Air quality implementation plans; approval and promulgation; various States; air quality planning purposes; designation of areas: Idaho,
[Federal Register: March 12, 1999 (Volume 64, Number 48)]
[Rules and Regulations]
[Page 12257-12265]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12mr99-10]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[ID23-7003; FRL-6237-9]
Determination That Pre-existing National Ambient Air Quality Standards for PM-10 No Longer Apply to Ada County/Boise; State of Idaho
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
SUMMARY: The Environmental Protection Agency (EPA) has determined that the national ambient air quality standards (NAAQS) for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM-10) that existed before September 16, 1997, shall no longer apply to the Northern Ada County/Boise, Idaho area and EPA is revoking the nonattainment designation associated with those standards. The State of Idaho has satisfied the requirements of the Clean Air Act (CAA) as well as EPA's regulations and Guidance for Implementing the 1- Hour Ozone and Pre-existing PM-10 NAAQS dated December 29, 1997.
DATES: Effective March 12, 1999.
ADDRESSES: Copies of the State's request and other information supporting this action are available for inspection during normal business hours at the following locations: EPA, Office of Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101, and State of Idaho, Division of Environmental Quality, 1410 N. Hilton, Boise, Idaho 83720.
FOR FURTHER INFORMATION CONTACT: Rindy Ramos, EPA, Office of Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington, 98101, (206) 553-1743.
SUPPLEMENTARY INFORMATION:
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Background
On July 18, 1997, EPA revised the primary and secondary NAAQS for particulate matter (PM) by establishing annual and 24-hour standards for particulate matter with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (PM-2.5) and by changing the form of the existing 24-hour PM-10 standard. The existing annual PM-10 standard was retained; however, for the revised PM NAAQS, the requirement to correct the pressure and temperature of measured concentrations to standard reference conditions was removed. As noted in the preamble to the final rule promulgating the revised PM NAAQS, those revisions may potentially affect the effective stringency of the annual standard. These new standards became effective September 16, 1997. See 61 FR 65638 (Dec. 13, 1996) and 62 FR 38652 (July 18, 1997).
EPA has developed guidance to ensure that momentum is maintained by States in their current air programs while moving toward developing their plans for implementing the new NAAQS. This document entitled Guidance for Implementing the 1-Hour Ozone and Pre-Existing PM10 NAAQS, dated December 29, 1997, also reflects a July 16, 1997, memorandum issued to Administrator Browner by President Clinton on implementation of the new standards. An additional document entitled Re-Issue of the Early Planning Guidance for the Revised Ozone and Particulate Matter (PM) National Ambient Air Quality Standards (NAAQS) dated June 16, 1998 outlines a process for States to review the adequacy of their existing CAA section 110 state implementation plans (SIPs) for purposes of implementing the new PM standards.
To provide for an effective transition from the pre-existing to the revised PM NAAQS, the effective date of the revocation of the PM-10 NAAQS in effect before September 16, 1997, was delayed so that the existing standards and associated provisions would continue to apply for an interim period. See 62 FR 38701. EPA, therefore, developed interim implementation guidance that provides for the continued applicability of the pre-existing PM-10 NAAQS until certain criteria are met. The duration of the interim period depends on when the area in question has met the requirements for revocation. Specifically, in 40 CFR 50.6(d), and the
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guidance document entitled, Guidance for Implementing the 1-Hour Ozone and Pre-Existing PM10 NAAQS, dated December 29, 1997, EPA outlines the necessary requirements that areas, which are attaining the pre-existing PM-10 NAAQS at promulgation of the new standards, must meet in order to have the pre-existing PM-10 NAAQS revoked. Those documents outline three conditions for revocation of the pre-existing PM-10 NAAQS which are applicable to the Northern Ada County/Boise, Idaho area: (1) An area must have 1994-96 air quality data that shows attainment of the pre-existing PM-10 standard as of the date that the standard was revised; (2) the State must have an EPA-approved SIP for the area that includes all control measures that were adopted and implemented at the State level to meet the pre-existing PM-10 NAAQS; and (3) the State must have a section 110 SIP for the area that provides adequate authority and resources to implement the revised PM-10 and the new PM- 2.5 standards. As further explained in the EPA guidance document entitled, Re-Issue of the Early Planning Guidance for the Revised Ozone and Particulate Matter (PM) National Ambient Air Quality Standards (NAAQS), dated June 16, 1998 the EPA believes that, for initial planning purposes, an adequate section 110 SIP must enable the State to develop an infrastructure to implement the new PM standards by identifying and/or establishing the authority and adequate resources to: (1) Develop an accurate, complete, and comprehensive emissions inventory; (2) develop, deploy, and operate the PM monitoring network; and (3) perform modeling. Once a State submits a request for revocation that meets the conditions described earlier, and certifies that it has met the requirements stated above, EPA will take action to revoke the pre-existing PM-10 standards and the designation for the relevant area. Once EPA takes action on the State's request for revocation, the pre- existing PM-10 standards and the section 107 PM-10 designation for that area will no longer apply. This is because the PM-10 standards that are related to the current section 107 PM-10 designation for the area would no longer exist.‹SUP›1‹/SUP›
\1\ Section 107(d)(1) of the Act establishes the requirements for making designations for areas when a NAAQS is promulgated or revised. These are designations of nonattainment, attainment and unclassifiable. The provision requires States to make recommendations to EPA concerning the designation of areas in the State within 1 year after promulgation of a new or revised NAAQS (i.e., by July 1998). The EPA is then required to designate areas across the country no later than 2 years following the promulgation of the NAAQS. The EPA may extend the time period for making these designations by up to 1 additional year if the Agency lacks sufficient information to make the designations in the 2-year timeframe. Therefore, EPA is required to make area designations in accordance with the revised PM-10 NAAQS no later than July 2000. As indicated in EPA guidance, the designations will be based on the most recent 3 consecutive years of air quality data from Federal reference or equivalent method monitors.
On July 24, 1998, the State of Idaho submitted air quality data to EPA for the years 1994-1996 for the Northern Ada County/Boise nonattainment area demonstrating that the area met the PM-10 standards that were in effect prior to September 16, 1997. The submission included a request that EPA determine that the pre-existing PM-10 NAAQS no longer apply to that area. Idaho also requested that the CAA section 107 nonattainment area designation for the Northern Ada County/Boise area be revoked.
EPA evaluated Idaho's request in accordance with the above guidance and regulation. As a result, on October 26, 1998, EPA published a Federal Register action proposing to approve Idaho's request to revoke the PM-10 standard in effect before September 16, 1997 for the Northern Ada County/Boise area (63 FR 57086). The October 26, 1998, action also indicated that anyone wishing to comment on EPA's proposed action should do so by November 25, 1998.
During the comment period, 135 parties commented on the proposed revocation action. Of the 135 commenters, 123 opposed and 12 supported EPA's proposed action. A number of additional comments were received after the comment period closed. There were no comments concerning EPA's proposal to reformat Idaho's 40 CFR 81.313 table for PM-10 designations to more accurately reflect the designation status of the areas within each of Idaho's Air Quality Control Regions. EPA has thoroughly considered the comments in determining the appropriate action concerning Idaho's request for revocation. A summary of EPA's review of the comments is presented in the ``Response to Public Comments'' section below.
EPA is approving Idaho's request that the PM-10 NAAQS that existed before September 16, 1997, no longer apply to the Northern Ada County/ Boise area, and is revoking the nonattainment designation associated with those standards. The following is a review of the comments received on the proposed action.
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EPA Response To Public Comments:
The following discussion summarizes and responds to the significant comments which were received concerning the Federal Register document proposing revocation of the section 107 PM-10 NAAQS for Northern Ada County/Boise, Idaho published on October 26, 1998 (63 FR 57086).
Comment: A number of commenters claim, generally, that revocation of the 1987 PM-10 NAAQS, as proposed by EPA, does not satisfy the criteria in section 107(d)(3)(E) of the CAA for terminating an area's nonattainment designation, and that nothing in the NAAQS promulgation notice, which established the revocation criteria, purported to modify or revise that Section. Specifically, commenters, representing environmental organizations, state that the Act does not authorize EPA to treat the revocation request from the Governor of Idaho as being exempt from the requirements of section 107(d)(3)(E) as a whole and, thereby, avoid part D requirements, such as conformity. Comments were also received which state that the area's airshed is already at capacity for particulate matter, as recent modeling by IDEQ demonstrates, and EPA has made no finding that ``the improvements in air quality is due to permanent and enforceable reductions in emissions'' as required by section 107(d)(3)(E)(iii) of the CAA. Finally, commenters stated that there is no maintenance plan proposed by Idaho or approved by EPA as required by sections 107(d)(3)(E)(iv) and 175A as a prerequisite for removing the nonattainment designation, and that it appears that Ada County cannot maintain its current ``clean'' air quality.
Response: The EPA's authority for this action is based on the regulatory provisions adopted when it promulgated the revised PM-10 NAAQS in July 1997. 62 FR 38652. Those regulations, codified in 40 CFR 50.6(d), provide that the pre-existing PM-10 standards will no longer apply to an area attaining those standards as of September 16, 1997, once EPA approves a State Implementation Plan (SIP) applicable to the area containing all PM-10 control measures adopted and implemented by the State prior to September 16, 1997, and a section 110 SIP implementing the PM standards published on July 18, 1997. The preamble to the PM NAAQS revision stated that, ``to provide for an effective transition'' from the existing to the revised PM-10 NAAQS, the effective date of the revocation of the PM-10 NAAQS in effect before September 16, 1997, was delayed so that the pre-existing PM-10 NAAQS, and associated provisions, ``will continue to apply for
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an interim period'' until the criteria described above are met. 62 FR 38701. The EPA believes that these are the only criteria that may be applied in this rulemaking, and that they have been satisfied in the case of the Ada County/Boise, Idaho area. This approach to revocation of the pre-existing PM-10 standards is also emphasized in the memorandum from President Clinton to EPA Administrator Browner outlining a strategy for implementing the revised PM and ozone NAAQS that was published on the same day as the revised NAAQS. 62 FR 38421, 38428-38429 (July 18, 1997). Additionally, when EPA promulgated the regulation, on which today's action is based, EPA explicitly stated that it was not requiring approval of attainment demonstrations or maintenance plans as a prerequisite to its determination that the pre- existing PM-10 NAAQS no longer applies. 62 FR 38701. In essence, the commenters' complaint, properly viewed, does not relate to the action being taken at this time, but relates to the regulatory provision on which this action is based. That regulation was promulgated in July 1997 and presented the appropriate opportunity for commenters to raise these issues. See section 307(b)(1) of the Act. Moreover, EPA is not bound to follow the provisions of section 107(d)(3)(E) when a NAAQS has been revised, and the NAAQS on which a nonattainment designation was based has been replaced by a new NAAQS, the implementation for which will supersede the implementation of the old NAAQS. Therefore, since the action being taken by EPA is not based on section 107(d)(3)(E) and its attendant provisions, which are applicable only when an area is being redesignated to attainment, it was not necessary for the Agency to ``modify or revise'' that section, as certain commenters allege. It is also not necessary for EPA to determine that improvements are due to permanent and enforceable reductions in emissions. As for the fact that certain areas will no longer be subject to conformity, that is a consequence of the conformity provisions of the statute, which make it applicable only to areas that are designated nonattainment or that have maintenance plans approved under section 175A. Such a result is not arbitrary or capricious nor an abuse of discretion on EPA's part. It should be understood, however, that any areas that, pursuant to applicable EPA regulations, are determined to violate the revised PM-10 NAAQS will be designated nonattainment for that NAAQS and become subject to the Act's nonattainment requirements, including conformity, at that time. This would include areas for which requests for revocation of the pre-existing PM-10 NAAQS are approved by EPA.
Comment: EPA received many comments stating that the local meteorological conditions render the last three years of ambient monitoring data unrepresentative. These comments suggest that the reason the Northern Ada County area has not had monitored violations of the PM-10 NAAQS in the past three years is because the area has not experienced its usual wintertime inversion weather conditions. They state that a lack of monitored violations in a period during which critical weather conditions have not occurred is not sufficient evidence for EPA to conclude that attainment has been reached in the area. For this reason, commenters question whether the area will be able to continue to attain the pre-existing PM-10 NAAQS during the interim period before designations are made for the revised PM-10 standard in July 2000. Commenters further state that the presence of mobile source emissions, the cumulative impacts of smoke and particulate matter from agricultural sources, as well as other particulate matter emissions may cause the Northern Ada County area to violate the pre-existing NAAQS if revocation of the pre-existing standard occurs.
Response: As discussed in the preamble to the PM NAAQS revisions of July 18, 1997, EPA is not requiring an approval of attainment demonstrations or maintenance plans for the current PM-10 NAAQS. For the purpose of revoking the pre-existing PM-10 NAAQS, EPA is requiring that the State has a SIP approved by EPA in place which contains the PM-10 control measures that were adopted and implemented at the State level, and which were responsible for bringing the area into attainment of the pre-existing PM-10 standards. EPA also requires that the State certify, i.e., provide the necessary information to assure EPA, that the section 110 SIP for the area contains adequate resources as well as the legal authority needed to implement the revised PM-10 and the new PM-2.5 NAAQS. See 40 CFR 50.6(d).
EPA believes that the State of Idaho has met the requirements for revocation of the pre-existing PM-10 NAAQS, pursuant to 40 CFR 50.6 (d), as well as EPA guidance related to revocation, for the following reasons: (1) The State has submitted air quality data for 1994-1996 which demonstrates that the area is attaining the pre-existing PM-10 NAAQS that were in effect prior to September 16, 1997. Air quality data for the area also indicates that the area has not measured an exceedance of the pre-existing NAAQS during this time period. (The highest 24-hour value recorded during calendar years 1994 to 1996 was 131 ‹greek-m›g/m3, which is significantly below the pre-existing standard of 150 ‹greek-m›g/m3. The highest annual-average for the area was 41.2 ‹greek-m›g/m3 which is below the pre-existing standard of 50 ‹greek-m›g/m3.); (2) The State has an approved part D, PM-10 SIP in place for the area (See 59 FR 48582 and 61 FR 27019) which includes all PM-10 control measures that were adopted and implemented at the State level to meet the pre-existing PM-10 NAAQS; (3) In Idaho's July 24, 1998, request for revocation, the State provided information demonstrating to EPA that it has the legal authority and resources in its current section 110 SIP needed for purposes of implementing the revised PM-10 NAAQS and the new NAAQS for PM-2.5.
Many commenters believe that the last three years of meteorological data is not representative of the kinds of weather typically experienced in the Boise area in the past. EPA believes, however, that the method for calculating whether an area is violating or attaining the PM-10 NAAQS considers such variations. Pursuant to 40 CFR part 50, appendix K, sections 2.1 and 2.2, the 24 hour and the annual standards for the pre-existing PM-10 standard are attained when the expected exceedances per year, at each monitoring site in an area, is less than or equal to one. In the simplest case, the number of expected exceedances at a given site is determined by recording the number of exceedances in each calendar year and then averaging them over the period of the last 3 most recent calendar years. The requirement to average 3 successive yearly results is designed to account for the random nature of meteorological conditions that affect the formation and dispersion of particles in the atmosphere. If, for example, only one year is considered, the compliance determination may be dependent on data results for a year with unusually adverse or unusually favorable weather conditons. Hence, the standard is designed to reduce the problem of year-to-year variability by averaging 3 years of data. See 52 FR 24634, 24640 (July 1, 1987).
Moreover, while EPA's revocation policy only requires consideration of ambient air quality data for the years 1994 through 1996, it is important to recognize that the Northern Ada County/Boise Area has not had an exceedance of the pre-existing NAAQS since January 7, 1991, all the way to the
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present. Additionally, Boise's 1991 attainment plan used worst-case meteorological data to determine the appropriate PM-10 control measures for the area. These are the control measures that have been relied on and implemented in the area, and that have allowed the area to attain the pre-existing PM-10 NAAQS. Although, EPA agrees that the area's recent weather characteristics are different from past patterns, EPA also believes it should be recognized that those differences, i.e., the lack of severe and prolonged wintertime inversions, have been a fact for at least eight years now. Consequently, EPA believes that all these factors provide a sufficient basis to determine, consistent with the revocation criteria in 40 CFR 50.6(d), that the area has attained the pre-existing PM-10 standards.
Comment: A number of comments were received regarding the issue of conformity. Several commenters stated that the State's request, and the proposed approval of the revocation avoids the conformity requirements established under section 176(c) of the CAA. Other commenters, representing environmental organizations, claim that the motor vehicle emissions budget, that is adopted by the State as part of the SIP and, they argue, is implemented through the conformity program, is a control measure that effectively requires motor vehicle emissions in the nonattainment area to be capped at levels specified in the SIP. The commenters believe that without conformity the State cannot ensure that motor vehicle emissions will not increase over time as a result of population and growth in vehicle miles traveled (VMT). Given this, the commenters argue that (1) the State cannot satisfy EPA's requirement that all measures implemented before September 1997 will continue to be implemented, and (2) EPA cannot find that the remaining measures in the SIP provide for attainment and maintenance, as required by section 110.
Response: As stated in previous responses, EPA is not requiring States, under its transition policy, to demonstrate attainment and maintenance of the PM-10 NAAQS that are being replaced by revised PM-10 NAAQS. Additionally, while EPA agrees with the commenters about the basic purpose of motor vehicle emission budgets in SIPs, EPA does not agree with the characterization of the role served by conformity in relation to those budgets and the SIP in general. EPA believes the conformity provisions of the Act demonstrate that conformity is a process which requires the establishment of procedures or techniques by EPA and States to ensure that emissions-generating activity on the part of Federal agencies does not undermine the air quality reduction or attainment goals of the SIP. Section 176(c)(4)(C) of the Act makes this clear by saying that SIPs must include ``criteria and procedures for assessing the conformity of any plan, program, or project subject to the conformity requirements of this subsection.'' Conformity is demonstrated by showing that the emissions from the Federal action fall within the emissions budget or emissions reduction targets established in the SIP. And, until such a showing is made, the Federal action may not proceed. But, while conformity operates to constrain Federal activity that is inconsistent with the SIP emissions budgets or emissions reductions targets, the budgets themselves are established and enforced through the SIP, not by the conformity program. Therefore, while the conformity requirements may force adjustments to the SIP in order to allow a Federal action to proceed, such as requiring the adoption of offsetting emissions, the conformity program does not itself directly control emission rates, nor is it the sole determinant of whether a State can attain or maintain a NAAQS.
Finally, once this final action becomes effective, the pre-existing PM-10 NAAQS and associated designation for Northern Ada County, in effect before September 16, 1997, will no longer apply. Hence, at that time, any requirements of the Act that are associated with those standards and designation, including conformity requirements, will no longer have any validity as well.
Comment: Commenters representing several environmental organizations indicate that the major source preconstruction review programs, and other control programs of the Act, are tied directly to area designations and that EPA is not free to ``carve out huge exemptions that could allow major new sources of PM to be built without any air quality review because they are located in an area without a designation for PM.''
Response: EPA agrees that the preconstruction review requirements of the Act, including the part D nonattainment new source review (NSR) and prevention of significant deterioration (PSD) requirements, are tied to the section 107 area designations. However, it is incorrect for the commenters to conclude that the revocation of area designations for PM-10 will result in the lack of a permit review for major sources of PM-10. While it is true that the nonattainment NSR requirements will no longer apply with respect to PM-10 in an area where the PM-10 nonattainment designation is revoked, certain PSD requirements will apply instead with respect to PM-10.
It is important to recognize that there are differences in the way that the two major source preconstruction review programs are tied to the section 107 area designations. The nonattainment NSR requirements under part D of the Act are tied directly to the designation of nonattainment on a pollutant-specific basis. That is, a new source proposing to locate in a nonattainment area for PM-10, for example, would be required to undergo nonattainment NSR for emissions of PM-10 emitted in major amounts. The same source would not be subject to nonattainment NSR for other pollutants unless (1) the area were designated nonattainment for the pollutant, and (2) the source would emit the pollutant in major amounts. Under PSD, a proposed source locating in an area designated attainment or unclassifiable for any pollutant is subject to review for any pollutant subject to regulation under the Act which will be emitted in major amounts and for any other pollutant which will be emitted in significant amounts, as long as the area is not designated nonattainment for such pollutant. Consequently, when a proposed source will emit PM-10 in significant amounts in an area designated attainment for SO‹INF›2‹/INF›, for example, the source must undergo PSD review for PM-10 if the source will also emit another pollutant in major amounts. Since, as a result of this action, the Northern Ada County/Boise, ID area is not designated nonattainment for PM-10, PM-10 emissions are subject to certain PSD requirements, even though the area is currently undesignated with respect to PM-10. This is EPA's interpretation of the PSD applicability provisions under 40 CFR 51.166(i)(2), (i)(3), and (i)(5), and 40 CFR 52.21(i)(2), (i)(3), and (i)(5). Since the Northern Ada County/Boise, ID area has existing designations for the other NAAQS (i.e., other than for particulate matter), new major sources (of any of those pollutants) that emit PM-10 in significant amounts will be subject to the appropriate PSD requirements. (See response below.)
Comment: Commenters state that EPA's proposed action fails to ensure that the Prevention of Significant Deterioration (PSD) increments for PM-10, along with an accurate baseline, will continue to apply.
Response: EPA acknowledges that in its notice proposing to revoke the PM-10 nonattainment area designation for
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the Northern Ada County/Boise area, EPA indicated that the PSD permitting requirements would continue to apply but did not explain how it would ensure the implementation of the PM-10 increments in those areas. Following its proposal, EPA concluded that in the absence of a designation pursuant to section 107 of the Act, there is no basis for establishing the baseline date and baseline area in association with the applicable PSD increment. This arises from the fact that the existing definitions associated with the PSD increments, as contained in the PSD regulations in parts 51 and 52 of the Code of Federal Regulations, explicitly tie the ``baseline dates'' and ``baseline area'' for the increments to the section 107 area designation on a pollutant-specific basis. See, e.g., 40 CFR 52.21(b)(14) and (15). Thus, the comments are correct that, upon revocation of the pre- existing PM-10 NAAQS and associated nonattainment designation for areas like the Northern Ada County/Boise area that were designated nonattainment for PM-10, the PM-10 increments will not apply unless and until the area is designated attainment or unclassifiable for the revised PM-10 NAAQS.
EPA understands the commenters' concerns with the inapplicability of the PM-10 increments to such areas in the period immediately following revocation of the pre-existing PM-10 NAAQS. (The commenters referred to ``continuing'' applicability of the increments, but EPA assumes that their concern applies even for nonattainment areas, like the Northern Ada County/Boise area, in which the increments did not apply previously because of the nonattainment designation.) However, EPA believes that it would not be appropriate to delay revocation of the pre-existing PM-10 NAAQS, or otherwise attempt to create attainment or unclassifiable PM-10 designations that would apply to areas like Boise upon revocation of that NAAQS, in order to trigger applicability of the PM-10 PSD increments to such areas. EPA will be promulgating designations for the revised PM-10 NAAQS a little over a year from now. Those designations will trigger the applicability of appropriate PM-10 permitting requirements, including the PSD increments for areas designated attainment or unclassifiable for those standards. EPA believes that the other PSD requirements described in the response above--e.g., requirements to prevent emissions increases that would cause or contribute to a NAAQS violation and to apply best available control technology (BACT) for sources that are major for another pollutant and emit PM-10 in significant amounts--should be sufficient to protect air quality in this short interim period between revocation of the pre-existing PM-10 NAAQS and the promulgation of designations under the revised PM-10 NAAQS .
Comment: Commenters state that EPA's guidance and transitional policies do not actually promote their stated objectives and are inconsistent with the Act and administrative law, and requests that EPA revamp its national guidance concerning revocation of the 1987-PM-10 NAAQS.
Response: EPA believes that the policies reflected in the revocation provisions of the 1997 PM NAAQS rule and subsequent guidance documents do promote EPA's objective of ensuring that ``momentum is maintained by states in their current air programs while moving toward developing their plans for implementing the new NAAQS.'' See 63 FR 57087. Under EPA's approach, areas like and including the Northern Ada County/Boise area will not be able to adopt SIP revisions that would interfere with meeting the revised PM-10 NAAQS. EPA is requiring that all control measures which were adopted and implemented and resulted in attainment of the NAAQS be included in the SIP. Any subsequent attempt to remove these measures would be subject to all requirements for SIP revisions. (See section 110(l).) Moreover, as stated above, most major new stationary source growth will be allowed only if the emissions are controlled to BACT levels and would not cause or contribute to NAAQS violations. EPA believes the retention of the SIP control measures that brought these areas into attainment, and application of these PSD requirements, is sufficient to maintain momentum in these states' current programs in the short period until the air quality planning requirements applicable upon designation for the revised PM-10 NAAQS are triggered.
Comment: Commenters expressed concern that the proposed revocation fails to recognize that the action will allow the State to make decisions for new federally-funded highway projects to proceed, which will encourage the use of more single occupancy vehicles and result in an increase of PM-10 emissions, instead of spending money on projects that would reduce pollution.
Response: EPA recognizes that revoking the pre-existing PM-10 standard and removing the nonattainment designation for the Ada County/ Boise Area, among other things, will allow for federal funding of a number of highway projects in the area. However, EPA's decision is based on its determination that the criteria for revocation set forth in 40 CFR 50.6(d) have been met by the State of Idaho. It should be kept in mind that, as previously discussed, the current SIP and the controls it imposes on emission levels for source categories throughout the area, will remain in place after the standard is revoked and Boise is no longer designated a nonattainment area for the pre-existing PM-10 standard. Finally, under the Act, it is the State, and not EPA, that has the primary authority and responsibility to determine how to best manage and control the air resources within the State, including decisions on how to address anticipated increases in vehicle emissions.
Comment: Commenters claim that, at the local level, there was inadequate opportunity, and in some cases the public was discouraged, even intimidated, from participating or commenting on the request for revocation. The comments also state that the public was not sufficiently aware of the revocation request, or the related effects of the revocation action, in a timely manner, to be able to have a voice in the debate about the request. It was also said that an Ada Planning Association (APA) letter, dated November 13, 1998, supporting early revocation, was approved at an APA executive committee meeting, and not a meeting of the full APA board, a procedure not authorized under APA bylaws.
Response: The Agency believes that any deficiencies in the State or local process should be addressed at the State or local level. The Agency believes, however, that the comment process it undertook when considering the State's revocation request did afford meaningful public review. The action being taken by EPA today is based upon a revocation request received from Idaho's Division of Environmental Quality (DEQ). The mode of submission was consistent with similar air quality-related submissions made by the State of Idaho. The proposal for this action was published in the Federal Register on October 26, 1998. 63 FR 57086. EPA's proposed action on this matter served to formally put the public on notice concerning the revocation request, and also served to invite public comment. In response to the Federal Register document, EPA received over 130 comments expressing a variety of viewpoints on all aspects of the revocation and its effect. Consequently, EPA believes that its actions and the public response both demonstrate that
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ample opportunity for public comment has been provided, and therefore EPA will not be reopening the comment period for this action. EPA appreciates the interest that the public has shown concerning issues involving air quality in the Northern Ada County/Boise area and encourages continued involvement in the public process.
Comment: Comments were received expressing medical concerns regarding the relationship between potential deterioration of PM-10 air quality and enumerated respiratory illnesses. These comments also cited recent articles by the American Lung Association concerning increases in respiratory deaths and diseases, that are attributable, in part, to elevated PM-10 levels. Based on the modeling forecasts in the Ada Planning Association's study, the commenters appear to believe that revocation of the pre-existing PM-10 standards would eliminate existing protections and result in a de facto worsening of air quality in the Boise area, particularly if coupled with inversion episodes. Indeed, they state that the revocation action would be a significant setback for the protection of human health, environmental air quality, and quality of life.
Response: EPA agrees that elevated levels of particulate matter are linked to aggravated respiratory and cardiovascular effects and contribute to illnesses among the members of the public. Indeed, it is evidence of this very nature that prompted the Agency to promulgate the revisions it made to the PM standards. Today's action will result in the revocation of the pre-existing PM-10 standards, which have been replaced by new PM standards. Thus, the action being taken today by EPA is not intended to and does not eliminate the air quality gains made through implementation of the pre-existing PM-10 NAAQS. To the contrary, it requires the State to consolidate in its SIP and continue implementing the control measures that allowed the area to monitor attainment of those standards. As noted earlier, under EPA's transition policy it is a pre-condition to revocation that the area demonstrate with air quality data from 1994-96 that it is currently attaining the pre-existing PM-10 NAAQS and has a fully-approved SIP in place. Idaho has satisfied these conditions with respect to the Northern Ada County/ Boise area. The area is implementing and, even after revocation, will continue to implement its federally-approved part D SIP. Also, the PM- 10 controls associated with the pre-existing NAAQS, that resulted in air quality data which shows attainment of that NAAQS, will remain in place. It is EPA's belief that continued implementation and enforcement of the existing control measures will assure continued protection of the public health during the transition towards implementation of the revised PM-10 NAAQS.
Comment: One commenter indicated that the modified standard would adjust emission levels based on 24-hour averages in lieu of the instantaneous measurements which are currently employed.
Response: EPA is unclear about what the precise nature of the commenter's concern is, and does not understand what types of instantaneous measurements for PM-10 are being referred to by the commenter. NAAQS PM monitors are not designed for instantaneous measurements. The pre-existing PM-10 NAAQS, the revised PM-10 NAAQS, and the new PM-2.5 NAAQS are all based on 24-hour averages. Particulate matter data is collected for a 24-hour period with EPA-approved monitors. The collected data is then averaged over that 24-hour period and compared to the 24-hour PM standard by EPA to make regulatory determinations.
Comment: Commenters stated that EPA should not revoke the PM-10 standards in Idaho unless they plan to do the same nationwide, and that a bad precedent would be set by the revocation.
Response: Even though the timing will vary, EPA will act to revoke the pre-existing PM-10 NAAQS for other PM-10 areas, since those standards have been replaced by new PM standards. Requests for revocation must be initiated by the State, which must also satisfy EPA that the requirements for approval of such requests, as set forth in 40 CFR 50.6(d), have been met.
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Final Action
EPA is approving Idaho's request and by this final action is determining that the PM-10 NAAQS that existed before September 16, 1997, will no longer apply to the Northern Ada County/Boise area. EPA is also revoking the nonattainment designation associated with those standards. Once this action becomes effective, among other things, the conformity provisions of section 176(c) of the Act and the part D PM-10 nonattainment new source review requirements, will no longer apply for the Northern Ada County/Boise area.
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Administrative Requirements
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Executive Order 12866
The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order (E.O.) 12866, Regulatory Planning and Review.
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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 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.
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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.
EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it does not involve
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decisions intended to mitigate environmental health or safety risks.
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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.
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Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) 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 action will affect the regulatory status of a geographical area but will not impose any new regulatory requirements on sources. For this reason, the Administrator certifies that this action has no significant impact on any small entities, nor will it affect a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, 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. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
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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 final approval action 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. Because EPA is not imposing new Federal requirements, neither State, local, or tribal governments, nor the private sector should incur costs from this action.
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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).
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Rule Effective Date
The EPA finds that there is good cause for this action to become effective immediately upon publication because a delayed effective date is unnecessary due to the nature of this action, which is a determination that the PM-10 NAAQS in effect prior to September 16, 1997, no longer applies to the Northern Ada County/Boise area. The immediate effective date for this action is authorized under both 5 U.S.C. 553 (d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule ``grants or recognizes an exemption or relieves a restriction'' and section 553(d)(3), which allows an effective date less than 30 days after publication ``as otherwise provided by the agency for good cause found and published with the rule.''
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Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filedin the United States Court of Appeals for the appropriate circuit by May 11, 1999. Filing a petition for reconsideration by 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
Environmental protection, Air pollution control, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
Air pollution control, National parks, Wilderness areas.
Dated: February 26, 1999. Carol M. Browner, EPA Administrator.
For the reasons stated in the preamble, parts 52 and 81, chapter I, title 40 of the Code of Federal Regulations are amended as follows:
PART 52--[AMENDED]
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The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart N--Idaho
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Section 52.676 is added to read as follows:
Sec. 52.676 Control strategy: Particulate matter.
Revocation of PM-10 NAAQS--On July 24, 1998, the State of Idaho submitted a request that EPA determine that the PM-10 NAAQS in effect as of
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September 16, 1997, no longer apply to the Northern Ada County/Boise area and to revoke the nonattainment designation associated with that NAAQS. The State has satisfied the requirements of the Clean Air Act as well as 40 CFR 50.6(d) and Guideline for Implementing the 1-Hour Ozone and Pre-Existing PM-10 NAAQS dated December 29, 1997. (A copy of the guidance document may be found on the World Wide Web site at the following URL: http://www.epa.gov/ttncaaa1/1pgm.html). Therefore, EPA revokes the pre-existing NAAQS for particulate matter as delineated in 40 CFR 50.6. The revised NAAQS for particulate matter in 40 CFR 50.7 remain in effect.
PART 81--[AMENDED]
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The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
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In Sec. 81.313, the table entitled ``Idaho--PM-10'' is revised to read as follows:
Sec. 81.313 Idaho.
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Idaho PM-10
Designation
Classification Designated area
------------------------------------------------------------------------------ Date
Type
Date
Type
Ada County:
Boise........................ 3/12/99Pre-existing............. 3/12/99Pre-existing PM-10 NAAQS NA...........
PM-10 NAAQS NA. Northern Boundary--Beginning at a point in the center of the channel of the Boise River, where the line between sections 15 and 16 in Township 3 north (T3N), range 4 east (R4E), crosses said Boise River; thence, west down the center of the channel of the Boise River to a point opposite the mouth of More's Creek; thence, in a straight line north 44 degrees and 38 minutes west until the said line intersects the north line T5N (12 Ter. Ses. 67); thence west to the northwest corner T5N, R1W Western Boundary--Thence, south to the northwest corner of T3N, R1W; thence east to the northwest corner of section 4 of T3N, R1W; thence south to the southeast corner of section 32 of T2N, R1W; thence, west to the northwest corner of T1N, R1W; thence, south to the southwest corner of section 32 of T2N, R1W; thence, west to the northwest corner of T1N, R1W; thence south to the southwest corner of T1N, R1W Southern Boundary--Thence, east to the southwest corner of section 33 of T1N, R4E Eastern Boundary-- Thence, north along the north and south center line of Townships T1N, R4E, T2N, R4E, and T3N, R4E, Boise Meridian to the beginning point in the center of the channel of the Boise River. Shoshone County.................. 1/20/94 Nonattainment............ 1/20/94 Moderate.
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Northwest quarter of the Northwest quarter, Section 8, Township 48 North, Range 2 East; Southwest quarter of the Northwest quarter, Section 8, Township 48, North, Range 2 East; Northwest quarter of the Southwest quarter, Section 8, Township 48 North, Range 2 East; Southwest quarter, Section 8, Township 48 North, Range 2 East; Southwest quarter of the Southwest quarter, Section 48 North, Range 2 East, Boise Base (known as ``Pinehurst expansion area'').
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City of Pinehurst......... 11/15/90 Nonattainment............ 11/15/90 Moderate. Power-Bannock Counties, part of: (Pocatello):
State Lands.................. 11/15/90 Nonattainment............ 11/15/90 Moderate. Portneuf Valley Area: T.5S, R.34E Sections 25-36; T.5S, R.35E Section 31; T.6S, R.34E Sections 1-36; T.6S, R.35E Sections 5-9, 16-21, 28-33 Plus the West \1/2\ Sections 10, 15, 22, 27, 34 T.7S, R.34E Sections 1-4, 10-14, and 24. T.7S, R.35E Sections 4-9, 16-21, 28-33. Plus the West \1/2\ of Sections 3, 10, 15, 22, 27, 34 T.8S, R.35E Section 4 Plus the West \1/2\ of Section 3 Power-Bannock Counties, part of: (Pocatello):
Fort Hall Indian Reservation. 11/15/90 Nonattainment............ 11/15/90 Moderate. T.5S, R.34E Sections 15-23; T.5S, R.33E Sections 13-36 T.6S, R.33E Sections 1-36 T.7S, R.33E Sections 4, 5, 6 T.7S, R.34E Section 8 Bonner County.................... 11/15/90 Nonattainment............ 11/15/90 Moderate.
The Sandpoint Area: Sections 1-3, 9-12, 15, 16, 21, 22, 27, 28 of range 2 west and Township 57 north; and the western \3/4\ of Sections 14, 23 and 26 of the same Township and range coordinates. Eastern Idaho Intrastate AQCR 61. 11/15/90 Unclassifiable
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(Excluding the Power-Bannock Counties, part of: Pocatello- State Lands and Fort Hall Indian Reservation PM-10 nonattainment areas). Eastern Washington-Northern Idaho 11/15/90 Unclassifiable Interstate AQCR 62.
(Excluding the Shoshone County and City of Pinehurst PM-10 nonattainment areas). Idaho Intrastate AQCR 63......... 11/15/90 Unclassifiable
(Excluding the Sandpoint Area PM-10 nonattainment area). Metropolitan Boise Intrastate
11/15/90 Unclassifiable AQCR 64.
(Excluding the former Ada County Boise PM-10 nonattainment area).
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[FR Doc. 99-5380Filed3-11-99; 8:45 am]
BILLING CODE 6560-50-P
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