[Federal Register Volume 61, Number 206 (Wednesday, October 23, 1996)]
[Proposed Rules]
[Pages 54972-54975]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26574]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AZ-036-1-0008; FRL-5632-2]
Approval and Promulgation of Implementation Plans; Arizona--
Phoenix Nonattainment Area; PM10
AGENCY: U.S. Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: EPA today proposes to restore its approval of portions of the
State implementation plan (SIP) submitted by the State of Arizona for
the purpose of bringing about the attainment in the Phoenix Planning
Area (PPA) of the national ambient air quality standards (NAAQS) for
particulate matter with an aerodynamic diameter less than or equal to a
nominal 10 micrometers (PM10).
In April 1995, EPA approved the State's ``moderate'' area SIP as
satisfying Federal requirements in the Clean Air Act for an approvable
nonattainment area PM10 plan for the PPA. In May 1996, the United
States Court of Appeals for the Ninth Circuit in Ober v. EPA vacated
EPA's approval and directed the Agency to provide an opportunity for
comment on issues related to the reasonably available control measure
(RACM) and reasonable further progress (RFP) demonstrations in the SIP.
The intent of this proposed action is to comply with the Court's
opinion by providing such an opportunity.
DATES: Comments on this proposed action must be received in writing by
December 23, 1996.
ADDRESSES: Comments must be submitted to Frances Wicher, U.S.
Environmental Protection Agency Region 9, 75 Hawthorne Street, San
Francisco, CA 94105. Copies of the State's submittal and other
information are contained in the docket for this rulemaking. The docket
is available for inspection during normal business hours at the above
Region 9 address.
FOR FURTHER INFORMATION CONTACT: Frances Wicher (A-2-1) U. S.
Environmental Protection Agency, Region 9, Air and Toxics Division, 75
Hawthorne Street, San Francisco, CA 94105, (415) 744-1248.
SUPPLEMENTARY INFORMATION:
I. Background
A. Clean Air Act Requirements
On the date of enactment of the 1990 Clean Air Act Amendments,
PM10 areas, including the Phoenix Planning Area (PPA), meeting the
conditions of section 107(d) of the Act were designated nonattainment
by operation of law. Once an area is designated nonattainment, section
188 of the Act outlines the process for classification of the area and
establishes the area's attainment date. In accordance with section
188(a), at the time of designation, all PM10 nonattainment areas
were initially classified as ``moderate'' by operation of law. See 56
FR 11101 (March 15, 1991). A moderate area may subsequently be
reclassified as ``serious'' under section 188(b)(1) of the Clean Air
Act (CAA) if at any time EPA determines that the area cannot
practicably attain the PM10 NAAQS by the applicable attainment
date for moderate areas, December 31, 1994. Moreover, a moderate area
must be reclassified if EPA determines within six months after the
applicable attainment date that, based on actual air quality data, the
area is not in attainment after that date. See section 188(b)(2) of the
CAA.1
The air quality planning requirements for moderate PM10
nonattainment areas are set out in subparts 1 and 4 of Title I of the
Act. EPA has issued a ``General Preamble'' describing EPA's preliminary
views on how the Agency intends to review SIPs and SIP revisions
submitted under Title I of the Act, including those state submittals
containing moderate PM10 nonattainment area SIP provisions. See
generally 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28,
1992).
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\1\ On May 10, 1996, EPA published a final reclassification of
the PPA as a serious PM10 nonattainment area based on actual
air quality data. See 61 FR 21372. Having been reclassified, the
area is required to meet the serious area requirements in the CAA,
including a demonstration that the area will attain the PM10
NAAQS as expeditiously as practicable but no later than December 31,
2001. See sections 188(c)(2) and 189(b).
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Those states containing initial moderate PM10 nonattainment
areas were required to submit, among other things, the following
provisions by November 15, 1991:
1. Pursuant to section 189(a)(1)(C) of the CAA, provisions to
assure that reasonably available control measures (RACM) (including
such reductions in emissions from existing sources in the area as may
be obtained through the adoption, at a minimum, of reasonably available
control technology--RACT) shall be implemented no later than December
10, 1993;
2. Pursuant to section 189(a)(1)(B), either a demonstration
(including air quality modeling) that the plan will provide for
attainment as expeditiously as practicable but no later than December
31, 1994 or a demonstration that attainment by that date is
impracticable;
3. Pursuant to section 189(c), for plan revisions demonstrating
attainment, quantitative milestones which are to be achieved every 3
years and which demonstrate reasonable further progress (RFP) toward
attainment by December 31, 1994; 2 and
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\2\ As will be seen below, the PM10 plan for the PPA did
not demonstrate attainment by December 31, 1994, but rather included
the alternative demonstration that attainment by that date is
impracticable. Therefore, section 189(c) does not apply and is not
discussed further in this notice.
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4. Pursuant to sections 172(c)(2) and 171(1), for plan revisions
demonstrating impracticability, such annual incremental reductions in
PM10 emissions 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 PM10 NAAQS by the applicable attainment date.
B. EPA Approval of Arizona's Moderate Area PM10 Plan
On July 28, 1994, EPA proposed to approve The State of Arizona's
moderate area PM10 implementation plan revision for the PPA. 59 FR
38402. In its Notice of Proposed Rulemaking (NPRM), EPA proposed to
approve, among other elements in the plan, the State's RFP and RACM
demonstrations as meeting the requirements of sections 172(c)(2),
171(1), 172(c)(1), and 189(a)(1)(C) of the CAA. Based on its
[[Page 54973]]
approval of the RACM demonstration, EPA also proposed to approve, as
meeting the requirements of section 189(a)(1)(B), the State's
demonstration that even with the implementation of all RACM by December
10, 1993, it was impracticable for the PPA to attain the PM10
NAAQS by December 31, 1994.3
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\3\ The reader should refer to both the NPRM, 59 FR 38402, and
the Notice of Final Rulemaking (NFRM), 60 FR 18010 (April 10, 1995),
for EPA's interpretation of the certain moderate area PM10
requirements of the CAA and the Agency's application of these
interpretations to the State's moderate area PM10 plan. Those
notices should also be consulted for the history of the State's
PM10 plan submittals and EPA's actions concerning them.
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During the 30 day public comment period on the NPRM, the Arizona
Center for Law in the Public Interest (ACLPI) submitted lengthy
comments on many aspects of EPA's proposed approval of the State's
moderate area PM10 plan. Among ACLPI's comments was a claim that
the State had failed to submit adequate, or in some instances any,
justifications, as required by the CAA and EPA policy guidance, for
rejecting certain measures as RACM. In preparing a response to this
comment, EPA requested that the State submit additional detail and
elaboration on the State's reasoning regarding its RACM determination.
The State submitted this information in December 1994 after the close
of the public comment period on the NPRM in a document entitled
``Summary of Local Government Commitments to Implement Measures and
Reasoned Justification for Nonimplementation for the MAG 1991
Particulate Plan for PM10 and Select Measures from the Clean Air
Act Section 108(f)'' (MAG Supplementary document). This document is
included in the docket for EPA's final action approving the moderate
area plan. 60 FR 18010.
ACLPI also disputed EPA's proposed approval of the State's moderate
area PM10 plan as meeting the CAA's RFP requirements. ACLPI
claimed that the State failed to demonstrate any incremental progress
in the PPA because under the plan PM10 emissions would actually
increase from the 1989 base year to 1994, the attainment year.4
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\4\ During the Ninth Circuit litigation on EPA's approval of the
plan, discussed in section I.C. of this notice, ACLPI elaborated on
this claim. ACLPI maintained that EPA had erroneously and improperly
recalculated the emission reduction credit assigned by the State to
Maricopa County rule 310 (fugitive dust). ACLPI asserted that EPA
was not entitled to calculate the control effectiveness of the rule
based on the entire nonattainment area (rather than just the urban
portion as the State had done). ACLPI claimed that without EPA's
unwarranted inflation of the credit assigned to the rule, PM10
emissions in the PPA would increase in violation of the CAA's RFP
requirements.
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On April 10, 1995, having considered ACLPI's comments, EPA
published a NFRM in the Federal Register approving the State's moderate
area PM10 SIP for the PPA. 60 FR 18010. In its final action, EPA
approved, among other elements of the plan, the State's RACM and RFP
demonstrations, and the State's demonstration that even with the
implementation of all RACM by December 10, 1993, it was not practicable
for the PPA to attain the PM10 NAAQS by December 31, 1994.
C. Ninth Circuit Litigation
On May 1, 1995, ACLPI filed, on behalf of two Phoenix residents, a
petition for review, Ober v. EPA, No. 95-70352, of EPA's approval of
Arizona's moderate area PM10 plan for the PPA in the United States
Court of Appeals for the Ninth Circuit. On May 14, 1996, the Court
issued its opinion in the Ober case vacating EPA's approval of the
State's plan.5
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\5\ The reader is referred to the text of the opinion for the
Court's disposition of the range of issues raised by ACLPI in its
petition. See 84 F.3d 304 (9th Cir. 1996). Today's notice addresses
only a portion of that disposition.
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As an initial matter, the Court concluded that the State was
required to address in its SIP the moderate area requirements regarding
RFP, RACM and attainment or impracticability for both the 24-hour and
the annual PM10 NAAQS. The Court found that the State's moderate
area SIP improperly addressed the required demonstrations only for the
annual standard.6 The Court then considered EPA's approval of the
following annual standard demonstrations in the plan.
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\6\ In order to remedy the failure of the State to address the
required demonstrations for the 24-hour standard, the Court required
EPA to in turn require the State to submit those demonstrations.
Today's notice, however, addresses only those aspects of the Court's
findings and conclusions with respect to the RACM, RFP and
impracticability demonstrations for the annual standard.
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With regard to EPA's approval of the State's RACM demonstration,
the Court concluded that EPA violated the Administrative Procedure Act
and the CAA by not providing an opportunity for public comment on the
justifications for rejecting certain control measures as RACM that the
State provided to EPA after the close of the public comment period on
the Agency's proposed SIP approval action. See MAG Supplementary
document.
In addition, with regard to EPA's approval of the RFP
demonstration, the Court did not reach the merits of ACLPI's challenge
to EPA's interpretation of RFP for moderate PM10 areas
demonstrating that it was impracticable to attain the PM10 NAAQS
by the statutory deadline. Instead, the Court found that the Agency
improperly substituted its own recalculation of the emission reduction
credit attributed to rule 310 without providing the required
opportunity for public comment.
Having made the above findings, the Court remanded the case to EPA
with instructions to provide an opportunity for public comment on the
post-comment period justifications for rejecting certain control
measures as RACM and on the RFP demonstration.
II. Today's Actions
A. RACM Demonstration
In today's action, EPA is taking comment on the expanded
justifications for rejecting certain control measures as RACM that the
State submitted to EPA in December 1994, following the close of the
public comment period on EPA's July 1994 proposed approval of the
State's moderate area PM10 plan. See MAG Supplementary document.
EPA is today reaffirming its analysis of the RACM demonstration in
the State's moderate area PM10 plan as discussed in the NPRM and
the NFRM for the Agency's approval action, and therefore proposes to
restore its approval of these elements of the State's plan.7
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\7\ EPA intends in a future rulemaking to restore its final
approval of several Maricopa County rules in the moderate area
PM10 plan that were not challenged in the Ninth Circuit, the
approval of which were nevertheless vacated by the Court's opinion.
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B. RFP Demonstration
As stated above, the Ober Court directed EPA to take comment on the
appropriate emission reduction credit attributed to Maricopa County
rule 310 as it relates to the RFP demonstration in the State's moderate
area PM10 plan. In preparing to comply with the Court's directive,
the Agency reviewed both the emission reduction credits originally
assigned by the State to the control measures in the plan, including
rule 310, and EPA's recalculation of those credits as described in the
NFRM. See 60 FR 18018. In that recalculation EPA had assumed the
measures in the plan would yield emission reductions over a greater
geographic area than the State had claimed. EPA has, however, concluded
from its current review that the emission reduction potential of the
measures cited in the NFRM was in error, and that the State's original
calculation was appropriate. EPA's review and conclusions are discussed
in detail in the Technical Support Document (TSD) for this notice.
In conducting the above review, it also came to the Agency's
attention that
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its statements in the NFRM regarding the scope of the emission
reductions required to demonstrate RFP under sections 172(c)(2) and
171(1) of the Act for plans demonstrating impracticability may be
ambiguous. In order to eliminate any confusion that may have resulted
from these statements, EPA is today clarifying its interpretation of
the RFP requirements for such plans.
In response to ACLPI's comment on the NPRM that the plan did not
demonstrate RFP from the 1989 base year to 1994 because emissions
actually increased during that period, EPA in the NFRM noted the 1989
base year inventory and the projected 1994 inventory numbers. EPA then
stated that ``* * * the total 1994 projected inventory after
application of RACM * * * shows, consistent with EPA's guidance on
demonstrating RFP, which is described in greater detail earlier in this
notice [at p. 18013] * * * that the area has indeed made progress in
reducing emissions from the base year total, and thus has demonstrated
it has met the requirements of section 172(c)(2) for the period 1990-
1994.'' 60 FR 18018, col. 2.
Elsewhere in the NFRM, in its general discussion of the issue, the
Agency stated that plans demonstrating impracticability ``should show
that even though the emission reductions achieved through the
implementation of all RACM may not be enough to enable the area to
demonstrate attainment by the moderate area deadline of December 31,
1994, such implementation has resulted in `incremental reductions' in
emissions of PM10 as the RFP definition in section 171(1)
specifies.'' 60 FR 18013, col. 2.
EPA intended in the above NFRM discussions to interpret the RFP
requirement for areas demonstrating impracticability as being met by a
showing that the implementation of all RACM has resulted in incremental
emission reductions below pre-implementation levels.8 That EPA
intended this interpretation is demonstrated by the discussion of the
RFP issue in the Agency's brief in the Ober litigation. See Brief for
Respondents, pp. 7-8 and 42.9
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\8\ EPA did not intend to suggest, as might be inferred from its
response to ACLPI's comment, that a showing in such plans of
emission reductions from 1989 (or 1990) to 1994 would be necessary
to meet the RFP requirements. As stated in the quoted passage from
EPA's response to ACLPI's comment, the Agency simply meant that such
a showing would be consistent with EPA's guidance as set forth at 60
FR 18013. Having concluded that the State's original calculation of
the emission reduction potential of the control measures in the plan
is appropriate, EPA agrees with ACLPI that PM10 emissions
increased from 1989 to 1994. EPA does not, however, agree that
emissions must decrease during that period in order for the plan to
meet the section 172(c)(2) RFP requirement.
\9\ See also Brief for Respondents at pp. 43-44:
What the Act requires is the implementation of RACM by
December 10, 1993. 42 U.S.C. 7513a(a)(1)(C). For that reason * * *
EPA has stated that the incremental reductions compelled for
moderate areas are those that resulted from the implementation of
RACM. 60 Fed. Reg. 18013 * * *. The definition of RFP, 42 U.S.C.
7501(1), does not mandate that EPA require any additional reductions
beyond what RACM itself would achieve.
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EPA believes the interpretation presented in the Agency's Ober
brief is consistent with the statutory term ``reasonable further
progress.'' RFP is defined in section 171(1) as either annual
incremental reductions as are required under part D, or such reductions
as the Administrator may reasonably require ``for the purpose of
ensuring attainment of the [NAAQS] by the applicable date.'' However,
as mentioned above, the PPA did not demonstrate attainment, but instead
demonstrated that it was impracticable to attain the PM10 standard
by the December 31, 1994 moderate area PM10 attainment deadline,
even after implementation of RACM. Once EPA has determined that such an
area has implemented all reasonable control measures that are
available, and that the area still would not timely attain, there are
no further reductions that would be reasonable to require ``for the
purpose of ensuring attainment'' by the moderate area attainment
deadline. Thus, the emissions reductions achieved by such an area
through implementation of all RACM, by definition, would satisfy the
requirement to demonstrate reasonable further progress in the period
before the State must submit the additional measures needed to produce
the net emissions reductions required to bring about attainment.
As discussed in the TSD for this notice, EPA has concluded that the
State's original calculation of the emission reduction potential of the
control measures in its moderate area PM10 plan demonstrates
incremental PM10 emission reductions from the implementation of
all RACM over pre-implementation levels. Therefore, EPA believes that
the State has met the RFP requirements, as clarified in today's notice,
of section 172(c)(2) for plans demonstrating impracticability. As a
result, EPA is today proposing to restore its approval of the RFP
demonstration in the State's moderate area PM10 plan. EPA is also
today reaffirming, with the above clarification, its analysis of the
RFP requirements for moderate area PM10 plans demonstrating
impracticability as discussed in the NFRM at 60 FR 18012-13.
C. Impracticability Demonstration
The Ober Court did not specifically address EPA's approval of the
State's moderate area demonstration that it was impracticable for the
PPA to attain the PM10 NAAQS by the statutory deadline. Nor did
the Court direct EPA to take any action with respect to that
demonstration. Nevertheless, for the reasons discussed below, EPA is
today proposing to restore its approval of the State's moderate area
impracticability demonstration.
As stated previously, the Ninth Circuit vacated EPA's approval of
the State's moderate area PM10 plan in its entirety, including the
State's demonstration that it was impracticable for the PPA to attain
the annual PM10 NAAQS by the end of 1994 even with the
implementation of all RACM. Clearly the validity of EPA's approval of
this impracticability demonstration is dependent on an approved RACM
demonstration. The approvability of the RACM demonstration depends in
turn on the appropriateness of the State's justification for rejecting
certain control measures as RACM. As stated above, EPA is providing an
opportunity for comment on a number of these justifications and
proposing to restore its approval of the RACM demonstration in today's
notice.
EPA believes that because the PPA was reclassified from a moderate
to a serious nonattainment area in 1996, the moderate area attainment
requirements (demonstration of impracticability or attainment by no
later than December 31, 1994) have been superseded by the serious area
attainment requirement (attainment by no later than December 31, 2001)
and are therefore now moot. Having reviewed the CAA's moderate and
serious area PM10 attainment provisions, EPA has concluded that
when a moderate PM10 area has been reclassified after the moderate
area attainment deadline has passed and been replaced with a new
deadline, the moderate area deadline no longer has any logical,
practical or legal significance. Similarly, once such a
reclassification has occurred, the approval status of the SIP
provisions addressing the previous attainment requirements is no longer
of any consequence. Thus, under this interpretation, there would be no
need to restore the Agency's approval of the State's moderate area
impracticability demonstration for the PPA.
However, in addition to the Ninth Circuit's remedy, addressed in
today's notice, for deficiencies related to EPA's approval of the
moderate area RFP and RACM demonstrations for the annual
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PM10 standard, the Court directed EPA to require the State to
address the moderate area attainment requirements for the 24-hour
standard. See footnote 6. By analogy, EPA assumes that the Court
expects that the moderate area attainment requirements for the annual
standard must also be met.
When the Court fashioned its remedy requiring the State to address
the moderate area attainment requirements for the 24-hour standard, it
did so in the context of a pending proposed reclassification of the PPA
to serious.\10\ However, the Court believed that EPA was proposing the
reclassification under section 188(b)(1) of the CAA based on the
State's impracticability demonstration. 304 F.3d at 309. In fact, EPA
had proposed to reclassify the area either under section 188(b)(1) or,
in the alternative, under section 188(b)(2) (after the attainment
deadline based on actual air quality data indicating that the area has
failed to attain the PM10 NAAQS by the statutory deadline). See 60
FR 30046 (June 7, 1995). The area's final reclassification was based on
a finding under section 188(b)(2) that the area had failed to attain
the PM10 NAAQS because of violations of both the annual and 24-
hour standards. See 61 FR 21372.
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\10\ While neither the reclassification nor its effect on
moderate area planning requirements was before the Ober Court, the
Court was aware of the proposed reclassification when the case was
briefed and argued. And it is clear from the opinion that the Court
believed EPA was required to promulgate a final reclassification.
304 F.3d at 309-311. EPA published its final reclassification of the
PPA to a serious nonattainment area on May 10, 1996, four days
before the Ninth Circuit issued its Ober opinion. 61 FR 21372.
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Therefore, EPA believes that, to the extent the Court concluded in
fashioning its remedy that an area must continue to meet the moderate
area attainment requirements after it has been reclassified to serious,
the Court could not have made this judgment based on a consideration of
the legal effect of a final reclassification under section 188(b)(2) on
the area's pre-existing moderate area attainment requirements.
Consequently, EPA believes that it is not precluded by the Court's
decision from concluding that, under these circumstances, the moderate
area attainment requirements for both the annual and 24 hour NAAQS have
been legally superseded by the serious area attainment requirements and
therefore are now moot and need not be addressed after the area's
reclassification.
While EPA could have sought clarification from the Ninth Circuit in
order to apply this conclusion in the context of compliance with the
Court's remedies in Ober, the Agency does not believe that it would
have been in the public interest to do so. Such a review would
necessarily have occurred without benefit of a thorough briefing on the
issue and in the absence of an administrative record. Thus EPA has
chosen to comply with the Court's remedies regarding the moderate area
attainment requirements in spite of the Agency's view that the
reclassification of the PPA based on air quality rendered those
requirements legally ineffective.\11\ The Agency does, however, reserve
its right to assert its interpretation in any challenge to EPA's
implementation of the Court's remedies or in the context of other
reclassifications.
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\11\ Because EPA is not applying this interpretation in today's
rulemaking, it does not constitute final agency action.
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III. Administrative Requirements
A. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small business, small not-for-profit enterprises and
government entities with jurisdiction over populations of less than
50,000.
SIP approvals under subchapter I, part D of the Clean Air Act, do
not create any new requirements, but simply approve requirements that a
state is already imposing. Therefore, because the federal SIP approval
does not impose any new requirements, the Administrator certifies that
it does not have a significant impact on any small entities affected.
Moreover, due to the nature of the Federal-State relationship under the
CAA, preparation of a 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.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42
U.S.C. 7410(a)(2).
C. 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
costs to state, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves that 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 this rule.
EPA has determined that the approval action proposed does not
include a federal mandate that may result in estimate 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, imposes no new federal
requirements. Accordingly, no additional costs to State, local or
tribal governments, or to the private sector, results from this action.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Particulate
matter, Intergovernmental relations.
Authority: 42 U.S.C. 7401-7671q.
Dated: September 26, 1996.
Felicia Marcus,
Regional Administrator.
[FR Doc. 96-26574 Filed 10-22-96; 8:45 am]
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