Federal Register/Vol. 64, No. 124/Tuesday, June 29, 1999/Rules and Regulations

[FR Doc. 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]

RIN 2060-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) a revision

to the Arizona State Implementation

Plan (SIP) reflecting Arizona State

legislation that provides for the

expeditious implementation of best

management practices to reduce fugitive

dust from agricultural sources in the

Maricopa County (Phoenix) PM-10

nonattainment area. Because EPA is

approving the State legislation as

meeting the reasonably available control

measure (RACM) requirements of the

Act, EPA is also withdrawing a federal

implementation plan (FIP) commitment,

promulgated under section 110(c) of the

Act, to adopt and implement RACM for

agricultural fields and aprons in the

Maricopa area.

EFFECTIVE DATE: July 29, 1999.

FOR FURTHER INFORMATION CONTACT: John

Ungvarsky at (415) 744-1286, Air

Division, U.S. Environmental Protection

Agency, Region 9, 75 Hawthorne Street

(AIR2), San Francisco, CA 94105. This

document is also available as an

electronic file on EPA's Region 9 web

page at http://www.epa.gov/region09/

air.

SUPPLEMENTARY INFORMATION:

I. Background

A. Clean AirAct Requirements

1. Designation and Classification

Portions of Maricopa 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 the nonattainment area.

2There are two PM 10 NAAQS, a 24-hour

standard and an annual standard. 40 CFR 50.6. EPA

promulgated these NAAQS on July 1, 1987 (52 FR

24672), replacing standards for total suspended

particulate with new standards applying only to

particulate matter up to 10 microns in diameter

(PM 10). At that time, EPA established two PM 10

standards. The annual PM 10 standard is attained

originally classified as "moderate"

pursuant to section 188(a) of the Clean

Air Act (CAA or Act). 56 FR 11101

(March 15, 1991). On May 10, 1996,

EPA reclassified the Maricopa County

PM-10 nonattainment area to "serious"

under CAA section 188(b)(2). 61 FR

21372. Having been reclassified,

Phoenix is required to meet the serious

area requirements in the CAA, including

a demonstration that best available

control measures (BACM) will be

implemented by June 10, 2000. CAA

sections 188(c)(2) and 189(b). While the

Phoenix PM-10 nonattainment area is

currently classified as serious, today's

actions relate only to the moderate area

statutory requirements.

Pursuant to section 189(b)(2), the

State of Arizona 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 planning requirements

for PM-10 nonattainment areas are set

out in subparts 1 and 4 of Title I of the

Clean Air Act. Those states containing

initial moderate PM-10 nonattainment

areas were required to submit, among

other things, by November 15, 1991

provisions to assure that reasonably

available control measures (RACM)

(including such reductions in emissions

from existing sources in the area as may

when the expected annual arithmetic average of the

24-hour samples for a period of one year does not

exceed 50 micrograms per cubic meter (pg/m 3). The

24-hour PM 10 standard of 150 pg/m3 is attained

if samples taken for 24-hour periods have no more

than one expected exceedance per year, averaged

over 3 years. See 40 CFR 50.6 and 40 CFR part 50,

Appendix K.

On July 18, 1997, EPA revised both the annual

and the 24-hour PM 10 standards and also

established two new standards for PM, both

applying only to particulate matter up to 2.5

microns in diameter (PM 2.5)(62 FR 38651).

Today's actions relate only to the CAA

requirements concerning the 24-hour and annual

PM 10 standards as originally promulgated in 1987.

On May 14, 1999, the U.S. Court of Appeals for

the D.C. Circuit in American Trucking Assoc., Inc.,

et al. v. USEPA, No. 97 1440 (May 14, 1999) issued

an opinion that, among other things, vacated the

new standards for PM 10 that were published on

July 18, 1997 and became effective September 16,

1997. However, the PM 10 standards promulgated

on July 1, 1987 were not an issue in this litigation,

and the Court's decision does not affect the

applicability of those standards in the Maricopa

area. Codification of those standards continues to be

recorded at 40 CFR 50.6. In the notice promulgating

the revised PM 10 standards, the EPA

Administrator decided that the previous PM 10

standards that were promulgated on July 1, 1987,

and provisions associated with them, would

continue to apply in areas subject to the 1987 PM1O

standards until certain conditions specified in 40

CFR 50.6(d) are met. See 62 FR at 38701. EPA has

not taken any action under 40 CFR 50.6(d) for the

Maricop a area.

be obtained through the adoption, at a

minimum, of reasonably available

control technology (RACT)) shall be

implemented no later than December

10, 1993. CAA sections 172(c)(1) and

189(a)(1)(C). 3 Since that deadline has

passed, EPA has concluded that the

required RACM/RACT must be

implemented "as soon as possible."

Delaney v. EPA, 898 F.2d 687, 691 (9th

Cir. 1990). EPA has interpreted this

requirement to be "as soon as

practicable." See 55 FR 41204, 41210

(October 1, 1990) and 63 FR 28898,

28900 (May 27, 1998).

EPA has issued a "General

Preamble" 4 describing EPA's

preliminary views on how the Agency

intends to review state implementation

plans (SIPs) and SIP revisions submitted

under Title I of the Act, including those

state submittals containing moderate

PM-10 nonattainment area SIP

provisions. The methodology for

determining RACM/RACT is described

in detail in the General Preamble. 57 FR

13498, 13540-13541. With respect to

PM-10, Appendix CI of the General

Preamble suggests starting to define

RACM with the list of available control

measures for fugitive dust and adding to

this list any additional control measures

proposed and documented in public

comments. Any measures that apply to

de minimis emission sources of PM-10,

or any measures that are unreasonable

for technology reasons or because of the

cost of the control in the area can then

be culled from the list. In addition,

potential RACM may be culled from the

list if a measure cannot be implemented

on a schedule that would advance the

date for attainment in the area. 57

13498, 13560.57 FR 18070, 18072

(April 28, 1992).

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

3

States with moderate PM 10 areas were also

required to submit either a demonstration that the

plan would provide for attainment as expeditiously

as practicable but no later than December 31, 1994

or a demonstration that attainment by that date is

impracticable (CAA section 1 89(a)(1)(B)); and, for

plan revisions demonstrating impracticability, a

demonstration of reasonable further progress (RFP)

meeting the requirements of CAA sections 172(c)(2)

and 171(1). Section 171(1) defines RFP as "such

annual incremental reductions in emissions of the

relevant air pollutant as are required by part D of

the Act or may reasonably be required by the

Administrator for the purpose of ensuring

attainment of the applicable national ambient air

quality standard by the applicable attainment date." 4 See "State Implementation Plans; General

Preamble for the Implementation of Title I of the

Clean Air Act Amendments of 1990," (General

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

18070 (April 28, 1992).

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agencies have adequate personnel,

funding and authority under section

110(a)(2)(E)(i) and 40 CFR 51.280; and

the description of enforcement methods

as required by 40 CFR 51.111 and EPA

guidance implementing these

provisions.

B. EPA 's Moderate A rea PM-10 FIP for

Phoenix

On August 3, 1998, EPA promulgated

under the authority of CAA section

1 10(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, a demonstration

that RACM will be implemented in the

Phoenix area as soon as practicable. 5 As

part of its RACM demonstration, EPA

promulgated an enforceable

commitment, codified at 40 CFR 52.127,

to ensure that RACM for agricultural

sources will be expeditiously adopted

and implemented. See 63 FR 41326,

41350.6

II. Proposed Actions

On May 29, 1998, Arizona Governor

Hull signed into law Senate Bill 1427

(SB 1427) which revised title 49 of the

Arizona Revised Statutes (ARS) by

adding section 49-457. This legislation

established an agricultural best

management practices (BMPs)

committee for the purpose of adopting

by rule by June 10, 2000, an agricultural

general permit specifying BMPs for

regulated agricultural activities 7 to

reduce PM-10 emissions in the

Maricopa PM-10 nonattainment area.

ARS 49-457.A-F.

On September 4, 1998, the State of

Arizona submitted ARS 49-457 to EPA.

5 In addition to the RACM demonstration, EPA

also promulgated a demonstration of reasonable

further progress and a demonstration that it was

impracticable for the Phoenix area to attain either

the annual or 24-hour PM 10 NAAQS by the

applicable attainment deadline pursuant to CAA

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

41340 and 41342

640 CFR 52.127 provides that "[t]he

Administrator shall promulgate and implement

reasonably available control measures (RACM)

pursuant to section 1 89(a)(1)(C) of the Clean Air Act

for agricultural fields and aprons in the Maricopa

County (Phoenix) PM 10 nonattainment area

according to the following schedule: by no later

than September, 1999, the Administrator shall sign

a Notice of Proposed Rulemaking; by no later than

April, 2000, the Administrator shall sign a Notice

of Final Rulemaking; and by no later than June

2000, EPA shall begin implementing the final

RACM."

7 "Regulated agricultural activities" are defined as

"commercial farming practices that may produce

PM 10 particulate emissions within the Maricopa

PM 10 particulate nonattainment area." ARS 49

457.N.4.

On December 30, 1998, EPA proposed to

approve the legislation into the Arizona

SIP for the Phoenix PM-10

nonattainment area under section

1 10(k)(3) of the CAA as meeting the

requirements of sections 110(a) and

189(a)(1)(C) and proposed to withdraw

the FIP RACM commitment for such

sources. Please refer to Notice of

Proposed Rulemaking (63 FR 71816) for

greater detail on the Arizona legislation.

For EPA's SIP approval criteria and its

evaluation of the Arizona legislation,

see 63 FR 71817.

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, Staff Attorney,

Arizona Center for Law in the Public

Interest (ACLPI). The first two letters

expressed strong support for EPA's

proposed approval and did not raise any

issues that EPA need address. ACLPI, in

a January 29, 1999 letter, however,

opposes EPA's proposed actions for a

variety of reasons. EPA responds to

ACLPI's specific major comments

below. The reader is referred to the

technical support document (TSD) for

this rulemaking for EPA's responses to

all of ACLPI's comments in its January

29, 1999 letter.

ACLPI comments that EPA should

withdraw the proposed SIP revision.

ACLPI claims that EPA's proposal

would replace a weak FIP commitment

with a weaker State commitment to do

the same thing and that the State

commitment violates the CAA for the

same reasons as the FIP commitment.

Therefore ACLPI incorporates by

reference into its comments its brief for

petitioners in Ober v. Browner, No. 98-

71158.8

In the Ober litigation, EPA fully

responded to the arguments raised by

the petitioners in their brief as they

relate to the action at issue there, EPA's

FIP commitment for agricultural sources

in Phoenix. For the complete text of our

responses to those arguments, see brief

for respondents at pp. 10-18 and 43-59.

8

Gber is a pending petition for review, filed by

ACLPI on behalf of Phoenix residents, in the U.S.

Court of Appeals for the Ninth Circuit, of EPA's

action in promulgating the Phoenix FIP. While

ACLPI's comment letter does not specify what

portions of the petitioners' brief it intends to

incorporate, EPA believes that the only arguably

relevant portion is at pp. 29 36, relating to EPA's

commitment for agricultural sources, and therefore

addresses here only the arguments in those pages.

Because ACLPI chose not to recast the

arguments in its Ober brief in the

context of EPA's proposed SIP approval

and FIP withdrawal, we have not done

so for them. Thus the text in the

comment sections below summarizes

and/or excerpts portions of the brief for

petitioners as filed in the Ninth Circuit.

In the EPA response sections, however,

we have addressed the comments as if

they refer to this proposed action and

not the FIP promulgation.

The gravamen of ACLPI's complaint is

that the State's regulatory approach is

that of a commitment to adopt and

implement agricultural controls in the

future rather than immediate, adopted

and implemented regulations. This

approach was initially developed for

EPA's FIP and was then incorporated

into the State legislation that is the

subject of this rulemaking. Therefore,

the original rationale for that approach

is of central relevance and we briefly

summarize it here as a prologue to the

specific comments and responses that

follow:

EPA has, beginning with the proposed

rulemaking for its August 3, 1998 FIP

and culminating in the Ninth Circuit

litigation, explained at length its

reasoning in promulgating an

enforceable commitment for the control

of PM-10 from agricultural fields and

aprons in the Phoenix PM-10

nonattainment area rather than

immediate, fully developed regulations

for those sources. See 63 FR 15920,

15935-15936 (April 1, 1998); 63 FR

41332-41334; 63 FR 71817; brief for

respondents at 43-59. In short:

In general, EPA believes that because

agricultural sources in the United States vary

by factors such as regional climate, soil type,

growing season, crop type, water availability,

and relation to urban centers, each PM 10

agricultural strategy is uniquely based on

local circumstances. Furthermore, EPA

determined that the goal of attaining the PM

10 standards in Maricopa County with

respect to agricultural sources would be best

served by engaging all interested

stakeholders in a joint comprehensive

process on the appropriate mix of

agricultural controls to implement in

Maricopa County. EPA stated its belief that

this process, despite the additional time

needed to work through it, will ultimately

result in the best and most cost-effective

controls on agricultural sources in the

County.

In the FIP notices, EPA also explained its

intention to meet its RACM commitment by

developing and promulgating BMPs. Given

the number of potential BMPs, the variety of

crops types, the need for stakeholder input,

and the time necessary to develop the BMPs

into effective control measures, EPA believes

that the adoption and implementation

schedule in the FIP is as expeditious as

practicable. * * *

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63 FR 71817. That schedule provided

that RACM for agricultural fields and

aprons in the Phoenix area would be

proposed by September 1999, finalized

by April 2000, and implementation

begun by June 2000. 40 CFR 52.127; 63

FR 41350.

Specific ACLPI Comments and EPA

Responses

Comment: ACLPI claims in its Ober

brief that EPA has not met its burden

under its policy of demonstrating that

available agricultural controls are

infeasible or otherwise unreasonable.

Petitioners' brief at 32. 9

Response: Under EPA's General

Preamble, a "reasoned justification" is

required for measures rejected as

RACM. 57 FR 13540. By demonstrating

that it lacked sufficient information at

the time the FIP was developed and

promulgated to determine the

appropriate agricultural controls for the

Phoenix area, EPA fully justified its

conclusion that the only responsible

approach was the one it pursued, i.e., a

commitment, enforceable through the

CAA citizen suit provision, section 304,

to adopt and implement RACM controls

on an expeditious schedule. For the

same reason, EPA did meet its burden

under its own policy to demonstrate

that the measures promoted by

petitioners were not reasonably

available at the time EPA developed and

promulgated the FIP. As we

demonstrate below, the FIP approach

evolved into the State legislation;

therefore the same justification exists for

the State in adopting its legislation.

As noted above, in developing the FIP

for these sources, EPA promoted and

participated in a stakeholder process

that included discussions and

coordination among federal, state and

local government agencies and national

and local agricultural organizations.

This approach resulted in a consensus

among the participants on the elements

of a workable and expeditious

agricultural strategy that would be

incorporated initially into the FIP and

subsequently into State legislation. 63

FR 15936-15937. In its FIP proposal,

EPA explained that its enforceable

commitment included a series of

milestones to assure adoption and

implementation of RACM. The Agency

further explained:

EPA would initially convene a stakeholderbased process to begin formal development of

draft BMPs. Stakeholder groups represented

will likely include but not be limited to the

Arizona Farm Bureau Federation, Maricopa

9 "ACLPI" and "petitioners" are used

interchangeably throughout this document except

where otherwise indicated.

County Farm Bureau, ADEQ [Arizona

Department of Environmental Quality], MAG

[Maricopa Association of Governments],

MCESD [Maricopa County Environmental

Services Department], NRCS [Natural

Resource Conservation Service], Cooperative

Extension, the University of Arizona, tribes,

and environmental and/or public health

organizations. This effort would build upon

the stakeholder-based discussions which

occurred in 1997 and early 1998. By

September 1998, the stakeholders would

begin to draft BMPs. * * * In June 2000,

BMP implementation will begin with an

extensive collaborative public outreach and

education campaign. Guidance documents

would be developed to assist growers with

implementation of the BMPs. Compliance

assistance would also be a key element of the

BMP program.

Id. at 15937.

In the FIP proposal, EPA also

addressed the issue of how the federal

commitment could ultimately be

replaced:

While EPA's intended BMP approach is

designed to meet the RACM requirement, the

Agency believes it can serve as a potential

starting point and model for the development

of a State-led SIP process for addressing

BACM [Best Available Control Measures] for

agricultural sources. Thus, the stakeholders

could potentially build upon the BMP

approach initiated for the FIP to address both

RACM and BACM requirements for the

agricultural sector in the SIP. 1° The Arizona

Farm Bureau Federation, the Maricopa

County Farm Bureau, NRCS, ADEQ, and

other regulatory agencies are currently

working collaboratively to develop a Stateled BMP process for that purpose. EPA

strongly endorses such a process.

Id. at 15937. Thus it was clear from

the beginning of the regulatory

development effort for the agricultural

sources in Phoenix that the participants

intended that both the federal and State

processes would be substantially

identical and, as such, a seamless

transition from the FIP to the State

replacement SIP could be effectuated.

See, e.g., letter from David P.

Howekamp, EPA, to Kevin Rogers,

Maricopa County Farm Bureau (MCFB),

January 7, 1998 and letter from Kevin G.

Rogers to David P. Howekamp, January

22, 1998.

As expected, the approach and

process in the State legislation that was

ultimately passed and submitted by the

State as a SIP revision are virtually

coextensive with that of the FIP. For

example, the legislation establishes a

committee with the authority to adopt

BMPs and conduct an educational

1

OAt the time the moderate area FIP was being

developed, the State was preparing to develop its

plan to meet the serious area PM 10 requirements

of the Act in the Phoenix area, one of which is

provisions to assure that the best available control

measures for the control of PM 10 shall be

implemented. See generally CAA section 189(b).

program. See ARS 49-457.A-F, H and

M. The provisions of the State

legislation are discussed in detail in the

proposal for this action at 63 FR 71816-

71817.

Furthermore, in practice, a single

entity has been established and has been

operating to develop BMPs to comply

with both the requirements of the FIP

and State legislation. This entity, known

as the Best Management Practices

committee, has been meeting on a

regular basis since September, 1998. In

addition, a Technical Working Group

was formed which is currently

reviewing and evaluating a list of over

50 BMPs for possible use in Maricopa

County. The Technical Working Group

will then forward its recommendations

to the BMP committee. Together, the

committee and the working group are

comprised of representatives from State

and local agencies, universities,

farmers/producers in Maricopa County,

and EPA representatives. The committee

expects to develop BMPs by September,

1999. These BMPs will then undergo

review by State offices and the public

and are expected to be adopted by June

10, 2000. Thus, for all practical

purposes, the implementation efforts to

date of the FIP commitment and the

Arizona legislation are effectively the

same.

As we have demonstrated above, the

FIP and the State legislation were

developed by the same participants and

through the same process and were

intended to be substantially identical.

Therefore, the justification for the

commitment approach in both the FIP

and the SIP 11 are the same. ACLPI has

had ample opportunity to comment and

detail its arguments regarding the

alleged inadequacy of that justification

in connection with the FIP

promulgation and the judicial challenge

to that rulemaking. See letter from

ACLPI to EPA, Region 9, May 18, 1998

and petitioners' brief at 29-36. For these

reasons, while EPA acknowledges that

the SIP submittal did not contain the

"reasoned justification" provided for in

Agency guidance, EPA believes that

such a State justification would have

been the same as that provided by EPA

in connection with the FIP. Therefore,

to the extent that the State did not

duplicate that rationale, it is of no

consequence. By its incorporation of its

brief in Ober into its comments on the

proposal for this action, ACLPI has put

liThe Arizona legislation operates as a

commitment enforceable under CAA section 304 by

mandating the adoption by June 10, 2000 of a

general permit specifying BMPs with which sources

must comply by December 31, 2001 and the

initiation of an education program by June 10, 2000.

ARS 49 457.G, H, M.

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its arguments in the record for this

rulemaking.

Corn m ent: In their brief, petitioners

argue that EPA's deferral of agricultural

controls in the FIP through the use of a

commitment is not reasonable because

"[t]echniques for controlling

agricultural emissions are well known."

In support of this argument, petitioners

cite, among other things, existing South

Coast Air Quality Management District

(SCAQMD) rules, EPA guidance, and a

report by a 1996 task force appointed by

Arizona's Governor, and claim that EPA

erred by not adopting those measures in

the FIP. Petitioners' brief at 30-31.

ACLPI also suggests that EPA's action

with respect to agricultural controls is

contrary to the Agency's own policies

detailing available agricultural control

measures. Id.

Response: As discussed above, EPA

has explained at length the rationale for

its commitment in the FIP to adopt and

implement RACM for the agricultural

sector in Phoenix. See, e.g., 63 FR

15936. The Arizona legislation takes a

very similar approach for the same

reasons.

EPA agrees that certain techniques are

well known. The critical question,

however, is not whether those measures

are "available," but whether they are "reasonably available" for the Phoenix

area. ACLPI's arguments ignore the fact

that, as noted above, PM-10 strategies in

an agricultural context are highly

dependent on specific local factors. 63

FR 41332-41333; Technical Support

Document for U.S.EPA's Final Federal

Implementation Plan for the Phoenix

Nonattainment Area, Response to

Comments Document, p. 16. (FIP TSD).

As EPA explained in connection with

the FIP, "[a] resolution of these

uncertainties, in the context of an

assessment of the potential mix of

control measures, is critical to a

determination of whether controls such

as those contained in the SCAQMD

rules are reasonably available for the

Maricopa County nonattainment area

and will contribute to attaining the PM10 standards in the area." 12 Id. at pp.

12 EPA provided examples of the differences

between Maricopa County and the Coachella Valley

that affect control strategy choices. For instance,

SCAQMD rule 403.1 restricts activities capable of

generating fugitive dust when wind speeds exceed

25 miles per hour; while PM 10 exceedances in

Maricopa County can occur when winds exceed 15

miles per hour. Maricopa County has approximately

300,000 acres in production as opposed to the

Coachella Valley's 60,000 areas. Finally, not only

are the crops very different (Maricopa County is

dominated by cotton, alfalfa, and wheat, while the

Coachella Valley primarily grows fruits and

vegetables), these crops have different planting and

growing patterns.

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 of specific voluntary

practices to reduce dust emissions from

agricultural practices" and specifies that

they "may become part of a list of

mandatory agricultural BACM

developed through coordination" by

local and state agencies with relevant

expertise. The report further states that

"[a] coordination plan could be started

immediately. Implementation would

require cooperation with the

agricultural community." Finally, the

report lists several barriers to

implementation. Report of the

Governor's Air Quality task Force;

Recommended Long-term Control

Measures for Ozone, Carbon Monoxide,

and PM-10, December 2, 1996, p. 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 of such

controls, but its guidance does not

presume that these measures are

reasonably available in any or all areas.

Again, the question is whether the

application of those measures to a

specific area, like Maricopa County, is

reasonable.

To take just one of the available

measures cited by petitioners-modified

tillage methods-as an example, EPA's

guidance notes that operational tillage

modifications require areas to consider:

replacing planting and seeding methods,

planting and fertilizing of specific

grasses, crops and trees, and revising

grazing practices. It acknowledges that

resorting to some of these modified

farming approaches "would require

initial capital investments by the

farming industry for new equipment."

Fugitive Dust Background Document

and Technical Information Document

for Best Available Control Measures,

U.S.EPA, Office of Air Quality Planning

and Standards (OAQPS), September

1992, p. 3-49. Both the American Farm

Bureau Federation and the MCFB

commented on possible negative

economic impacts on agriculture if FIP

controls were imposed on such sources.

63 FR at 41333-41334. It is because

agricultural controls can be costly and

intersect with land management

practices and farming issues that EPA's

policy is to work closely with all

affected local, state and federal entities

(e.g., USDA). Indeed, petitioners

correctly note that EPA's guidance

includes "USDA-assisted soil

conservation plans * * * on individual

farms" as an available measure.

Petitioners' brief at 32.

Comment: According to the

petitioners, citing CAA section

172(c)(1), the "wholesale deferral of

agricultural controls [in the FIP] is

utterly indefensible because the Act

required adoption of all reasonably

available controls as expeditiously as

practicable." They contend that for

moderate PM-10 areas, the Act set an

explicit, absolute deadline of December

10, 1993 for implementing such

measures under section 189(a)(1)(C) and

that where an absolute deadline under

the Act has passed, EPA must correct

the deficiency "as soon as possible" to

effectuate Congressional intent. Delaney

v. EPA, 898 F.2d 687, 691, 695 (9th Cir.

1990).

Response: The air quality planning

requirements for moderate area PM-10

SIPs are set out in CAA section 189,

which states that the moderate area SIP

must contain provisions to assure that

RACM for the control of PM-10 is

implemented by December 10, 1993.

CAA section 189(a)(1)(C). In its General

Preamble, which contains guidance to

the states for determining RACM and

reasonably available control technology

(RACT) in their PM-10 moderate area

SIPs, EPA interpreted this specific

deadline for PM-10 nonattainment areas

to supersede the generally applicable "as expeditiously as practicable"

deadline in CAA section 172(c)(1). See

57 FR 13501. However, because the

December 10, 1993 deadline had passed

by the time the State legislation at issue

here was developed, the applicable

deadline became "as soon as possible"

under Delaney, 898 F.2d at 691. EPA

has interpreted this requirement to be

"as soon as practicable." 63 FR 15926.

We have delineated above the various

factors that demonstrate that the

schedule in the State legislation meets

that test.

Comment: In its January 29, 1999

comment letter, ACLPI contends that

EPA cannot claim that the State

legislation provides for the expeditious

implementation of RACM because the

implementation date for the BMPs in

the State plan is December 31, 2001

compared to an implementation date of

June 2000 for the FIP.

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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, by June 2000. 63 FR 41350. Prior

to proposing the FIP and as part of the

stakeholder process, EPA, in

conjunction with MCFB, concluded that

it would not be possible to fully

implement the BMPs by June 2000. See,

e.g., letter from David P. Howekamp,

EPA, to Kevin Rogers, MCFB, January 7,

1998 and letter Kevin G. Rogers to David

P. Howekamp, January 22, 1998. Thus,

as we stated in the proposal for the FIP,

EPA's intention was to conduct an

education program before enforcing the

BMPs: "In June 2000, BMP

implementation will begin with an

extensive collaborative public outreach

and education campaign." 63 FR 15937.

EPA's intention to begin its education

program as the first phase of its

implementation program by that date is

consistent with the education program

requirement in the State legislation. In

fact, the State legislation is arguably

more stringent than the FIP because it

provides for full compliance with the

BMPs by December 31, 2001, while the

FIP has no such full or final

implementation deadline. See 40 CFR

52.127; 63 FR 41350.

Cor ment: ACLPI argues th at an

enforceable commitment to adopt

control measures is not consistent with

the CAA and prior practice.

Specifically, petitioners object that

EPA's decision to promulgate an

enforceable commitment, as opposed to

actual control measures, does not meet

the CAA requirements for enforceable

measures as expeditiously as

practicable, and that the commitment

offers no assurance that adequate

controls will ever be adopted.

Petitioners' brief at 34-36.

Response: Historically EPA has

interpreted the CAA to allow states to

submit, and EPA to approve,

enforceable commitments to adopt rules

in the future, and the courts have

upheld such approvals. See, e.g.,

Friends of the Earth v. EPA, 499 F.2d

1118, 1124 (2d Cir. 1974). 13 Indeed, in

13 Courts have agreed that such commitments are

enforceable by the public under the CAA citizen

suit provision, section 304. See, e.g., American

LungAssociation of New Jersey v. Kean, 670 F.

Supp. 1285 (D.N.J. 1987), aff'd, 871 F.2d 319 (3d

Cir. 1989); NRDC v. New York State Dep't of

Environmental Conservation, 668 F. Supp. 848

Kamp v. Hernandez, 752 F.2d 1444,

1446, modified in other part, 778 F.2d

527 (9th Cir. 1985), the court reviewed

EPA's approval of a plan that required

Arizona to adopt regulations in the

future to control fugitive emissions.

Petitioners challenged EPA's approval,

claiming that the lack of such controls

in the plan meant that it did not assure

attainment and maintenance of the

sulfur dioxide standards. While finding

that the Act requires plans to "rely on

emission limitations to the maximum

extent feasible," the court upheld EPA's

approval, agreeing with the Second

Circuit's reasoning that "the demands of

its "difficult and complex job" require

that EPA be given some flexibility to

approve nearly complete

implementation plans." Id. at 1455.

Here, as shown above, it was not

feasible for the State to impose

immediate controls on agricultural

sources and the enforceable

commitment in the State's legislation

provides for the implementation of

RACM as soon as practicable.

Petitioners rely on NRDC v. EPA, 22

F.3d 1125 (D.C. Cir. 1994) to support

their argument. There, the D.C. Circuit

considered EPA's authority under CAA

section 1 10(k)(4) which was added as

part of the 1990 Amendments to the

Act, to conditionally approve a SIP

submittal which consisted entirely of a

commitment letter to submit the

required measure by a date certain. 14

Here, however, EPA did not rely on

section 1 10(k)(4); rather the Agency

proposed to approve the Arizona

legislation under section 110(k)(3). 63

FR 71818.

Moreover, when section 110(k)(4) was

enacted as part of the 1990

Amendments, it provided a new type of

approval for a limited set of

commitments that, in general, could not

be enforced under the Act's enforcement

mechanisms, including the citizen suit

provision. 15 There is no evidence that

by enacting this provision Congress

intended to replace EPA's well-

(S.D.N.Y. 1987); Citizens for a Better Environment

v. Deukmejian, 731 F. Supp. 1448, reconsideration

granted in part, 746 F. Supp. 976 (N.D. Cal. 1990);

Coalition Against Colum bus Center v. New York,

967 F.2d 764 (2d Cir. 1992); Trustees for Alaska v.

Fink, 17 F.3d 1209 (9th Cir. 1994). 14 Under section 1 10(k)(4), the Administrator

"may approve a plan revision based on a

commitment of the State to adopt specific

enforceable measures by a date certain," within one

year after the date of approval of the plan revision.

Any such conditional approval shall be treated as

a disapproval if the State fails to comply with such

commitment. 15 As noted above, under section 1 10(k)(4), if a

commitment is not fulfilled, the conditional

approval must be converted to a disapproval. Once

a SIP provision is disapproved, there is no longer

any commitment left to enforce under the Act.

established policy of using its general

approval authority to approve

enforceable commitments and, in fact,

EPA has continued to approve

enforceable commitments under its

general authority. See 62 FR 1150, 1187

(Jan. 8, 1997).

IV. Final Actions

EPA has evaluated ARS 49-457 and

has determined that it is consistent with

the CAA and EPA regulations.

Therefore, EPA is approving ARS 49-

457 under section 110(k)(3) of the CAA

as meeting the requirements of sections

I10(a) and 189(a)(1)(C). Because EPA is

approving the Arizona statute as

meeting the RACM requirements of the

CAA for agricultural sources in the

Phoenix area, EPA is also withdrawing

the FIP RACM commitment for such

sources by deleting § 52.127,

Commitment to Promulgate and

Implement Reasonably Available

Control Measures for the Agricultural

Fields and Aprons, in subpart D of part

52, chapter I, title 40 of the Code of

Federal Regulations. Nothing in this

action should be construed as

permitting or allowing or establishing a

precedent for any future request for

revision to any SIP. Each request for

revision to the SIP shall be considered

separately in light of specific technical,

economic, and environmental factors

and in relation to relevant statutory and

regulatory requirements.

V. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget

(OMB) has exempted this regulatory

action from Executive Order 12866,

Regulatory Planning and Review.

B. Executive Order 12875

Under Executive Order 12875,

Enhancing the Intergovernmental

Partnership, EPA may not issue a

regulation that is not required by statute

and that creates a mandate upon a state,

local, or tribal government, unless the

Federal government provides the funds

necessary to pay the direct compliance

costs incurred by those governments, or

EPA consults with those governments. If

EPA complies by consulting, Executive

Order 12875 requires EPA to provide to

the Office of Management and Budget a

description of the extent of EPA's prior

consultation with representatives of

affected state, local and tribal

governments, the nature of their

concerns, copies of any written

communications from the governments,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 12875 requires EPA to

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develop an effective process permitting

elected officials and other

representatives of state, local and tribal

governments "to provide meaningful

and timely input in the development of

regulatory proposals containing

significant unfunded mandates."

Today's rule does not create a mandate

on state, local or tribal governments.

The rule does not impose any

enforceable duties on these entities.

Accordingly, the requirements of

section 1(a) of Executive Order 12875 do

not apply to this rule.

C. Executive Order 13045

Protection of Children from

Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997),

applies to any rule that: (1) Is

determined to be "economically

significant" as defined under Executive

Order 12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency. This rule is

not subject to Executive Order 13045

because it does not involve decisions

intended to mitigate environmental

health or safety risks.

D. Executive Order 13084

Under Executive Order 13084,

Consultation and Coordination with

Indian tribal Governments, EPA may not

issue a regulation that is not required by

statute, that significantly or uniquely

affects the communities of Indian tribal

governments, and that imposes

substantial direct compliance costs on

those communities, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide to the Office of

Management and Budget, in a separately

identified section of the preamble to the

rule, a description of the extent of EPA's

prior consultation with representatives

of affected tribal governments, a

summary of the nature of their concerns,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 13084 requires EPA to

develop an effective process permitting

elected officials and other

representatives of Indian tribal

governments "to provide meaningful

and timely input in the development of

regulatory policies on matters that

significantly or uniquely affect their

communities." Today's rule does not

significantly or uniquely affect the

communities of Indian tribal

governments. Accordingly, the

requirements of section 3(b) of

Executive Order 13084 do not apply to

this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act

generally requires an agency to conduct

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements unless the

agency certifies that the rule will not

have a significant economic impact on

a substantial number of small entities.

Small entities include small businesses,

small not-for-profit enterprises, and

small governmental jurisdictions. This

final rule will not have a significant

impact on a substantial number of small

entities because SIP approvals under

section 110 and subchapter I, part D of

the Clean Air Act do not create any new

requirements but simply approve

requirements that the State is already

imposing. Therefore, because this rule

does not create any new requirements,

I certify that this rule will not have a

significant economic impact on a

substantial number of small entities.

Moreover, due to the nature of the

Federal-State relationship under the

Clean Air Act, preparation of flexibility

analysis would constitute Federal

inquiry into the economic

reasonableness of state action. The

Clean Air Act forbids EPA to base its

actions concerning SIPs on such

grounds. Union Electric Co., v. U.S.

EPA, 427 U.S. 246, 255-66 (1976); 42

U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded

Mandates Reform Act of 1995

("Unfunded Mandates Act"), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated annual costs to

State, local, or tribal governments in the

aggregate; or to private sector, of $100

million or more. Under section 205,

EPA must select the most cost-effective

and least burdensome alternative that

achieves the objectives of the rule and

is consistent with statutory

requirements. Section 203 requires EPA

to establish a plan for informing and

advising any small governments that

may be significantly or uniquely

impacted by the rule.

EPA has determined that this rule

does not include a Federal mandate that

may result in estimated annual costs of

$100 million or more to either State,

local, or tribal governments in the

aggregate, or to the private sector. This

Federal action approves pre-existing

requirements under State or local law

and withdraws Federal requirements,

and imposes no new requirements.

Accordingly, no additional costs to

State, local, or tribal governments, or to

the private sector, result from this

action.

G. National Technology Transfer and

A dvancem ent Act

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (NTTAA), Public Law 104-

113, Section 12(d) (15 U.S.C. 272 note)

directs EPA to use voluntary consensus

standards in its regulatory activities

unless to do so would be inconsistent

with applicable law or otherwise

impractical. Voluntary consensus

standards are technical standards (e.g.,

materials specifications, test methods,

sampling procedures, and business

practices) that are developed or adopted

by voluntary consensus standards

bodies. The NTTAA directs EPA to

provide Congress, through OMB,

explanations when the Agency decides

not to use available and applicable

voluntary consensus standards. This

action does not involve technical

standards. Therefore, EPA did not

consider the use of any voluntary

consensus standards.

H. Submission to Congress and the

Comptroller General

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. This rule is not a "major" rule as defined by 5 U.S.C.

804(2).

I. Petitions for Judicial Review

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by August 30, 1999.

Filing a petition for reconsideration by

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the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Particulate matter.

Dated: June 17, 1999.

Carol M. Browner,

Administrator.

Part 52, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52-[AMENDED]

1. The authority citation for part 52

continues to read as follows:

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

Subpart D-Arizona

2. Section 52.120 is amended by

adding paragraph (c)(93) to read as

follows:

§52.120 Identification of plan.

(c) * * *

(93) Plan revisions were submitted on

September 4, 1998 by the Governor's

designee.

(i) Incorporation by reference.

(A) Arizona Revised Statute 49-457.

§52.127 [Removed and Reserved]

3. Section 52.127 is removed and

reserved.

[FR Doc. 99 16371 Filed 6 28 99; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 141 and 142

[FRL-6369-1]

National Primary Drinking Water

Regulation: Consumer Confidence

Reports; Correction

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule; correction.

SUMMARY: EPA published in the Federal

Register of August 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 minor typographical 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 Federal Register (63 FR

44511), EPA published the Consumer

Confidence Report Rule. Paragraph f of

the section on Report Content

(§ 141.153) mistakenly refers to the

requirements of § 141.153(d)(7) when it

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

corrects that mistake.

The preamble to the August 19, 1998

rule explained that systems that detect

certain contaminants at concentrations

above 50% of the applicable MCL or

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% of the MCL or 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 another part of the rule requires

them to provide a clear and readily

understandable explanation of the

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%, of homes sampled...." EPA's

phrasing inadvertently exempts systems

that detect lead above the AL in

precisely 10% of homes 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%, of homes sampled

In addition, Appendices A and B to

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 EPA regulations, TTHMs

have no MCLG. This notice amends

Appendices A and B to replace the

number zero for the TTHMs MCLG with

"n/a" (the abbreviation for "not

applicable.") Similarly, the Appendices

mistakenly listed the Maximum

Contaminant Level for Total Coliforms

as "presence of coliform bacteria in >5%

of monthly samples". EPA is today

correcting the Appendices to show that

the MCL for total coliforms is "(systems

that collect 40 or more samples per

month) 5% of monthly samples are

positive; (systems that collect fewer

than 40 samples per month) 1 positive

monthly sample'.

Finally, in paragraphs (f)(2) and (f)(3)

of the section on Special Primacy

Requirements (§ 142.16), the rule

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 of the 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 a rule

without providing notice and an

opportunity for public comment. EPA

has determined that there is good cause

for making today's rule final without

prior proposal and opportunity for

comment because EPA merely is

correcting minor errors in the

promulgated rule. Thus, notice and

public comment procedure are

unnecessary. The Agency finds that this

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 of the underlying

rule since August 19, 1998, EPA finds

that good cause exists to provide for an

immediate effective date pursuant to 5

U.S.C. 553(d)(3) and 808(2).

Administrative Requirements

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this action is

not a "significant regulatory action" and

is therefore not subject to review by the

Office of Management 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 FR 27655,

May 10, 1998), or involve special

consideration of environmental justice

related issues as required by Executive

Order 12898 (59 FR 7629, February 16,

1994).

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