Air quality planning purposes; designation of areas: Idaho,
[Federal Register: June 19, 1998 (Volume 63, Number 118)]
[Proposed Rules]
[Page 33597-33605]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19jn98-38]
ENVIRONMENTAL PROTECTION AGENCY
[ID 21-7001; FRL-6113-4]
Designation of Areas for Air Quality Planning Purposes: State of Idaho and the Fort Hall Indian Reservation
AGENCY: Environmental Protection Agency.
ACTION: Notice of proposed rulemaking.
SUMMARY: In this action, the Environmental Protection Agency (EPA) proposes to revise the designation for particulate matter with an aerodynamic diameter of less than a nominal 10 microns (PM-10) for the Power-Bannock Counties PM-10 nonattainment area by creating two distinct nonattainment areas that together cover the identical geographic area as the original nonattainment area. The revised areas would be divided at the boundary between State lands and the Fort Hall Indian Reservation, with one revised area comprised of State lands and the other revised area comprised of lands within the exterior boundary of the Fort Hall Indian Reservation. The redesignation is based upon a request from the State of Idaho, which is supported by monitoring and modeling information. Both areas would retain PM-10 nonattainment designations and classification as moderate PM-10 nonattainment areas as a result of this proposed action.
In a concurrent notice of proposed rulemaking published today, EPA is proposing to make a finding that the proposed PM-10 nonattainment area within the exterior boundary of the Fort Hall Indian Reservation failed to attain the National Ambient Air Quality Standards (NAAQS) for PM-10 by the applicable attainment date. Such a finding would, by operation of law, result in the reclassification of the proposed PM-10 nonattainment area within the Fort Hall Indian Reservation to a serious PM-10 nonattainment area.
EPA recently established a new standard for particulate matter with a diameter equal to or less than 2.5 microns and also revised the existing PM-10 standards. Today's proposal,
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however, does not address these new and revised standards.
DATES: All written comments should be submitted to Steven K. Body, EPA Region 10, [Docket #ID 21-7001], at the address indicated below by July 20, 1998.
ADDRESSES: Information supporting this action can be found in Public Docket No. [#ID 21-7001]. The docket is located at EPA, Region 10, 1200 Sixth Avenue, Seattle WA 98101. The docket may be inspected from 9:00 am to 4:30 pm on weekdays, except for legal holidays. A reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Steven K. Body, EPA Region 10, Office of Air Quality (OAQ-107), EPA, Seattle, Washington, (206) 553-0782.
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Background
A portion of Power and Bannock Counties in Idaho is designated nonattainment for PM-10 \1\ and classified as moderate under sections 107(d)(4)(B) and 188(a) of the Clean Air Act upon enactment of the Clean Air Act Amendments of 1990 (Act or CAA). See 40 CFR 81.313 (PM-10 Initial Nonattainment Areas); see also 55 FR 45799 (October 31, 1990); 56 FR 11101 (March 15, 1991); 56 FR 37654 (August 8, 1991); 56 FR 56694 (November 6, 1991).\2\ For an extensive discussion of the history of the designation of the Power-Bannock Counties PM-10 nonattainment area, please refer to the discussion at 61 FR 29667, 29668-29670 (June 12, 1996).
\1\ There are two pre-existing PM-10 NAAQS, a 24-hour standard and an annual standard. See 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 ten microns in diameter (PM-10). The annual PM-10 standard is attained when the expected annual arthimetic average of the 24-hour samples for a period of one year does not exceed 50 micrograms per cubic meter (ug/m3). Attainment of the 24- hour PM-10 standard is determined by calculating the expected number of days in a year with PM-10 concentrations greater than 150 ug/m3. The 24-hour PM-10 standard is attained when the expected number of days with levels above the standard, averaged over a three year period, is less than or equal to one. See 40 CFR 50.6 and 40 CFR part 50, appendix K.
\2\ The 1990 Amendments to the CAA made significant changes to the Act. See Public Law No. 101-549, 104 Stat. 2399. References herein are to the CAA as amended. The CAA is codified, as amended, in the United States Code at 42 U.S.C. 7401, et seq.
The Power-Bannock Counties PM-10 nonattainment area covers approximately 266 square miles in south central Idaho and comprises both trust and fee lands within the exterior boundary of the Fort Hall Indian Reservation and State lands in portions of Power and Bannock Counties. Approximately 75,000 people live in the nonattainment area, most of whom live in the cities of Pocatello and Chubbuck, which are located near the center of the nonattainment area on State lands. Approximately 15 miles northwest of downtown Pocatello is an area known as the ``industrial complex,'' which includes the two major stationary sources of PM-10 in the nonattainment area. The boundary between the Fort Hall Indian Reservation and State lands runs through the industrial complex. One of the major stationary sources of PM-10, FMC Corporation (FMC), is located primarily on fee lands within the exterior boundary of the Fort Hall Indian Reservation.\3\ The other major stationary source of PM-10 in the nonattainment area, J.R. Simplot Corporation (Simplot), is located on State lands immediately adjacent to the Reservation.
\3\ EPA has learned that a portion of the FMC facility is located on State lands. This issue is discussed in more detail below.
The State of Idaho has established and operates four PM-10 State and Local Air Monitoring Stations (SLAMS) in the current Power-Bannock Counties PM-10 nonattainment area, all of which are on State lands (the State monitors). All of the State monitors meet EPA SLAMS network design and siting requirements, set forth at 40 CFR part 58, appendices D and E. There have been no violations of the annual PM-10 standard at any of the State monitors since 1990. No levels above the 24-hour standard have been recorded at any of the State monitors since January of 1993.
The Shoshone-Bannock Tribes began operating a PM-10 monitor on the portion of the nonattainment area within the exterior boundary of the Reservation in February 1995. Prior to this time, the Tribes relied on data from the State operated samplers for area designations and classifications. This reliance was due to a lack of resources to establish and operate their own Tribal monitoring stations. In 1994 the Tribes requested and EPA granted the Tribes additional program support grant funds to enable the Tribes to establish their own monitoring stations to collect ambient air quality data representative of conditions on the Reservation and to generate data to support Tribal air quality planning efforts. This monitor, called the ``Sho-Ban site,'' is located approximately 100 feet north of the FMC facility across a frontage road. Due to operational problems with the sampler and quality assurance problems, valid data were not reported for this monitor until October 1, 1996. Also in October 1996, the Tribes initiated monitoring at two new sites. The ``primary site'' is located approximately 100 feet north of the FMC facility across the frontage road, 600 feet east of the Sho-Ban site and approximately 600 feet from the boundary between the Fort Hall Indian Reservation and State lands. The ``Tribal background site'' is approximately one and one-half miles southwest of the FMC facility upwind of the predominant wind direction from the industrial complex. All three monitoring sites are owned by the Tribes and operated by a contractor for the Tribes. The Tribal monitoring sites meet EPA SLAMS network design and siting requirements, set forth at 40 CFR part 58, appendices D and E. Both the Sho-Ban and Primary sites on the Reservation portion of the nonattainment area have recorded numerous PM-10 concentrations above the level of the 24-hour PM-10 NAAQS since October 1996.\4\
\4\ Private industry operated a seven station air monitoring network, funded by FMC and Simplot, on and near the industrial complex from October 1, 1993, through September 30, 1994 (EMF monitors). There were no measured PM-10 concentrations above the level of the 24-hour PM-10 NAAQS (150 ug/m3) at any of the EMF stations. EMF Site #2, however, which was on the Fort Hall Indian Reservation less than 300 yards east of where the primary site is now located, reported several 24-hour concentrations of PM-10 at or near the level of the NAAQS. EMF Site #2 also reported an annual concentration of 55.1 ug/m3 for the one year period the network was in operation. This is 10% greater than the 50 ug/m3 level of the annual PM-10 NAAQS. Because the EMF network did not collect a calendar year's worth of data, EPA concluded that data from EMF Site #2 did not document a violation of the annual NAAQS. See 61 FR 66602, 66604 (December 18, 1996). EPA also stated, however, that the number of the recorded 24-hour concentrations at or near the level of the standard and the high annual concentration for the one-year period EMF Site #2 was in operation indicated that a serious air quality problem continued in the Power-Bannock Counties PM-10 nonattainment area. Id. This is confirmed by the more recent data from the Tribal monitors.
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This Action
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Idaho's Request
Pursuant to section 107(d)(3)(D) of the Act, the Governor of any State, on the Governor's own motion, is authorized to submit to the Administrator a revised designation of any area or portions thereof within the State. On April 16, 1998, the State of Idaho submitted to EPA a request to revise the designation of the Power-Bannock Counties PM-10 nonattainment area to split the nonattainment area into two separate nonattainment areas at the boundary between the Fort Hall Indian Reservation and State lands. Together, the two nonattainment areas would cover the same geographic area as the
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existing Power-Bannock Counties PM-10 nonattainment area.
In support of its request, the State of Idaho noted that the State has the primary PM-10 planning responsibility under the Clean Air Act for State lands within the nonattainment area, whereas EPA and the Tribes have the primary PM-10 planning responsibility for the Tribal lands within the nonattainment area. The State also noted that it has largely completed the PM-10 planning and implementation of control measures for the PM-10 sources located on State lands within the nonattainment area whereas no controls have been proposed or imposed on sources in the Tribal portion of the nonattainment area.
The State also supported its request with monitoring data which shows that State monitors have not recorded any PM-10 concentrations above the level of the 24-hour PM-10 NAAQS since January 1993 and that the State lands within the nonattainment area have attained the PM-10 NAAQS. In addition, the State provided an analysis of pollution concentrations recorded at the Tribal primary site and the Sho-Ban site as a function of wind direction which shows that violations of the PM- 10 NAAQS at the Tribal sites are not the result of emissions from sources located on State lands. The State also provided modeling information to support its assertion that sources on State lands are not contributing to the violations of the PM-10 NAAQS that have been recorded at the Tribal monitors.
On May 21, 1998, the Shoshone-Bannocks Tribes and FMC submitted to the State of Idaho documents opposing Idaho's request to EPA to split the nonattainment area into two nonattainment areas. The Tribes and FMC contend that the State failed to follow Idaho law in submitting the request to EPA without first providing public notice and opportunity for comment. The Tribes also expressed concern that splitting the area into two PM-10 nonattainment areas at the State-Reservation boundary could result in a less comprehensive approach to air quality planning in the area. In addition to its contention that the State failed to comply with State requirements for public notice and opportunity for public comment, FMC further contends that the State failed to comply with the Clean Air Act in making its request and noted that part of the FMC facility is located on State lands.
On May 29, 1998, Idaho provided EPA with a letter from the Idaho Attorney General's Office stating that public notice and opportunity to comment were not required under State law. The letter also responded to the other issues raised by FMC and asked EPA to move forward on the State's request to split the nonattainment area. The State also provided EPA with a copy of the State's letter responding to the issues raised by the Tribes. Copies of the letters from FMC and the Tribes to the State and from the State to EPA and the Tribes are in the Docket for this proposal.
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EPA's Proposed Action on Idaho's Request
In determining whether to approve or deny a State's request for a revision to the designation of an area under section 107(d)(3)(D), EPA believes it is appropriate to consider the same factors Congress directed EPA to consider when EPA initiates a revision to a designation of an area on its own motion under section 107(d)(3)(A). These factors include ``air quality data, planning and control considerations, or any other air quality-related considerations the Administrator deems appropriate.'' Based on the information submitted by Idaho and other information available to EPA, EPA believes that the air quality data, planning and control considerations, and other air quality-related considerations support the State's request to revise the Power-Bannock Counties PM-10 nonattainment area into two PM-10 nonattainment areas at the boundary between the Fort Hall Indian Reservation and State lands. EPA therefore proposes to create two separate nonattainment areas in place of the existing Power-Bannock Counties PM-10 nonattainment area. One area, to be called the ``Portneuf Valley PM-10 Nonattainment Area'', would consist of the existing portion of the Power-Bannock Counties PM-10 nonattainment area outside of the exterior boundary of the Fort Hall Indian Reservation and under the regulatory jurisdiction of the State of Idaho. The other area, to be called the ``Fort Hall PM- 10 nonattainment area,'' would consist of the existing portion of the nonattainment area within the exterior boundary of the Fort Hall Reservation. Both areas would continue to be designated nonattainment for PM-10 and classified as moderate should this proposal be finalized by EPA.
Although the comments from the Tribes and FMC were directed to the State in the context of the State proceeding, and not to EPA, EPA has considered those issues in making this proposal, as is discussed in more detail below. The Tribes and FMC will also have an opportunity to raise those and other issues in the public comment period on this proposal. 1. Air Quality Data and Other Air Quality-Related Considerations
As stated above, there have been no violations of the annual PM-10 standard at any of the four State monitoring sites since 1990 and no levels above the 24-hour standard have been recorded at any of the State sites since January of 1993. The data recorded at the State monitors also show a decline in the yearly annual average at each State monitoring station since 1993 and, with the exception of the Sewage Treatment Plant (STP) monitoring station, a decline in the highest and second highest 24-hour PM-10 readings for each year at each of the State monitoring stations. The STP monitoring site did record a 24-hour PM-10 concentration of 149 ug/m3, just below the level of the 24-hour standard of 150 ug/m3. Even if that monitoring site had recorded one PM-10 concentration above the standard, however, the 24-hour PM-10 standard would not have been violated because the site operates on an everyday sampling schedule and the expected exceedence rate, averaged over a three year period, would have been less than 1.1. Moreover, the second highest 24-hour PM-10 readings for each year at the STP site have remained fairly constant since 1993, and there has been a decline in the yearly PM-10 annual average at the STP site since 1992. In summary, the State monitors show attainment of the PM-10 standard in the State portion of the nonattainment area, as well as a general decline in the PM-10 values recorded on the State monitors.
In contrast, the monitors located within the Tribal portion of the nonattainment area continue to show numerous levels above the standard. Although the monitors did not begin recording valid data until October 1996, the number of PM-10 concentrations above the level of the 24-hour PM-10 NAAQS between October and December 1996 resulted in a violation of the 24-hour PM-10 NAAQS as of December 31, 1996, the attainment date for the area.‹SUP›5‹/SUP› Appendix K of 40 CFR part 50, contains ``gapfilling'' techniques for situations where less than three complete years of data are available. Using the gapfilling techniques of appendix K, the number
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of exceedences reported from the Sho-Ban and primary sites during the last three months of 1996 represent a violation of the 24-hour PM-10 NAAQS. The expected exceedence rate of the 24-hour standard, averaged over the years 1994, 1995, and 1996, from these two monitors is greater than 1.1, even if the days during which the monitors did not operate or collect valid data had reported zero PM-10 levels. Numerous levels above the standard have been recorded since December 31, 1996, as well.
\5\ The Power-Bannock Counties PM-10 nonattainment area originally had an attainment date of December 31, 1994, see section 188(a) and (c)(1), but the area could not demonstrate attainment by that date. At the request of the State of Idaho, EPA granted the area two one-year extensions of the attainment date, in accordance with section 188(d) of the CAA. See 60 FR 44452 (August 28, 1995) (proposed action on first extension); 61 FR 20730 (May 8, 1996) (final action on first extension); 61 FR 66602 (December 18, 1996)(direct final action on second extension).
In addition to the monitoring data which document that the monitors on State lands show attainment of the PM-10 standard, the State of Idaho also provided monitoring and modeling information to support its request to divide the current nonattainment area at the State- Reservation boundary. The State first presented information to demonstrate that there are two separate areas of air quality impacts and sources within the current nonattainment area. One area, which the State refers to as the ``urban complex,'' encompasses the City of Pocatello and is solely on State lands. The other area is the industrial complex, which includes FMC within the Fort Hall Indian Reservation and J.R. Simplot on State lands. Based on chemical analysis of the particulate collected on the filters from both State and Tribal monitors and comparing these results to the chemical composition of emissions from various sources, the State determined that the urban area is impacted by PM-10 emissions from residential wood burning, traffic, and commercial establishments. In contrast, the industrial complex is impacted by industrial emissions.
Analysis of the 1993 dispersion modeling used by the State in developing its SIP shows that the urban complex and the industrial complex have different sources contributing to the high PM-10 levels that have been recorded in each area. The modeling also shows that there is no evidence of significant mixing of emissions between the industrial complex and the urban complex. Appendix A to the State's request contains a detailed discussion of these modeling results, including an analysis of four specific days with worst case meteorology. In general, this analysis consists of PM-10 concentration isopleth graphs that demonstrate two separate areas of maximum concentrations of PM-10, one located over the urban complex and the second located over the FMC and J.R. Simplot industrial facilities.
The State also showed that, within the industrial complex, it is possible to separate the impacts of sources on Tribal lands from sources on State lands at the State-Reservation boundary. In the process of developing the PM-10 plan for the Tribal portion of the nonattainment area, EPA constructed ``pollution wind roses'' from the ambient PM-10 monitoring data from two of the Tribal monitors (the Sho- Ban site and the primary site) and the meteorological station at the primary site. ``Pollution wind roses'' relate pollutant concentration measurements (in this case PM-10 levels) and the wind direction that occurred during that measurement. The State reviewed pollution wind roses for the period from October 1996 and May 1997. The data show that, on days when the primary site recorded values greater than the 24-hour standard (150 ug/m3), the wind was blowing from the FMC facility toward the monitor, i.e., from the southwest. Similarly, on days when the Sho-Ban site recorded values greater than the standard, the wind was blowing from FMC facility toward the Sho-Ban monitor, i.e., from the south. In contrast, on days when the wind was blowing from State lands, particularly Simplot, toward the primary and Sho-Ban monitors, high PM-10 values were not recorded on the monitors. The State concludes from this information that sources on State lands, particularly Simplot, are effectively controlled and do not contribute to violations of the PM-10 NAAQS on State or Tribal lands.
EPA evaluated the information submitted by the State along with the more recent information provided by FMC to the State that a portion of the FMC facility is located on State lands. FMC property extends approximately 7000 feet east-west along a frontage road of which 1100 feet appears to extend east onto State lands. The only PM-10 sources of potential significance on this portion of FMC property (i.e., on State lands) are a portion (approximately 1100 feet) of the north and south main ore shale storage piles and a small number of unpaved access roads. The piles are approximately 1500 feet long and 300 feet wide of which two-thirds extend onto State lands. EPA estimates that PM-10 emissions from that portion of the FMC facility located on State lands account for only 89 pounds of the 12,021 pounds per day of total PM-10 emissions from the facility, or less than 1% of total FMC emissions of PM-10. When the ``pollution rose'' graphs relied on by the State are laid over a map of the area, it is apparent that violations at the primary site occur when winds are blowing from the south to west- southwest, which is down wind of the FMC calcining operations, furnace building, and slag pit operations. Violations occur at the Sho-Ban site when the winds are blowing from the west-southeast to east-southwest, which is again downwind from the FMC calcining operations, furnace building, and slag pit operations. Violations have not occurred with a wind direction blowing from the eastern portion of the FMC property, which is the portion of the FMC facility located on State lands, or from the Simplot facility, which is also located on State lands. Based on the small percentage of emissions from the FMC PM-10 sources located on State lands to total FMC PM-10 emissions and EPA's review of the pollution and wind roses for the area, EPA does not believe that the new information provided by FMC--that part of the FMC facility is located on State lands--alters the analysis provided by the State to support its request to split the existing nonattainment area into two nonattainment areas at the State-Reservation boundary. In summary, EPA agrees with the State's analysis and with the State's conclusion that emissions from sources on State lands do not appear to be contributing to the exceedences that have been recorded on the Tribal monitors. In light of the recent information provided by FMC to the State, however, EPA specifically requests comment on this issue. 2. Planning and Control Considerations
The current Power-Bannock Counties PM-10 nonattainment area encompasses two different regulatory jurisdictions: the State of Idaho for the State portion of the nonattainment area and the Shoshone- Bannock Tribes and EPA for the Reservation portion of the nonattainment area. Under the Clean Air Act, the State has the primary PM-10 planning responsibilities for the State portion of the nonattainment area. See CAA sections 110 and 189. In furtherance of those planning obligations, the State of Idaho, along with several local agencies, developed and implemented control measures on PM-10 sources located on State lands within the Power-Bannock Counties PM-10 nonattainment area. The State submitted these control measures in 1993 for the Power-Bannock Counties PM-10 nonattainment area as part of its moderate PM-10 nonattainment State Implementation Plan (SIP) under section 189(a) of the Act. These control measures include a comprehensive residential wood combustion program, including a mandatory woodstove curtailment program; stringent controls on fugitive road dust, including controls on winter road sanding and a limited
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unpaved road paving program; and a revised operating permit that represents reasonably available control technology (RACT) for the J.R. Simplot facility, the only major stationary source of PM-10 on the portion of the nonattainment area on State lands. Although EPA has not yet taken final action to approve the State's moderate PM-10 SIP for the area, EPA has previously stated (based on EPA's preliminary review in the context of approving the State's requests for extensions of the attainment date) that these control measures substantially meet EPA's guidance for reasonably available control measures (RACM), including RACT, for sources of primary particulate on the State portion of the nonattainment area. See 61 FR 66602, 66604-66605 (December 18, 1996).
The effect of these control measures on air quality can be seen in the reported ambient PM-10 measurements at the State monitoring sites. As discussed above, there have been no violations of the annual PM-10 standard since 1990 at any of the State monitoring sites, no violations or exceedences of the 24-hour PM-10 standard at any of the State sites since January 1993, and a general decline in the reported ambient PM-10 concentrations at the State sites since 1993. The beginning of the decline in the ambient concentrations roughly coincides with the period when the State began to impose the PM-10 control measures discussed above. These facts support the State's assertion that the State's PM-10 planning efforts have been effective.
In its request to split the nonattainment area, the State also discusses how it is addressing the deficiencies that EPA had previously identified in the State's SIP submission. The State has advised EPA that it will submit a SIP revision in the near future that addresses these deficiencies. The deficiencies previously identified by EPA include the State's failure to address PM-10 precursors in the State's emissions inventory and control strategy and the fact that the 1993 SIP did not demonstrate attainment in the downtown Pocatello area due to road dust emissions. The State also plans to address PM-10 emissions from Bannock-Paving Company, Incorporated. A summary of the State's plans with respect to addressing these deficiencies is presented below.
Section 189(e) of the Act states that the control requirements applicable to major stationary sources of PM-10 shall also apply to major stationary sources of PM-10 precursors, except where EPA determines that major stationary sources of PM-10 precursors do not contribute significantly to PM-10 levels which exceed the PM-10 standard in the area. At the time the State developed and submitted its SIP, PM-10 precursors were not thought to contribute to PM-10 levels which exceeded the PM-10 standard in the Power-Bannock Counties PM-10 nonattainment area. However, subsequent monitoring data and analysis of the particulates collected on the filters by the State in January 1993 showed significant levels of secondary aerosol and necessitated a reevaluation of the contribution of PM-10 precursors to the nonattainment problem in the Power-Bannock Counties PM-10 nonattainment area.‹SUP›6‹/SUP› Accordingly, in conjunction with EPA and the Tribes, the State developed a work plan for analyzing and addressing the contribution of PM-10 precursors to the nonattainment problem in the Power-Bannock Counties PM-10 nonattainment area.
\6\ Secondary aerosol particulates are small particles formed in the atmosphere through chemical reactions from emissions of precursor gases.
Since PM-10 precursors were first identified in particulate samples collected in January 1993 as a potential contributor to the nonattainment problem in the nonattainment area, however, no levels above the standard have been recorded at any of the State monitors. Instead, it appears that PM-10 precursors represent a significant fraction of the total PM-10 mass loading only during very specific meteorological conditions--cold stagnant winter days with relative high humidity. There have been only two days between 1986 and 1997 in which violations of the PM-10 NAAQS in the Power-Bannock Counties PM-10 nonattainment area have been attributed to secondary aerosols. Based on the fact that the State monitors have not recorded an exceedence since January 1993, it does not appear that major stationary sources of PM-10 precursors contribute significantly to PM-10 levels which exceed the standard within the portion of the Power-Bannock Counties PM-10 nonattainment area located on State lands. Although EPA reserves final determination on this issue until the State submits its SIP revision and EPA takes final action on that revision, EPA's preliminary determination is that stationary sources of PM-10 precursors do not appear to contribute significantly to PM-10 levels which exceed the standard on the portion of the nonattainment area on State lands. Final action on such a finding would mean that the State will not be required to further address PM-10 precursors in completing its SIP planning obligations for the State portion of the Power-Bannock Counties PM-10 nonattainment area.
EPA is aware that the Shoshone-Bannock Tribes and citizens in the Power-Bannock counties PM-10 nonattainment area believe that particulate precursors contribute to air quality problems in the area and should be addressed. EPA shares this concern. On July 18, 1997, EPA promulgated new, more stringent, air quality standards for particulate matter with an aerodynamic diameter equal to or less than 2.5 microns (PM-2.5). These standards were promulgated to address the serious health effects associated with these very small particles, of which secondary aerosol makes up a significant fraction. EPA, the State, and the Tribes are just now in the process of establishing PM-2.5 air monitoring stations to better define and characterize the nature and extent of the fine particulate air quality problem in the Portneuf Valley and Fort Hall area. EPA's preliminary determination that PM-10 precursors do not need to be addressed by the State in its current PM- 10 planning process for the Portneuf Valley area should not be interpreted to imply that particulate precursors will not need to be addressed under the new PM-2.5 standard. To the contrary, EPA believes it is likely that particulate precursors will need to be addressed in the Portneuf Valley and Fort Hall area under the new PM-2.5 standard.
Another deficiency previously identified by EPA in the State's PM- 10 planning process was the State's inability to model attainment of the PM-10 standard in the Pocatello urban area due to projected fugitive road dust emissions. The State has long suspected that the emission factors it used to estimate road dust emissions in the emissions inventory and attainment demonstration (AP-42 emission factors) were far too high. Idaho therefore commissioned a study to measure road dust emissions in the Pocatello area and to develop new emission factors if appropriate. Preliminary results from the study, which are included in the Docket for this rulemaking, indicate that the emission factors derived from the study are, on average, 68% less than the AP-42 emission factors used to develop the original emissions inventory. The State therefore asserts that the modeled exceedences of the PM-10 standard in the downtown Pocatello area appear to be due to the erroneously high road dust emission factors and are not representative of actual ambient conditions. Although EPA defers a final
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determination on this issue until it receives and reviews the State's SIP revision, EPA tentatively agrees with the State that additional controls on road dust emissions do not appear to be necessary to demonstrate attainment in the State portion of the nonattainment area.
As discussed above, the State also intends to address emissions from Bannock Paving Company, Incorporated (Bannock Paving), in its SIP revision. Bannock Paving operates five portable facilities that operate in attainment and nonattainment areas in the State of Idaho, each of which is a minor source of PM-10.‹SUP›7‹/SUP› The State has submitted the existing construction permits for the Bannock Paving facilities, which were issued under a federally enforceable permit program. The existing permits contain several emission limitations that control PM- 10, such as opacity limits, grain loading standards, and requirements for controlling fugitive emissions, and the State asserts that the level of controls currently imposed on Bannock Paving in these construction permits represents RACT. The State has also advised EPA that it intends to consolidate all of the existing construction permits the State has issued for Bannock Paving into a new operating permit for Bannock Paving and submit the revised permit and a demonstration that the permit constitutes RACT in its SIP revision. EPA defers a final determination on this issue until EPA has received the State's SIP revision, but notes that Bannock Paving is currently subject to controls on PM-10 emissions.
\7\ The State's request to split the nonattainment area states that Bannock Paving is a major stationary source of PM-10. Based on EPA's review of the five State permits for Bannock Paving and conversations with the State, EPA understands that the statement in the State's request was in error and that each of the Bannock Paving facilities is a minor source of PM-10, even when the portable facilities co-locate.
Based on the controls that have been previously imposed by the State on the sources of PM-10 on State lands within the nonattainment area and the discussion by the State of its soon-to-be submitted SIP revision in support of its request to split the nonattainment area, EPA believes that the State has largely completed its PM-10 planning obligations under the Clean Air Act. Indeed, on its portion of the nonattainment area, the State is demonstrating and, in all likelihood will continue to demonstrate, attainment of the PM-10 NAAQS. In light of the information that some sources of PM-10 emissions at the FMC facility are located on State lands, however, the State's SIP revision will also need to address the PM-10 emissions from that portion of the FMC facility located on State lands.
In contrast, the PM-10 requirements for the Tribal portion of the nonattainment area are still under development.‹SUP›8‹/SUP› Because of long-standing concerns about the air quality in the Power-Bannock County PM-10 nonattainment area, EPA has been developing a Federal Implementation Plan (FIP) for the portion of the nonattainment area within the exterior boundary of the Fort Hall Indian Reservation. The plan is being developed in close consultation with the Tribes and with extensive public participation. EPA intends to propose the FIP by the end of January 1999, and to finalize the FIP in the year 2000.
\8\ In developing its PM-10 control strategy and SIP, the State did not seek to impose controls on any sources located on Reservation lands, including fee lands within the exterior boundary of the Reservation, or attempt to demonstrate to EPA that it had authority to promulgate and enforce air controls on Reservation lands.
The Clean Air Act Amendments of 1990 greatly expanded the role of Indian Tribes in implementing the provisions of the Clean Air Act in Indian country. Section 301(d) of the Act authorizes EPA to issue regulations specifying the provisions of the Clean Air Act for which Indian tribes may be treated in the same manner as States. See CAA sections 301(d)(1) and (2). EPA promulgated the final rule under section 301(d) of the Act, entitled ``Indian Tribes: Air Quality Planning and Management,'' on February 12, 1998. 63 FR 7254. The rule is generally referred to as the ``Tribal Authority Rule'' or ``TAR''. The TAR implements the provisions of section 301(d) of the Act to authorize eligible Tribes to implement their own Tribal air programs. This includes a delegation of authority, to Tribes which meet certain requirements and request delegation, to develop, adopt and submit PM-10 nonattainment area Tribal Implementation Plans for lands within the exterior boundary of Indian Reservations, including fee lands. Until promulgation of the TAR in February 1998, however, the Shoshone-Bannock Tribes did not have authority under the Clean Air Act to carry out the PM-10 planning responsibilities for the Tribal portion of the nonattainment area.
The Shoshone-Bannock Tribes have expressed a strong interest in seeking authority under the TAR to regulate sources of air pollution on Tribal land under the Clean Air Act. Based on discussions with the Tribes, however, EPA believes that it will be at least several months before the Tribes will be ready to seek authority under the TAR to assume Clean Air Act planning responsibilities and that, even should they do so, the Tribes intend to build their capacity and seek authority for the various Clean Air Act programs over time, rather than all at once. EPA's understanding is that the Tribes continue to support EPA's efforts to promulgate a PM-10 nonattainment FIP for the Tribal portion of the nonattainment area notwithstanding the recent promulgation of the TAR.
In summary, although the State has largely completed its PM-10 planning responsibilities for the portion of the Power-Bannock Counties PM-10 nonattainment area on State lands, the planning responsibilities for the Tribal portion of the nonattainment area, including the FMC facility, are still under development. 3. Issues Raised by the Tribes and FMC to the State
As discussed above, on May 21, 1998, the Shoshone-Bannock Tribes and FMC submitted to the State of Idaho documents opposing Idaho's request to EPA to split the nonattainment area into two nonattainment areas. Although the Tribes and FMC raised these issues in the State proceeding and will have an opportunity to raise the issues in the public comment period on this proposal, EPA has considered the issues raised by the Tribes and FMC prior to this proposal.
The Tribes and FMC assert that the State failed to follow Idaho law (Idaho Administrative Procedures Act (IDAPA) 16.01.01.578.04) by submitting its request to EPA without first providing public notice and opportunity for comment. FMC further asserts that the State's request failed to comply with other provisions of IDAPA 16.01.01.578, as well, such as the requirement to consider certain factors enumerated in IDAPA 16.01.01.578.02 for designating boundaries, and that public notice and comment was also required by Idaho Code sections 67-5221 and 5222, which govern rulemaking proceedings. The Idaho Attorney General's Office has advised EPA that the State's request to EPA to split the nonattainment area into two nonattainment areas is not subject to IDAPA 16.01.01.578, which is entitled ``Designation of Attainment, Unclassifiable and Nonattainment Areas.'' The Attorney General's office has also advised EPA that the State's request to EPA is not a rulemaking under State law and is thus not subject to Idaho Code sections 67-5221 and 67-5222. EPA defers to the Idaho Attorney General's Office on these interpretations of Idaho law.
[[Page 33603]]
The Tribes and FMC also expressed concern that splitting the area into two PM-10 nonattainment areas at the State-Reservation boundary could result in a less comprehensive approach to air quality planning in the area. EPA was previously aware of the Tribes concern on this issue based on several meetings between the EPA and the Tribes regarding the State's request. EPA has carefully considered this concern, especially the interests of the Shoshone-Bannock Tribes, but continues to believe that the proposed split is in the overall best interest of the area as a whole. The State has largely completed its PM-10 planning requirements for the area. Therefore, EPA does not believe that splitting the nonattainment area will result in a less comprehensive approach to PM-10 planning for the existing Power-Bannock Counties PM-10 nonattainment area as a whole. If some area in or near the City of Pocatello or the Fort Hall Indian Reservation is later identified as a nonattainment area for PM-2.5, EPA will consider at the time of such identification whether, based on air quality data, planning and control considerations, or other air quality-related considerations, the planning requirements for PM-2.5 are best carried out by having a single nonattainment area or having two nonattainment areas divided at the State-Reservation boundary or in some other way.
In addition to its contention that the State failed to comply with State requirements for public notice and opportunity for public comment, FMC further contends that the State failed to comply with the Clean Air Act in making its request to EPA. FMC argues that sections 110(a)(2) and 110(l) of the CAA also require that the State's request to EPA be subject to public notice and comment before submission to EPA. EPA disagrees. Sections 110(a)(2) and 110(l) of the CAA require a State to provide public notice and comment at the State level for State Implementation Plans (SIPs) and SIP revisions. The State's request to EPA to split the Power-Bannock Counties PM-10 nonattainment area is not a SIP or SIP revision, and is therefore not subject to the requirements of section 110 of the CAA. FMC further argues that the State's request is incomplete as a matter of federal law because it does not address the factors enumerated in section 107(d)(3)(E) of the CAA. That section, however, by its terms applies only to requests to redesignation of an area from nonattainment to attainment. The State has not requested that the portion of the Power-Bannock Counties PM-10 nonattainment area located on State lands be redesignated from nonattainment to attainment. As stated above, the proposed Portneuf Valley PM-10 nonattainment area will retain its classification as a moderate PM-10 nonattainment area as a result of this proposed action. Therefore, section 107(d)(3)(E) is inapplicable to the State's request and EPA's proposed action. Finally, FMC asserts that splitting the nonattainment area into two nonattainment areas is inconsistent with section 107(d)(1) of the CAA absent a showing that ``other sources in the area are not collectively causing or contributing to a violation of the NAAQS.'' As stated above, based on information currently available to EPA, EPA believes the State has shown that sources located on State lands are not causing or contributing to the violations of the PM-10 NAAQS that have been recorded on the Tribal monitors. Therefore, EPA believes that splitting the Power-Bannock Counties PM-10 nonattainment areas into two nonattainment areas at the State-Reservation boundary is consistent with section 107(d)(1) of the CAA.
FMC also asserts that a portion of the FMC facility is located on State lands. As discussed above, EPA has considered the impact of this fact on the State's request, and continues to believe it is appropriate to split the nonattainment area at the State-Reservation boundary. Based on the fact that more of the FMC facility is located on State lands than was previously understood by EPA, however, EPA specifically invites comment on whether, as an alternative proposal, it would be appropriate to split the current Power-Bannock Counties PM-10 nonattainment area at the State-Reservation boundary, except to include in the proposed Fort Hall PM-10 nonattainment area that portion of the FMC facility located within State lands. 4. Summary
Based on the information provided by the State in its request and other information available to EPA, EPA proposes to grant the State's request to split the Power-Bannock Counties PM-10 nonattainment area into two nonattainment areas along the State-Reservation boundary. The monitors located on State lands have not registered a violation or even an exceedence of the PM-10 NAAQS for more than five years. In addition, modeling and monitoring information shows that sources on State lands within the nonattainment area are not contributing to the exceedences of the PM-10 NAAQS that have been recorded on the Tribal monitors. Finally, the State has imposed controls on major sources of PM-10 within the State portion of the nonattainment area and the monitors sited on State lands have shown a general decline in the ambient PM-10 values recorded since the State first imposed these controls. In contrast, the monitors situated on Tribal lands have recorded numerous exceedences of the PM-10 NAAQS since they began operation in 1996, and EPA has not yet completed rulemaking action that would impose controls on the major sources of PM-10 in the Tribal portion of the nonattainment area. EPA therefore believes that air quality data, planning and control considerations, and other air quality-related information support dividing the current Power-Bannock Counties PM-10 nonattainment area into two separate PM-10 nonattainment areas at the State-Reservation boundary, as requested by the State.
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Implications of this Proposed Action
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Area Classifications and Designations
If EPA takes final action on this proposal, the current Power- Bannock Counties PM-10 nonattainment area would be split into two nonattainment areas that together cover the identical geographic area of the current nonattainment area. The revised areas would be divided at the boundary between State lands and the Fort Hall Indian Reservation, with one revised area, to be referred to as the ``Portneuf Valley PM-10 nonattainment area,'' comprised of State lands and the other revised area, referred to as the ``Fort Hall PM-10 nonattainment area,'' comprised of lands within the exterior boundary of the Fort Hall Indian Reservation.
The table below indicates how EPA is proposing to revise the PM-10 designation for the current Power-Bannock Counties PM-10 nonattainment area, for both Idaho and the Fort Hall Indian Reservation in 40 CFR section 81.313.
[[Page 33604]]
Part 81.313--PM-10
Designation
Classification
Designated area
--------------------------------------------------------------------------------------------------------------- Date
Type
Date
ype
Idaho................................... ........... Nonattainment............................ ........... 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\ of 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....
Fort Hall Indian Reservation.......... ........... Nonattainment............................ ........... 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...............
Both the Portneuf Valley PM-10 nonattainment area and the Fort Hall PM-10 nonattainment area would retain nonattainment designations as PM- 10 nonattainment areas as a result of this proposed action. In a concurrent notice of proposed rulemaking published today, however, EPA is proposing to make a finding that the proposed ``Fort Hall PM-10 nonattainment area'' has failed to attain the PM-10 NAAQS by the applicable attainment date of December 31, 1996. If EPA makes a final determination that the proposed ``Fort Hall PM-10 nonattainment area'' has failed to attain the standard, that area would be reclassified as a serious PM-10 nonattainment area by operation of law under section 188(b) of the Act, whereas the Portneuf PM-10 nonattainment area would remain classified as a moderate area.
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New and Revised NAAQS for Particulate Matter
On July 18, 1997, EPA promulgated revisions to both the annual and the 24-hour PM-10 standards and also established two new standards for particulate matter, both of which apply only to particulate matter equal to or less than 2.5 microns in diameter (PM-2.5). See 62 FR 38651. The revised standards became effective on September 16, 1997. Although the revised suite of particulate matter standards reflects an overall strengthening of the regulatory standards for particulate matter, the revised 24-hour PM-10 standard, by itself, reflects a relaxation of that standard. In the preamble to the final rule setting the new and revised particulate matter standards, EPA stated that the pre-existing PM-10 standards would remain in effect for a period of time after the effective date of the new standard to ensure a smooth transition to the new standards. 62 FR 38701.
Based on the transition policy announced by EPA in the preamble to the final rule setting the new and revised particulate standards, if EPA takes final action on its proposal to split the Power-Bannock Counties PM-10 nonattainment area, the existing PM-10 standards will ultimately be revoked in the two resulting nonattainment areas at different times. Because the monitors located on State lands showed attainment of the pre-existing PM-10 standard at the time promulgation of the revised PM-10 standards became effective, the pre-existing PM-10 standard would continue to apply in the proposed Portneuf Valley PM-10 nonattainment area until such time as EPA approves the control measures that have been adopted and implemented at the State level to bring the area into attainment with the pre-existing PM-10 NAAQS, and the State of Idaho has an approved SIP under section 110 of the Act for purposes of implementing the revised particulate matter standards. See 62 FR 38701. The monitors in the Tribal portion of the nonattainment area, however, did not show attainment of the pre-existing PM-10 standard at the time promulgation of the revised PM-10 NAAQS became effective. Therefore, the pre-existing PM-10 NAAQS would continue to apply in the proposed Fort Hall PM-10 nonattainment area until EPA has completed its rulemaking under section 172(e) of the Act to prevent backsliding in those areas that had not attained the pre-existing PM-10 standard as of the date the relaxed PM-10 standard became effective. See 62 FR 39701. The rule promulgated under section 172(e) must require controls in the Fort Hall PM-10 nonattainment area, that are ``not less stringent than the controls applicable to areas designated nonattainment before the relaxation of the 24-hour PM-10 standard.'' EPA is also in the process of drafting a Federal Implementation Plan for the proposed Fort Hall PM-10 nonattainment area and expects that such FIP will meet the requirements promulgated by EPA under section 172(e).
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Consultation With the Shoshone-Bannock Tribes
As discussed above, EPA consulted with the Shoshone-Bannock Tribes prior to making this proposal. In particular, as discussed above, EPA is aware that the Tribes are concerned that splitting the area into two PM-10 nonattainment areas at the State-Reservation boundary could result in a less comprehensive approach to air quality planning in the area. As also discussed above, EPA has carefully considered the Tribes concerns but believes that the proposed split is in the overall best interest of the area as a whole because the State has largely completed its PM-10 planning requirements for the area. Therefore, EPA does not believe that splitting the nonattainment area will result in a less comprehensive approach to PM-10 planning for the existing Power-Bannock Counties PM-10 nonattainment area as a whole. In this regard, EPA would like to emphasize that until EPA promulgated the TAR in February of 1998, the Tribes did not have authority under the Clean Air Act
[[Page 33605]]
to address the PM-10 planning requirements for the Reservation portion of the nonattainment area. EPA will carefully consider any additional comments or concerns raised by the Tribes during the public comment period on this action, including the Tribes preference for the name of the nonattainment area located within the Fort Hall Indian Reservation.
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Administrative Requirements
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Executive Order (E.O.) 12866
Under E.O. 12866 (58 FR 51735 (October 4, 1993)), EPA is required to determine whether regulatory actions are significant and therefore should be subject to Office of Management and Budget (OMB) review, economic analysis, and the requirements of the Executive Order. The Executive Order defines a ``significant regulatory action'' as one that is likely to result in a rule that may meet at least one of the four criteria identified in section 3(f), including, under paragraph (1), that the rule may ``have an annual effect on the economy of $100 million or more or adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities.''
The OMB has exempted this action from review under E.O. 12866. In addition, the Agency has determined that EPA's proposal to split the nonattainment area into two nonattainment areas would result in none of the effects identified in section 3(f).
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Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 601 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 economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000.
A regulatory flexibility screening analysis of this proposed action revealed that it would not have a significant adverse economic impact on a substantial number of small entities. A rule revising the designation of an area by creating two separate nonattainment areas under section 107(d)(3) of the CAA does not impose any new requirements on small entities. See Mid-Tex Electric Cooperative, Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985) (agency's certification need only consider rule's impact on entities subject to the requirements of the rule). To the extent that a State, Tribe or EPA must adopt new regulations, based on an area's nonattainment status, EPA will review the effect those actions have on small entities at the time EPA takes action on those regulations. Therefore, pursuant to 5 U.S.C. 605(b), I certify that the approval of the revised designation action proposed today does not have a significant economic impact on a substantial number of small entities within the meaning of those terms for RFA purposes.
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Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act (UMRA), establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under the UMRA, EPA must assess whether various actions undertaken in association with proposed or final regulations include a Federal mandate that may result in estimated costs of $100 million or more to the private sector, or to State, local or tribal governments in the aggregate.
EPA has determined that this proposed action, if promulgated, would not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. A rule revising the designation of an area by creating two separate nonattainment areas under section 107(d)(3) of the CAA does not impose any new requirements on the State, Tribes or the private sector. Redesignation is an action that affects the air quality status of a geographic area or the boundary of the geographic area and does not impose any regulatory requirements on the State, Tribes or private sector. Accordingly, EPA has determined that the proposed action does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or Tribal governments in the aggregate, or to the private sector.
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Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks
Executive Order 13045 (62 FR 19885 (April 23, 1997)) applies to any rule that EPA determines (1) ``economically significant'' as defined under Executive Order 12866, and (2) the environmental health or safety risk addressed by the rule has 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 proposed action is not subject to Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866.
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Request for Public Comments
EPA is, by this document, proposing that the PM-10 designation for the Power-Bannock Counties PM-10 nonattainment area be revised. The EPA is requesting public comments on all aspects of this proposal, including the appropriateness of the proposed designation and the scope of the proposed boundary. Public comments should be submitted to EPA at the address identified above by July 20, 1998.
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, National parks, Wilderness areas.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 10, 1998. Chuck Findley, Acting Regional Administrator, Region 10.
[FR Doc. 98-16403Filed6-18-98; 8:45 am]
BILLING CODE 6560-50-P
