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[FRDoc. 99 16097 Filed 6 28 99; 8:45 am] BILLING CODE 6560-50-P



### ENVIRONMENTAL PROTECTION

AGENCY
40 CFR Part 52 [AZ079-0014; FRL-6365-9]
RIN2060-A122 

### Approval and Promulgation of Implementation Plans;ArizonaMaricopa Nonattainment Area; PM-10

AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule.

SUMMARY: EPA is approving under the Clean Air Act (CAA or Act) arevision
to the Arizona State Implementation Plan (SIP) reflecting Arizona State legislation that provides for the expeditious implementation ofbest 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 thereasonably available control

measure (RACM) requirements ofthe Act, EPA is also withdrawing a federal 

### implementation plan (FIP)commitment, promulgated under section 110(c) ofthe Act, to adopt and implement RACM for agricultural fields and aprons in the Maricopa area. EFFECTIVE DATE:July 29, 1999. FORFURTHER 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. CleanAirAct Requirements

1. Designation and Classification

Portions ofMaricopa County I are designated nonattainment for the PM10 national ambient air quality standards (NAAQS) 2 and were

1"Maricopa," "Maricopa County" and "Phoenix"

are used interchangeably throughout this final rule to refer to thenonattainment area.

2There aretwo PM 10 NAAQS, a24-hour standard and an annual standard. 40 CFR50.6. EPA promulgated these NAAQS onJuly 1, 1987 (52 FR 24672), replacing standards for total suspended particulate withnew standards applyingonly to particulate matterup to 10microns in diameter (PM 10). At that time,EPA established twoPM 10 standards. The annual PM 10 standard is attained originally classified as "moderate" pursuant to section 188(a) ofthe 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

ademonstration that best available control measures (BACM)will be implemented byJune 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.

Pursuant to section 189(b)(2), the State ofArizona was required to submit

a serious area plan addressing both PM10 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 planningrequirements for PM-10 nonattainment areas are set out in subparts 1 and 4 ofTitle I ofthe 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

when the expected annual arithmetic average ofthe 24-hour samples fora period ofoneyear does not exceed 50 micrograms percubic meter (pg/m 3).The 24-hour PM 10 standard of 150 pg/m3is attained ifsamples taken for 24-hour periods haveno more than oneexpected exceedance peryear, averaged

over 3 years. See40 CFR50.6 and 40CFR part 50, Appendix K.

On July 18, 1997, EPA revised boththe annual and the 24-hour PM 10 standards and also established twonew standards for PM,both applying onlyto particulate matter up to 2.5 microns in diameter (PM 2.5)(62 FR 38651). Today's actionsrelate 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 ofAppeals for the D.C. Circuit inAmerican TruckingAssoc., 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 werepublished on July 18, 1997 and became effective September 16, 1997. However, thePM 10 standards promulgated

on July 1, 1987 werenotan issuein this litigation, and the Court's decision does not affectthe applicability ofthose standards in the Maricopa

area. Codification ofthose standards continues to be recorded at40 CFR 50.6. In thenoticepromulgating the revised PM 10 standards, theEPA Administrator decided that theprevious PM 10 standards that werepromulgated on July 1, 1987, and provisions associated with them, would continue to apply in areas subjectto the 1987 PM1O standards until certain conditions specified in 40 CFR 50.6(d) aremet. See 62 FRat 38701. EPAhas not taken any action under 40 CFR 50.6(d) for the Maricopa area. be obtained through the adoption, at a minimum, ofreasonably 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 mustbe implemented "as soon as possible." Delaney v. EPA, 898 F.2d 687, 691 (9th Cir. 1990). EPAhas interpreted this requirement to be "as soon as practicable." See 55 FR41204, 41210 (October 1, 1990) and 63 FR28898, 28900 (May 27, 1998).

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 Iofthe 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 CI ofthe General Preamble suggests starting to define RACM with the list ofavailable 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 ofPM-10,

or any measures that areunreasonable for technology reasons or because ofthe
cost ofthe 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 (April28, 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

3States 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 ofreasonable further progress (RFP) meeting the requirements ofCAA sections 172(c)(2) and 171(1). Section 171(1) defines RFP as "such annualincremental reductions in emissions ofthe relevant air pollutant as are required bypart D of theAct ormay reasonably be required by the Administrator for the purpose ofensuring attainment ofthe applicable national ambient air quality standard by the applicable attainment date."

4See "State Implementation Plans; General Preamble forthe Implementation ofTitle Iofthe Clean AirAct Amendments of1990," (General Preamble) 57FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992). 

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agencies have adequate personnel, funding and authority under section 110(a)(2)(E)(i) and 40 CFR 51.280; and the description ofenforcement methods

as required by 40 CFR 51.111 and EPA guidance implementing these provisions.

B. EPA 'sModerateA reaPM-10FIP for Phoenix

On August 3, 1998, EPA promulgated under the authority ofCAA 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 FR41326 (August 3, 1998).

In the FIP, EPA promulgated, among other things, for both the annual and 24- hour PM-10 NAAQS, ademonstration that RACM will be implemented in the Phoenix area as soon as practicable. 5As part ofits RACM demonstration, EPA promulgated an enforceable commitment, codified at 40 CFR 52.127,
to ensure that RACM for agricultural

sources willbe expeditiously adopted and implemented. See 63 FR41326, 41350.6

II. Proposed Actions

On May 29, 1998, Arizona Governor Hull signed into law Senate Bill 1427 (SB 1427) which revised title 49 ofthe Arizona Revised Statutes (ARS) by adding section 49-457. This legislation established an agricultural best management practices (BMPs) committee for the purpose ofadopting by rule byJune 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.

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

5In addition to the RACM demonstration, EPA also promulgated a demonstration ofreasonable 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

640 CFR52.127 provides that "[t]he
Administrator shall promulgate and implement reasonably available control measures (RACM) pursuant to section 189(a)(1)(C) ofthe Clean AirAct for agricultural fields and aprons in theMaricopa County (Phoenix)PM 10 nonattainment area according to the following schedule: by no later than September, 1999, the Administrator shall sign

aNotice ofProposed Rulemaking; by no later than April, 2000, theAdministrator shall sign aNotice ofFinal Rulemaking; and by no later than June 2000, EPA shall begin implementing the final RACM."

7 "Regulated agricultural activities" are defined as "commercial farmingpractices that mayproduce PM 10 particulate emissions within the Maricopa PM 10 particulate nonattainment area." ARS 49 457.N.4. On December 30, 1998, EPAproposed to approve the legislation into the Arizona SIP for the Phoenix PM-10 nonattainment area under section 110(k)(3) ofthe CAA asmeeting the requirements ofsections 110(a) and 189(a)(1)(C) and proposed to withdraw the FIPRACM commitment for such

sources. Please referto Notice of Proposed Rulemaking (63 FR71816) for greater detail on the Arizona legislation. For EPA's SIP approval criteria and its evaluation ofthe Arizona legislation,

see 63 FR71817.

Il. 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, StaffAttorney, 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

aJanuary 29, 1999 letter, however, opposes EPA's proposed actions for a variety ofreasons. EPAresponds to ACLPI's specific major comments below. The reader is referred to the technical support document (TSD)for this rulemaking for EPA'sresponses to allofACLPI'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 asthe FIPcommitment. Therefore ACLPIincorporates by reference into its comments its brieffor petitioners in Oberv.Browner,No. 98- 71158.8

In the Ober litigation, EPA fully responded to the arguments raised by the petitioners in their briefas they relate to the action at issue there, EPA's FIP commitment for agricultural sources in Phoenix. For the complete text ofour responses to those arguments, see brief for respondents atpp. 10-18 and 43-59.

8Gber is apending petition for review, filed by ACLPI on behalfofPhoenix residents, in the U.S. Court ofAppeals for theNinth Circuit, ofEPA's action in promulgating the Phoenix FIP. While ACLPI's comment letter does not specify what portions ofthe petitioners' briefit intends to incorporate, EPA believes that the only arguably relevant portion is at pp. 29 36, relating toEPA's commitment for agricultural sources, and therefore addresses here only the arguments in thosepages. Because ACLPIchose not to recast the arguments in its Ober briefin the
contextofEPA'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 ofthe brieffor petitioners as filed in the Ninth Circuit. In the EPAresponse sections, however,

we have addressed the comments as if they refer to this proposed action and notthe FIPpromulgation.

The gravamen ofACLPI's complaint is that the State's regulatory approach is that ofacommitment 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 ofthisrulemaking. Therefore, the original rationale for that approach is ofcentralrelevance and we briefly summarize ithere as aprologue to the specific comments and responses that follow:

EPA has, beginning with theproposed rulemaking for its August 3, 1998 FIP and culminating in the Ninth Circuit litigation, explained at length its reasoning in promulgating an enforceable commitmentfor the control ofPM-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 FR71817; brieffor respondents at43-59. In short:

In general, EPA believes thatbecause agricultural sources in the United States vary by factors such asregional climate, soil type, growing season, crop type, water availability, andrelation tourban centers, each PM 10 agricultural strategy isuniquely based on local circumstances. Furthermore, EPA determined that thegoal ofattainingthe PM 10 standards inMaricopa County with respect to agricultural sources would bebest served by engaging allinterested stakeholders in ajoint comprehensive process on the appropriate mix of agricultural controls to implement in Maricopa County.EPA stated its beliefthat thisprocess, despitethe additional time needed to work through it,will ultimately result inthe best and most cost-effective controls on agricultural sources in the County.

Inthe FIP notices, EPA alsoexplained its intention tomeet its RACM commitment by developing andpromulgating BMPs. Given thenumber ofpotential BMPs, the variety of crops types, the need forstakeholder input, andthe time necessary todevelop theBMPs intoeffective control measures, EPAbelieves thatthe adoption and implementation schedule inthe FIP is as expeditious as practicable. * * * 

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63 FR71817. 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 FR41350. Specific ACLPIComments andEPA Responses
Comment:ACLPI claims in its Ober briefthat EPAhas not met its burden under its policy ofdemonstrating that available agricultural controls are infeasible or otherwise unreasonable. Petitioners' briefat 32. 9

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 theFIP was developed and promulgated to determine the appropriate agricultural controls for the Phoenix area, EPA fullyjustified its conclusion that the only responsible approach was the one itpursued, 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

samereason, 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, theFIP approach evolved into the State legislation; therefore the samejustification exists for the State in adopting its legislation.

As noted above, in developing the FIP for these sources, EPApromoted 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 amongthe participants on the elements ofa workable and expeditious agricultural strategy that would be incorporated initially into the FIP and subsequently into State legislation. 63 FR 15936-15937. In its FIPproposal, EPA explained that its enforceable commitment included a series of milestones to assure adoption and implementation ofRACM. The Agency further explained:

EPA would initially convene a stakeholderbased process to begin formal development of draft BMPs. Stakeholder groups represented will likely include but notbe limited to the Arizona Farm Bureau Federation, Maricopa

9"ACLPI" and "petitioners" are used interchangeably throughoutthis document except where otherwiseindicated. County Farm Bureau, ADEQ [Arizona Department ofEnvironmental Quality], MAG [Maricopa Association ofGovernments], MCESD [Maricopa CountyEnvironmental Services Department], NRCS [Natural Resource Conservation Service], Cooperative Extension, the University ofArizona, tribes, and environmental and/or public health organizations. This effort wouldbuild 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 oftheBMPs. Compliance assistance would also be akey element ofthe BMP program. Id. at 15937.

In the FIPproposal, EPA also addressed the issue ofhow the federal commitment could ultimately be replaced:

While EPA's intended BMP approach is designed tomeet the RACMrequirement, the Agency believes it can serve as apotential startingpoint and model for the development ofaState-led SIPprocess for addressing BACM [BestAvailable ControlMeasures] for agricultural sources. Thus, the stakeholders could potentially build upon the BMP approach initiated for theFIP to address both RACM and BACM requirements for the agricultural sectorin the SIP. 1°TheArizona Farm Bureau Federation, the Maricopa County Farm Bureau, NRCS, ADEQ, and other regulatory agencies are currently working collaboratively todevelop aStateled BMP process forthat purpose. EPA stronglyendorses such aprocess.

Id. at 15937. Thus it was clear from the beginning ofthe 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 theFIP 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 bythe State as a SIP revision are virtually coextensive with that oftheFIP. For example, the legislation establishes a committee with the authority to adopt BMPs and conduct an educational

1OAt the timethemoderate area FIPwas being developed, the State was preparing to develop its plan to meetthe serious area PM 10 requirements oftheAct inthe Phoenix area, one ofwhich is provisions to assure that thebest available control

measures for the control ofPM 10 shallbe implemented. Seegenerally CAA section 189(b). program. See ARS 49-457.A-F, H and M. The provisions ofthe State legislation are discussed in detail in the proposal for this action at 63 FR71816- 71817.

Furthermore, in practice, a single entity hasbeen established and has been operating to develop BMPs to comply with both the requirements oftheFIP and State legislation. This entity,known

as the Best Management Practices committee, hasbeen meeting on a regular basis since September, 1998. In addition, aTechnical Working Group

was formed which is currently reviewing and evaluating alist ofover 50 BMPs for possible usein Maricopa County. The Technical Working Group will then forward its recommendations
to the BMP committee. Together, the committee and the working group are comprised ofrepresentatives 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 thepublic and are expected to be adopted by June 10, 2000. Thus, for allpractical purposes, the implementation efforts to date ofthe FIP commitment and the Arizona legislation are effectively the

same.

As wehave demonstrated above, the FIP and the State legislation were developed bythe same participants and through the same process and were intended to be substantially identical. Therefore, thejustification 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 ofthatjustification in connection with the FIP promulgation and thejudicialchallenge
to thatrulemaking. See letter from ACLPIto EPA, Region 9, May 18, 1998 and petitioners' briefat29-36. For these
reasons, whileEPA acknowledges that the SIP submittal did not contain the "reasoned justification" provided for in Agency guidance, EPA believes that such a Statejustification would have been the same as that provided byEPA in connection with the FIP. Therefore,
to the extentthat the State did not duplicate that rationale, it is ofno consequence. By its incorporation ofits briefin Ober into its comments on the proposal for this action, ACLPI hasput

liThe Arizona legislation operates as a commitment enforceable under CAA section 304by mandating the adoption by June 10, 2000 ofa general permit specifying BMPs with which sources must comply by December 31, 2001 and the initiation ofan education program byJune 10, 2000. ARS 49 457.G, H, M. 

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its arguments in the record for this rulemaking.
Cornm ent:In their brief,petitioners argue that EPA's deferral ofagricultural controls in the FIPthrough theuse ofa commitment is not reasonable because "[t]echniques for controlling agricultural emissions are well known."
In support ofthis argument, petitioners cite, amongother 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' briefat 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 theFIP 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 FR41332-41333; 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 ofthese uncertainties, in the context ofan assessment ofthe potential mix of control measures, is critical to a determination ofwhether controls such

as those contained in the SCAQMD rules are reasonably available for the Maricopa County nonattainment area and will contribute to attaining the PM10 standards in the area." 12Id. at pp.

12EPA provided examples ofthe differences between Maricopa County and the Coachella Valley that affect control strategy choices. Forinstance, 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 perhour. 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 bycotton, alfalfa, and wheat, while the Coachella Valley primarily grows fruits and vegetables), these crops have different planting and growing patterns. 16-17. That reasoning applies to the State legislation as well.

Moreover, contrary to ACLPI's suggestion in its brief,the 1996 Governor's task force report supportsnot undermines-the State's approach
to agricultural controls in its legislation. That report recommends the "[d]evelopment, implementation, and documentation ofspecific voluntary practices to reduce dust emissions from agricultural practices" and specifies that they "may become part ofa 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 ofthe Governor's Air Quality task Force; Recommended Long-term Control Measures for Ozone, Carbon Monoxide, and PM-10, December 2, 1996, p. III85-88. 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 ofsuch 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 ofthose measures to a specific area, like Maricopa County, is reasonable.

To takejust one ofthe 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 ofspecific grasses, crops and trees, and revising grazing practices. It acknowledges that resorting to some ofthese modified farming approaches "would require initial capital investments bythe farming industry for new equipment." Fugitive Dust Background Document and Technical Information Document for Best Available Control Measures, U.S.EPA, Office ofAir 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 FRat 41333-41334. It is because agricultural controls can be costly and intersect with land management practices and farming issues thatEPA'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' briefat 32.

Comment:According to the petitioners, citing CAA section 172(c)(1), the "wholesale deferral of agricultural controls [in theFIP] is utterly indefensible because the Act required adoption ofall reasonably available controls as expeditiously as practicable." They contend that for moderate PM-10 areas, the Act set an explicit, absolute deadline ofDecember 10, 1993 for implementing such

measures under section 189(a)(1)(C) and that where an absolute deadline under the Act haspassed, EPA must correct the deficiency "as soon aspossible" to effectuate Congressional intent. Delaney

v.EPA, 898 F.2d 687, 691, 695 (9thCir. 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 ofPM-10 is implemented byDecember 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 aspracticable" 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 atissue here was developed, the applicable deadline became "as soon aspossible" under Delaney, 898 F.2d at 691. EPA has interpreted this requirement to be "as soon aspracticable." 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 thatthe State legislation provides for the expeditious implementation ofRACM because the implementation date for the BMPs in the State plan is December 31, 2001 compared to an implementation date of June 2000 for theFIP. 

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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, byJune 2000. 63 FR41350. Prior to proposing the FIP and as part ofthe stakeholder process, EPA, in conjunction with MCFB, concluded that it would notbe 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 willbegin with an extensive collaborative public outreach and education campaign." 63 FR 15937. EPA's intention to begin its education program asthe firstphase ofits 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 theFIPbecause it provides for full compliance with the BMPs byDecember 31, 2001, while the FIPhas no such full or final implementation deadline. See 40 CFR 52.127; 63 FR41350. Corment: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' briefat 34-36.

Response:Historically EPAhas 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., Friendsofthe Earthv. EPA, 499 F.2d 1118, 1124 (2d Cir. 1974). 13 Indeed, in

13Courts have agreed that such commitments are enforceable by the publicunder the CAA citizen suit provision, section 304. See, e.g.,American LungAssociation of New Jerseyv. Kean, 670 F. Supp. 1285 (D.N.J. 1987), aff'd, 871 F.2d 319 (3d Cir. 1989); NRDCv. New York StateDep'tof EnvironmentalConservation,668 F. Supp. 848 Kamp v. Hernandez,752 F.2d 1444, 1446, modified in other part, 778 F.2d 527 (9th Cir. 1985), the courtreviewed EPA's approval ofa plan that required Arizona to adoptregulations in the future to control fugitive emissions. Petitioners challenged EPA's approval, claiming that the lackof such controls in the plan meant that it did not assure attainment and maintenance ofthe 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 complexjob" require that EPAbe given some flexibility to approve nearly complete implementation plans." Id. at 1455. Here, as shown above, itwas 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 aspracticable.

Petitioners rely onNRDCv. 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 ofthe 1990 Amendments to the Act, to conditionally approve a SIP submittal which consisted entirely ofa commitment letter to submit the required measure by adate 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 FR71818.

Moreover, when section 110(k)(4) was enacted as part ofthe 1990 Amendments, itprovided anew type of approval for alimited 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-

(S.D.N.Y. 1987); Citizens foraBetterEnvironment

v. Deukmejian, 731 F. Supp. 1448, reconsideration granted in part, 746 F. Supp. 976 (N.D. Cal. 1990); CoalitionAgainst Columbus Centerv. New York, 967 F.2d 764 (2d Cir. 1992); Trustees forAlaska v. Fink, 17 F.3d 1209 (9th Cir. 1994).

14Under section 1 10(k)(4), the Administrator "may approve aplan revision based on a commitment ofthe State to adopt specific enforceable measures by a date certain," within one year after the date ofapproval of theplan revision. Any such conditional approval shall betreated as

a disapproval if the Statefails to comply with such commitment.

15Asnoted above,under section 110(k)(4), ifa commitment is not fulfilled, the conditional approval must be converted to a disapproval. Once

a SIPprovision is disapproved, there is no longer
any commitment left to enforce under the Act. established policy ofusing 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).

IV.Final Actions

EPA has evaluated ARS 49-457 and has determined that itis consistent with the CAA and EPA regulations. Therefore, EPA is approving ARS 49- 457 under section 110(k)(3) ofthe CAA

as meeting therequirements ofsections I10(a) and 189(a)(1)(C). Because EPA is approving the Arizona statute as meeting the RACM requirements ofthe CAA for agricultural sources in the Phoenix area, EPA is also withdrawing the FIP RACM commitment for such

sources by deleting §52.127, Commitment to Promulgate and Implement Reasonably Available Control Measures for the Agricultural Fields and Aprons, in subpart D ofpart 52,chapter I, title 40ofthe 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 ofspecific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

V. Administrative Requirements

A. Executive Order12866

The Office ofManagement and Budget (OMB)has exempted this regulatory action from Executive Order 12866, Regulatory Planning and Review.

B. Executive Order12875

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 ofManagement and Budget a description ofthe extent ofEPA's prior consultation with representatives of affected state, local and tribal governments, the nature oftheir
concerns, copies ofany written communications from the governments, and a statement supporting the need to issue the regulation. In addition, Executive Order 12875 requires EPA to 

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develop an effective process permitting elected officials and other representatives ofstate, 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) ofExecutive Order 12875 do not apply to thisrule.

C.Executive Order13045

Protection ofChildren from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to anyrule 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 hasreason 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 theplanned regulation is preferable to otherpotentially 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 Order13084

Under Executive Order 13084, Consultation and Coordination with Indian tribal Governments, EPA may not issue aregulation that is not required by statute, that significantly or uniquely affects the communities ofIndian 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. IfEPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section ofthe preamble to the rule, a description ofthe extent ofEPA's prior consultation with representatives ofaffected tribal governments, a summary ofthe nature oftheir concerns, and a statement supporting the need to issue theregulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives ofIndian 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 ofIndian tribal governments. Accordingly, the requirements ofsection 3(b) of Executive Order 13084 do not apply to this rule.

E. RegulatoryFlexibility Act

The Regulatory Flexibility Act generally requires an agency to conduct

aregulatory flexibility analysis ofany 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 ofsmall entities. Small entities include small businesses, smallnot-for-profit enterprises, and small governmental jurisdictions. This final rule will not have a significant impact on a substantial number ofsmall 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 ofsmall entities. Moreover, due to the nature ofthe Federal-State relationship under the Clean Air Act, preparation offlexibility analysis would constitute Federal inquiry into the economic reasonableness ofstate action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. UnionElectricCo., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

F. UnfundedMandates

Under section 202 ofthe Unfunded Mandates Reform Act of 1995 ("Unfunded Mandates Act"), signed into law on March 22, 1995, EPA must prepare abudgetary 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 oftherule 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 mayresult in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to theprivate 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.NationalTechnology Transferand AdvancementAct
Section 12(d) ofthe National Technology Transfer and Advancement Act of 1995 (NTTAA),Public Law 104- 113, Section 12(d) (15 U.S.C. 272 note) directs EPAto 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 EPAto provide Congress, through OMB, explanations when the Agency decides
notto use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, EPA did not consider theuse ofany voluntary

consensus standards.

H. Submissionto Congressandthe ComptrollerGeneral

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 arule report, which includes a copy ofthe rule,to each House ofthe Congress and to the Comptroller General ofthe United States. EPA will submit a report containing thisrule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the Federal Register.This rule is not a "major" rule as defined by 5 U.S.C. 804(2).

I. Petitions forJudicial Review
Under section 307(b)(1) ofthe Clean AirAct, petitions forjudicial review of this action must be filed in the United States Court ofAppeals for the appropriate circuit by August 30, 1999. Filing apetition for reconsideration by 

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the Administrator ofthis final rule does not affect the finality ofthisrule for the purposes ofjudicialreview nor does it extend the time within which apetition forjudicial 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).)

ListofSubjects in 40 CFR Part52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter.

Dated: June 17, 1999. CarolM.Browner,
Administrator.



### Part 52, chapter I, title40 oftheCode ofFederal Regulations is amended as follows:


### PART52-[AMENDED]

1.The authority citation for part 52 continues to read as follows:

Authority:42U.S.C. 7401 etseq. 

### Subpart D-Arizona

2. Section 52.120 is amended by addingparagraph (c)(93) to read as follows: 

### §52.120 Identificationofplan.

(c) * * * (93) Plan revisions were submitted on September4, 1998 by the Governor's designee.

(i) Incorporation byreference. (A) Arizona Revised Statute 49-457.

§52.127 [Removed and Reserved]



### 3. Section 52.127 isremoved and reserved. [FRDoc. 99 16371 Filed 6 28 99; 8:45 am]

BILLING CODE 6560-50-P



### ENVIRONMENTAL PROTECTION

AGENCY
40 CFR Parts 141 and 142 [FRL-6369-1]

National Primary DrinkingWater Regulation:Consumer Confidence Reports; Correction

AGENCY: Environmental Protection Agency (EPA). ACTION: Finalrule; correction.

SUMMARY: EPA published in the Federal Register ofAugust 19, 1998, a final rule setting out the requirements for annual drinking water quality reports that water suppliers must provide to their
customers. The final rule included several minortypographical mistakes. This document corrects those mistakes. DATES: Effective on June 29, 1999. FOR FURTHER INFORMATION CONTACT: Rob Allison, 202-260-9836; E-mail: allison.rob @epa.gov. SUPPLEMENTARY INFORMATION: In the August 19, 1998 FederalRegister (63 FR 44511), EPA published the Consumer Confidence Report Rule. Paragraph fof the section on Report Content 

### (§141.153) mistakenly refersto the requirements of§ 141.153(d)(7) when it 

### should refer to § 141.153(d)(6). This rule corrects thatmistake.

The preamble to the August 19, 1998 rule explained that systems that detect certain contaminants at concentrations 

### above 50% ofthe applicable MCLor action level must include additional educational information about those contaminants in their reports. As explained in the preamble to the final rule, EPA intended that all systems detecting a contaminant at greater than 50% ofthe MCLor AL and not in violation or exceedence would include this educational statement. (See discussion at 63 FR44514 (August 19, 1998)). Systems that violate or exceed the applicable National Primary Drinking Water Regulation would not include this additional statement 

### because anotherpart oftherulerequires them to provide a clear and readily understandable explanation ofthe violation, including the potential adverse health effects. EPA's rule language at § 141.154(d) inaccurately described this requirement when it said that the requirement applied to "systems which detect lead above the action level in more than 5%, but fewer than 10%, ofhomes sampled...." EPA's phrasing inadvertently exempts systems that detect lead above the AL in precisely 10% ofhomes sampled. EPA is clarifying its requirement by amending the statement to read "Systems which detect lead above the action level in more than 5%, and up to and including 10%, ofhomes sampled

In addition, Appendices A and Bto Subpart 0 mischaracterized regulatory levels for total coliforms and total trihalomethanes. The Appendices listed the Maximum Contaminant Level Goal (MCLG)for Total Trihalomethanes (TTHMs) as zero. This is incorrect; under current EPAregulations, TTHMs have no MCLG. This notice amends Appendices A and Bto replace the number zero for the TTHMs MCLG with "n/a" (the abbreviation for "not applicable.") Similarly, the Appendices 

### mistakenly listed theMaximum ContaminantLevel forTotal Coliforms

as "presence ofcoliform bacteria in >5% ofmonthly samples". EPAis today correcting the Appendices to show that the MCL fortotal coliforms is "(systems 

### thatcollect 40 ormore samples per month) 5% ofmonthly samples are 

### positive; (systemsthat collect fewer than40 samples permonth) 1positive monthly sample'.

Finally, in paragraphs (f)(2) and (f)(3) ofthe section on Special Primacy Requirements (§ 142.16), therule mistakenly refers to 40 CFR 141.155(b) when it should refer to 40 CFR 141.155(c). This amendment corrects that mistake.

Section 553 ofthe Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good

cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, an agency may issue arule withoutproviding notice and an opportunity for public comment. EPA has determined that there is good cause for making today'srule final without prior proposal and opportunity for
comment because EPA merely is correcting minorerrors in the promulgated rule. Thus, notice and public comment procedure are unnecessary. The Agency finds thatthis constitutes good cause under 5 U.S.C. 553(b)(B).Moreover, since today's action does not create any new regulatory requirements and affected parties have known ofthe underlying rule since August 19, 1998, EPA finds that good cause exists to provide for an immediate effective datepursuant to 5 U.S.C. 553(d)(3) and 808(2).
Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October4, 1993), this action is
not a "significant regulatory action" and is therefore not subject to review bythe Office ofManagement and Budget. In addition, this action does not impose any enforceable duty, contain any unfunded mandate, or impose any significant or unique impact on small governments as described in the Unfunded Mandates Reform Act of 1995 (Pub.L. 104-4). This rule also does not require prior consultation with State, local, and tribal government officials as specified by Executive Order 12875 (58 FR 58093, October 28, 1993) or Executive Order 13084 (63 FR27655, May 10, 1998), or involve special consideration ofenvironmentaljustice related issues as required by Executive Order 12898 (59 FR7629, February 16, 1994). 

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