# Approval and Promulgation of Implementation Plans; State of Kansas

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URL: https://www.frixlaw.com/law-library/documents/fr%3A99-1760

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** January 26, 1999
- **Citation:** 64 FR 3896

## Text

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.

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

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]
BILLING CODE 6560-50-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-1760. Public record. Not legal advice.