was 0.128 ppm,

0.161 ppm, and 0.131 ppm, respectively. These exceedances, in

combination with the measured exceedance of 0.128 ppm recorded on July

29, 1993, constitute a violation of the standard.

As a result of this violation, Kansas was required to implement the

contingency measures identified in the approved SIP. In a July 28, 1995

letter from Roger Randolph (Air Pollution Control Program Director) to

William Spratlin (Air, RCRA, and Toxics Division Director), Missouri

requested guidance on responding to the KCMA ozone violation.

Specifically, Missouri requested flexibility in utilizing control

measures other than those identified in the approved SIP. Via an August

17, 1995, letter from William Spratlin to Roger Randolph, the EPA

affirmed that Missouri and Kansas may substitute other contingency

measures for those in the approved SIP, provided: (1) the substitute

measures would achieve substantially equivalent emission reductions;

(2) the substitute measures were submitted as a SIP revision; and (3)

the substitute measures were implemented before the 1996 ozone season.

It must be emphasized that this flexibility was extended to both Kansas

and Missouri.

To address the short-term need to control emissions, Kansas

promulgated a rule to limit the Reid Vapor Pressure (RVP) of the

gasoline sold during the summer months in the KCMA to 7.2 per square

inch (psi) (K.A.R. 28-19-79). This regulation became effective May 2,

1997. The EPA published final approval of Kansas' RVP rule on July 7,

1997 (Federal Register Vol. 62, No. 129, 36212). The approval became

effective on August 6, 1997.

To address the longer-term need to reduce VOC and nitrogen oxides

(NOX) emissions, the Mid-America Regional Council's Air

Quality Forum (MARC AQF), comprised of representatives from local

governments, business, and health and environmental organizations,

agreed to examine various alternative control strategies and recommend

a suite of viable measures to Missouri and Kansas. The AQF recommended:

(1) expanding public education efforts; (2) low RVP gasoline; (3) motor

vehicle I/M, (4) seasonal no-fare public transit; (5) a voluntary clean

fuel fleets program; and (6) additional transportation control

measures. The AQF also recommended a group of supplemental measures

aimed at reducing ozone levels. The emissions reductions associated

with the voluntary measures, specifically clean fuel fleets and

transportation control, cannot be quantified due to their voluntary

nature.

The Missouri Department of Natural Resources (MDNR) presented a

maintenance SIP, with the AQF recommendations, to the Missouri Air

Conservation Commission (MACC) on June 24, 1997. At that time, the MACC

recommended inclusion of a more timely and less politically sensitive

control measure in place of the I/M provision. As a result, on October

7, 1997, the AQF recommended the implementation of a reformulated

gasoline (RFG) program in the KCMA. In response, Kansas intends to

include RFG as a control measure in a year 2000 transitional attainment

plan to demonstrate compliance with the revised NAAQS for ozone, should

the area be eligible for transitional nonattainment status outlined in

the President's July 16, 1997, directive to Administrator Browner. The

intent is to have the RFG control measure in place prior to the

beginning of the 2001 ozone season. Kansas reserves the option to use

gasoline blends other than the Federal RFG blend, provided their use

achieves similar VOC and NOX emission reductions.

The final state submittal includes an emissions inventory; the two

creditable control strategies--7.2 RVP gasoline, RFG; additional

unquantifiable measures including voluntary clean fuel fleets and

seasonal low-fare transit; continued monitoring; verification of

continued attainment; and a contingency plan.

Because limiting the RVP of gasoline to 7.2 psi achieves VOC

emissions reductions of only 4.0 tons per day, additional reductions

are necessary to provide for reductions substantially equivalent to

those obtainable by implementing the contingency measures approved in

the 1992 SIP. The implementation of an RFG program is therefore

critical to meeting Kansas' obligation to achieve the necessary

reductions.

II. Evaluation Criteria

To evaluate the maintenance plan, the EPA referred to requirements

of section 175A of the Act. The EPA also issued guidance specifically

to address applicable procedures for handling

[[Page 3898]]

redesignation requests, including maintenance plan provisions

``Procedures for Processing Requests to Redesignate Areas to

Attainment,'' John Calcagni, Director, Air Quality Management Division,

to EPA Regional Division Directors, dated September 4, 1992. In

addition, the EPA reviewed the revised maintenance plan for evidence

that the substitute control measures provide for emissions reductions

which are substantially equivalent to those approved in the 1992 SIP,

pursuant to guidance given in the August 17, 1995, letter, from William

Spratlin to Roger Randolph. Finally, the EPA evaluated the revised

maintenance plan with respect to the ``Guidance for Implementing the 1-

Hour Ozone and Pre-Existing PM10 NAAQS,'' from Richard D.

Wilson, Acting Assistant Administrator for Air and Radiation, to EPA

Regional Administrators.

III. Review of Submittal

According to the September 4, 1992, memo from John Calcagni

regarding ``Procedures for Processing Requests to Redesignate Areas to

Attainment,'' a maintenance plan must provide for maintenance of the

ozone NAAQS for at least ten years after redesignation. Section 175A of

the CAA defines the general framework of a maintenance plan. The

Calcagni memo identifies the following list of core provisions

necessary to ensure maintenance of the ozone NAAQS: emissions

inventory, maintenance demonstration (including control measures), air

monitoring network, verification of continued attainment, and a

contingency plan. Below is a discussion of each of these provisions, as

addressed in the 1998 Revision to the Kansas City State Implementation

Plan for Control of Ozone.

A. Emissions Inventory

The emissions inventory for the KCMA was revised in 1995. In a

direct final rule (61 FR 18251), published on April 25, 1996, the EPA

approved the revised emissions inventory. The emissions inventory

estimated VOC and NOX actual emissions for 1990 and 1992

while using industrial growth factors to project VOC and NOX

emissions for 1995, 2000, 2005, and 2010. Point, area, mobile,

biogenic, VOC, and NOX emission totals were estimated. The

inventory summarized totals for each emissions category and reported

emissions by source type. VOC emissions for the entire KCMA were

estimated at 322,557 and 286,279 kilograms per summer day in 1990 and

1992, respectively. The present SIP revisions are based on the

inventory as revised in 1995.

B. Control Measures

The state has provided estimates of the achievable emissions

reductions for only two of the many measures (7.2 RVP gasoline and RFG)

included in the SIP. These estimates were evaluated to determine

whether they are substantially equivalent to the reductions for which

the 1992 SIP provides. In accord with the original maintenance plan,

implementation of a regulation requiring Stage II vapor recovery

systems at retail gasoline stations would result in daily VOC emissions

reductions of 6.9 tons per day. An additional 1.5 tons per day of VOC

reductions would be achieved through implementation of transportation

control measures, making the 1992 SIP designed to reduce VOC emissions

by a minimum of 8.4 tons per day. Accordingly, Kansas must demonstrate

the substitute control measures will provide for areawide VOC

reductions of at least 8.4 tons per day.

1. Gasoline Volatility Control

Typically reported as RVP, volatility is a measure of the tendency

of gasoline to evaporate. RVP, expressed in psi, denotes the pressure

exerted by a vapor at 100 deg.F. The evaporation of gasoline adds to

the quantity of VOCs in the atmosphere which contribute to ozone

formation.

As a result of the ozone violation in 1995, Kansas promulgated a

rule to limit the summertime RVP of gasoline sold in the Kansas portion

of the KCMA to 7.2 psi (K.A.R. 28-19-79). This regulation became

effective May 2, 1997. The EPA published final approval of Kansas' RVP

rule on July 7, 1997 (Federal Register Vol. 62, No. 129, 36212). The

approval became effective on August 6, 1997.

Emissions estimates for on-road mobile sources were developed using

the EPA MOBILE5a model. Evaporative emissions from off-road mobile

sources were estimated to decrease by 2.7 percent, assuming 90 percent

of the off-road emissions are combustive and 10 percent are

evaporative. Kansas has demonstrated that limiting the volatility of

gasoline to 7.2 pounds psi will reduce VOC emissions by 4.0 tons per

day within the KCMA.

2. RFG

RFG is a blend of gasoline containing oxygenates and lower levels

of toxic substances. It is designed to reduce emissions of pollutants,

including VOC from motor vehicle exhaust. RFG contains many of the same

ingredients found in conventional gasoline, but in different

quantities. The addition of oxygenates, such as ethanol or methyl

tertiary butyl ether, increases its oxygen content and thereby

increases the combustion efficiency of the vehicle. The evaporative

emissions can also be reduced depending on the RVP of the base gasoline

to which the oxygenates are added.

The RVP requirement for RFG in Kansas, as defined in 40 CFR

80.71(a), is 7.2 psi. Emission reductions from RFG were modeled using

the EPA's MOBILE5a emissions model and estimates of the number of

vehicle miles traveled in the KCMA. Emissions are projected to be 96.65

tons per day in 2000. After implementation of 7.2 RVP, the emissions in

2000 are projected to be reduced to 89.22 tons per day. If RFG were to

be implemented in 2000, emissions are projected to be reduced to 74.88,

for an estimated incremental reduction of 14.34 tons per day.

As part of this proposed SIP revision, the KDHE commits to include

RFG as a control measure in its year 2000 transitional plan as required

to demonstrate compliance with the revised ozone NAAQS. The intent is

to have the RFG control measure in place prior to the beginning of the

2001 ozone season. Kansas cited a preference for a 2001 implementation

schedule because it is consistent with the AQF recommendations and the

year 2000 transitional SIP planning process, and it provides reasonable

opportunity for fuel refiners nearest the KCMA to complete the

necessary capital improvements to compete for the newly created market

for RFG. Previously, Kansas was prohibited from implementing RFG

because the EPA had not promulgated the final regulation, making it

possible for former nonattainment areas to participate in the Federal

RFG program. However, this obstacle has been lifted by the EPA's

rulemaking signed by the Administrator September 21, 1998, and

published in the Federal Register on September 29, 1998 (63 FR 52093).

Therefore, the EPA expects that the Governor of Kansas will request

that the KCMA be included in the Federal RFG program. Upon fulfillment

of this commitment, the EPA will propose to fully approve this revision

to the maintenance SIP.

If the state does not opt in to the RFG program or adopt an

equivalent state fuel program, the state must, by the deadline

established in the final conditional approval, implement the

contingency measures identified in the 1992 SIP. In this event, the

state must adopt and submit any necessary regulations to implement the

1992 SIP contingency measures. If the state fails

[[Page 3899]]

to make a submittal by the deadline specified in the final conditional

approval, the conditional approval converts to a disapproval.

3. Clean Fuel Fleets

Clean fuel fleets programs take advantage of vehicles relying on

cleaner burning energy sources for fuel. These vehicles may operate on

an array of fuels including electricity, compressed natural gas,

propane, and ethanol blended gasolines. Because this program is

voluntary, Kansas is not seeking and the EPA is not approving credit

for emissions reductions under the maintenance plan.

4. Seasonal Low-fare Transit

The AQF and the MARC board recommended the area's transit providers

provide no-fare transit during peak ozone season beginning in 1997. The

Kansas City Area Transportation Authority requested the AQF endorse a

reduced-fare program, commencing in 1998. Participation in this program

is voluntary and difficult to estimate, and no permanent funding source

has been identified. Therefore, Kansas is not seeking and the EPA is

not approving credit for emission reductions for this program under

this maintenance plan.

5. Additional Supplemental Measures

The EPA supports Kansas' commitment to implement various additional

programs aimed at reducing VOC and NOX emissions.

Implementation of these programs will assist the KCMA in meeting both

the 1-hour and 8-hour ozone standards. Kansas is not claiming and the

EPA is not approving emissions reductions from these programs for

purposes of the SIP. These measures include enhanced traffic

signalization, a potentially expanded transit system, enhanced land-use

planning, stationary source emissions controls, expanded public

education programs, and air quality data collection.

C. Air Monitoring Network

The ambient air monitoring network which measures ozone

concentrations in the KCMA consists of six monitoring stations. Five

are located in Missouri at Liberty, Watkins Mill, Worlds of Fun, Kansas

City International Airport (KCI), and Richards Gebaur Airport. The

remaining monitoring station is located in Kansas City, Kansas. Liberty

and Watkins Mill are downwind, assuming predominant winds are from the

southwest. Two monitors, Worlds of Fun and KCI, are placed in populated

areas. Richards Gebaur is considered an upwind site, designed to

monitor ozone transport from outside the area. The final monitor is

located in downtown Kansas City, Kansas, in Wyandotte County.

Ozone concentrations may not exceed the 1-hour standard more than

an average of once per year at any single monitoring site over any

given three-year period. Eighteen (18) exceedances of the ozone

standard have been recorded in the KCMA from 1990 through 1998. Nine of

these exceedances occurred in 1995, with three each at the Liberty and

Watkins Mill sites, two at Worlds of Fun site, and one at the KCI site.

Four exceedances recorded at the Liberty monitor constituted the

violation triggering the implementation of the previously approved

contingency plan.

D. Maintenance of the Standard

By virtue of the approval of the 1992 maintenance SIP, the

Administrator deemed the VOC reductions for which the contingency

measures provided, necessary to promptly correct any violation of the

1-hour ozone standard which might occur subsequent to redesignation.

Hence, the revised contingency measures must provide for the equivalent

level of reductions. The Agency has determined that if Kansas meets the

conditions set forth in this action, the revised plan will achieve the

required reductions. The state has provided VOC emissions projections

for the ten-year period following maintenance plan development. In

addition, the state has committed to regularly updating the emissions

inventory for the KCMA to ensure that emissions trends are

appropriately tracked to facilitate future air quality planning

activities.

E. Contingency Plan

The revised maintenance plan includes additional control measures

to replenish the contingency measures that are being implemented in

response to the 1995 violation of the standard. These measures are to

be implemented in the event that additional violations are recorded.

The KDHE is committed to reducing combined Johnson County and Wyandotte

County VOC emissions by 5 percent in response to a future violation of

the 1-hour ozone standard.

In implementing this 5 percent reduction, the KDHE will review the

latest emission inventory data, perform a comprehensive evaluation of

available control strategies, and select those control measures that

provide the greatest air quality benefits and most cost-effective

response. The options to be considered for this shall include, but not

be limited to the following: stationary source controls (NOX

and/or VOC), Stage II vapor recovery, and enhanced vehicle emissions

reductions programs. These options will be considered in the order

listed, as necessary to fulfill the 5 percent reduction obligation. If

further violations of the 1-hour ozone standard occur, the KDHE will

again review the data and evaluate additional control strategies.

F. Additional Reasonably Available Control Technology (RACT)

Regulations

As a submarginal nonattainment area, the KCMA was required to

implement RACT controls under section 182(a)(2)(A) of the CAA. The

states of Missouri and Kansas implemented these regulations prior to

the redesignation of the area. The KDHE implemented RACT on all major

sources that were covered by control technique guideline (CTG)

categories I, II, and III. In addition, the KDHE implemented non-CTG

RACT on three source categories.

Kansas is currently developing a RACT rule to regulate the bakery

source category in the area. Presently only one source is known to

exist in the Kansas portion of the KCMA to require adoption of this

RACT regulation. In response to the 1995 ozone standard violation,

Kansas also initiated a source study to identify any additional

facilities or categories requiring the adoption of additional specific

RACT rules.

IV. Policy Review

Because Kansas City has recorded a violation of the 1-hour ozone

standard in 1995, and recent air quality analyses performed by Kansas

suggest Kansas City is likely to violate the new 8-hour standard,

Kansas must proceed to expeditiously implement the provisions of the

maintenance plan measures which are the subject of today's action.

Protecting the 1-hour ozone standard becomes increasingly important in

light of new requirements being established to implement the revised 8-

hour ozone standard, which was finalized July 16, 1997. For this new

standard, the EPA will establish a special ``transitional''

classification for areas that participate in a regional strategy or

that opt to submit early plans addressing the 8-hour standard. The

transitional classification will be available only to those areas

meeting certain criteria, including having air quality data meeting the

1-hour standard by 2000. These transitional areas will be subject to

less restrictive new source review and transportation conformity

requirements than other ozone nonattainment areas. These less

restrictive requirements are

[[Page 3900]]

important to companies seeking to expand existing operations or start

new operations. Therefore, achieving the reductions associated with the

maintenance plan proposed for approval today have critical implications

for the ability of the KCMA to meet the requirements of the new 8-hour

ozone standard. However, the control measures which would be

conditionally approved are required to be implemented first and

foremost to protect the 1-hour ozone standard.

Based on air quality data from 1996 through 1998 (after the

violation which triggered the contingency measures in the 1992

maintenance plan), the Kansas City area may be able to demonstrate that

it has now achieved the 1-hour ozone standard. However, the EPA's

``Guidance for Implementing the 1-Hour Ozone and Pre-Existing

PM10 NAAQS'' states that, in general, contingency measures

which were triggered prior to revocation of the 1-hour standard must be

retained. Therefore, although the EPA believes that the 1996 through

1998 data justify the brief delay in implementation of the substitute

contingency measures, it does not relieve the states of the need to

implement RFG, an equivalent state fuel, or one of the contingency

measures identified in the 1992 SIP.

V. Conclusion

The EPA is soliciting public comments on this notice and on issues

relative to the EPA's proposed action. Comments will be considered

before taking final action. Interested parties may participate in the

Federal rulemaking procedure by submitting written comments to the

address above.

VI. Proposed Action

In today's notice, the EPA proposes to conditionally approve

Kansas' 1998 revisions to the Kansas City ozone maintenance plan. This

includes the VOC control measures described above, the associated

emissions reductions, and the commitment to implement the additional

reductions as expeditiously as practicable. Full approval of the SIP is

conditioned upon receipt of one of the following: (1) a request from

the Governor of Kansas to require the sale of Federal RFG within the

Kansas portion of the KCMA; (2) adopted regulations implementing the

contingency measures identified in the 1992 maintenance plan, i.e.,

Stage II vapor recovery or an enhanced I/M program; or (3) adopted

regulations to implement a state fuel program which will achieve

reductions equivalent to a Federal RFG program. In the case of options

2 or 3, upon receipt of regulations implementing these provisions and a

request to amend the maintenance plan accordingly, the EPA will

initiate rulemaking on this subsequent revision. If the state fails to

submit one of the above, the conditional approval converts to a

disapproval. The EPA proposes to establish a deadline for meeting the

condition which is one year from the effective date of the final rule

conditionally approving the state's 1998 submittal. The statute

requires that the condition be met within one year of the conditional

approval. The EPA seeks comments on whether a shorter deadline should

be established.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

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

considered separately in light of specific technical, economic, and

environmental factors, and in relation to relevant statutory and

regulatory requirements.

VII. Administrative Requirements

A. Executive Order (E.O.) 12866

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

regulatory action from E.O. 12866, entitled ``Regulatory Planning and

Review.''

B. E.O. 12875

Under E.O. 12875, the EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal Government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or the EPA consults with those governments. If the EPA

complies by consulting, E.O. 12875 requires the EPA to provide to the

OMB a description of the extent of the EPA's prior consultation with

representatives of affected state, local, and tribal governments, the

nature of their concerns, copies of any written communications from the

governments, and a statement supporting the need to issue the

regulation. In addition, E.O. 12875 requires the EPA to develop an

effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.''

Today's proposal would not create a mandate on state, local, or

tribal governments. It would merely approve actions which the state has

already chosen to take. Accordingly, the requirements of Section 1(a)

of E.O. 12875 do not apply to this rule.

C. E.O. 13045

Protection of Children from Environmental Health Risks and Safety

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

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that the

EPA has reason to believe may have a disproportionate effect on

children. If the regulatory action meets both criteria, the Agency must

evaluate the environmental health or safety effects of the planned rule

on children, and explain why the planned regulation is preferable to

other potentially effective and reasonably feasible alternatives

considered by the Agency.

This rule is not subject to E.O. 13045 because it does not involve

decisions intended to mitigate environmental health or safety risks

that the EPA has reason to believe may have a disproportionate effect

on children.

D. E.O. 13084

Under E.O. 13084, the EPA may not issue a regulation that is not

required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

Government provides the funds necessary to pay the direct compliance

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

those governments. If the EPA complies by consulting, E.O. 13084

requires the EPA to provide to the OMB, in a separately identified

section of the preamble to the rule, a description of the extent of the

EPA's prior consultation with representatives of affected tribal

governments, a summary of the nature of their concerns, and a statement

supporting the need to issue the regulation. In addition, E.O. 13084

requires the EPA to develop an effective process permitting elected

officials and other representatives of Indian tribal governments ``to

provide meaningful and timely input in the development of regulatory

policies on matters that significantly or uniquely affect their

communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. This action does not involve

or impose any requirements that affect Indian tribes. Accordingly, the

requirements of Section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act (RFA)

The RFA generally requires an agency to conduct a regulatory

flexibility

[[Page 3901]]

analysis of any rule subject to notice and comment rulemaking

requirements, unless the agency certifies that the rule will not have a

significant economic impact on a substantial number of small entities.

Small entities include small businesses, small not-for-profit

enterprises, and small governmental jurisdictions. This proposed rule

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

entities because SIP approvals under section 110 and Subchapter I, Part

D of the CAA do not create any new requirements, but simply approve

requirements that the state has already chosen to impose. Therefore,

because the Federal SIP approval does not create any new requirements,

I certify that this action will not have a significant economic impact

on a substantial number of small entities. Moreover, due to the nature

of the Federal-state relationship under the CAA, preparation of

flexibility analysis would constitute Federal inquiry into the economic

reasonableness of state action. The CAA forbids the EPA to base its

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

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

F. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

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

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

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

EPA must select the most cost-effective and least burdensome

alternative that achieves the objectives of the rule and is consistent

with statutory requirements. Section 203 requires the EPA to establish

a plan for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

The EPA has determined that the approval action promulgated does

not include a Federal mandate that may result in estimated annual costs

of $100 million or more to either state, local, or tribal governments

in the aggregate, or to the private sector. This Federal action would

approve requirements which the state has chosen to undertake under

state or local law, and imposes no new requirements. Accordingly, no

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

private sector, would result from this action. This action would not

result in annualized costs of 100 million dollars or more.

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

Dated: January 15, 1999.

Dennis Grams, P.E.,

Regional Administrator, Region VII.

[FR Doc. 99-1760 Filed 1-25-99; 8:45 am]

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