[Federal Register Volume 63, Number 214 (Thursday, November 5, 1998)]
[Rules and Regulations]
[Pages 59722-59732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29663]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[ID-21-7001, ID 22-7002; FRL-6185-8]
Designation of Areas for Air Quality Planning Purposes: State of
Idaho and the Fort Hall Indian Reservation
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: In this action, the Environmental Protection Agency (EPA) is
revising 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, located in Idaho, by
creating two distinct nonattainment areas that together cover the
identical geographic area as the original nonattainment area. The
revised areas are divided at the boundary between State lands and the
Fort Hall Indian Reservation, with one revised area consisting of State
lands and the other revised area consisting of lands within the
exterior boundaries 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 retain PM-
10 nonattainment designation and classification as moderate PM-10
nonattainment areas as a result of this action.
EPA recently established a new standard for particulate matter with
an aerodynamic diameter equal to or less than a nominal 2.5 microns and
also revised the existing PM-10 standards. This rule, however, does not
address these new and revised standards.
EFFECTIVE DATE: December 7, 1998.
ADDRESSES: Information supporting this action can be found in Public
Docket No. [ID-21-7001, ID 22-7002]. The docket is located at EPA,
Region 10, 1200 Sixth Avenue, Seattle WA 98101. The docket may be
inspected from 9:00 a.m. to 4:30 p.m. 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.
I. Background
A portion of Power and Bannock Counties in Idaho was 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). 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).
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\1\ There are two pre-existing PM-10 National Ambient Air
Quality Standards (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 10 microns in diameter (PM-10). The annual PM-10 standard is
attained when the expected annual arithmetic average of the 24-hour
samples for a period of one year does not exceed 50 micrograms per
cubic meter (g/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 g/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.
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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 boundaries 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 boundaries of the Fort Hall Indian Reservation. 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.
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
[[Page 59723]]
of the Power-Bannock Counties PM-10 nonattainment area by splitting the
nonattainment area into two separate nonattainment areas at the
boundary between the Fort Hall Indian Reservation and State lands. 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 Shoshone-
Bannock Tribes (Tribes) have the primary PM-10 planning responsibility
for the Reservation lands 2 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 located on Reservation lands within the
nonattainment area.
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\2\ ``Reservation lands'' as used in this notice refers to all
lands within the exterior boundaries of the Fort Hall Indian
Reservation. EPA believes that this land is ``Indian country'' as
defined under Federal law. See 18 U.S.C. Sec. 1151.
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The State also supported its request with monitoring data which
show 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 on Tribal monitors as a function of wind
direction which shows that exceedences of the PM-10 NAAQS on the Tribal
monitors 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 June 19, 1998, EPA proposed to grant the State's request to
split the Power-Bannock Counties PM-10 nonattainment area into two
nonattainment areas at the State-Reservation boundary. 63 FR 33597. In
a concurrent notice of proposed rulemaking, EPA proposed to make a
finding that the proposed PM-10 nonattainment area within the exterior
boundaries of the Fort Hall Indian Reservation failed to attain the
NAAQS for PM-10 by the applicable attainment date. 63 FR 33605. Based
on a request from a commenter, EPA extended the public comment period
on both proposals for an additional 30 days. 63 FR 41221 (August 3,
1998).
EPA received comments from nine commenters on its proposals. Six of
the commenters--the State of Idaho--Division of Environmental Quality
(IDEQ), the City of Pocatello, Bannock Planning Organization, the
Portneuf Environmental Council (PEC), J.R. Simplot Company, and a
private citizen--supported EPA's proposal to split the Power-Bannock
Counties PM-10 nonattainment area into two nonattainment areas at the
State-Reservation boundary. The comments from PEC also suggest support
for EPA's proposal to make a finding that the proposed PM-10
nonattainment area within the exterior boundaries of the Fort Hall
Indian Reservation failed to attain the PM-10 NAAQS by the applicable
attainment date.
Three commenters--the Shoshone-Bannock Tribes, FMC, and a private
citizen--opposed EPA's proposal to split the existing PM-10
nonattainment area into two PM-10 nonattainment areas at the State-
Reservation boundary. FMC also opposed EPA's proposal to make a finding
that the proposed PM-10 nonattainment area within the exterior
boundaries of the Fort Hall Indian Reservation failed to attain the PM-
10 NAAQS by the applicable attainment date.
After carefully considering the public comments, EPA continues to
believe it is appropriate to split the existing Power-Bannock Counties
PM-10 nonattainment area into two nonattainment areas at the State-
Reservation boundary, with the area comprised of State lands to be
known as the ``Portneuf Valley PM-10 nonattainment area'' and with the
area comprised of Reservation lands to be known as the ``Fort Hall PM-
10 nonattainment area.'' EPA intends to take final action on its
proposal to find that the Fort Hall PM-10 nonattainment area failed to
attain the PM-10 NAAQS by the applicable attainment date in a later
rulemaking.
II. Response to Comments
A. Comments That EPA's Action is Contrary to EPA Policy and
Inconsistent With Prior EPA Actions
All three adverse commenters state that an integrated planning
effort is preferable and 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. The
Tribes also assert that splitting the nonattainment area, in and of
itself, does not advance any air quality improvements and that it would
be a better use of resources to expedite efforts to promulgate rules
and permits for Reservation lands within the nonattainment area.
EPA agrees with the Tribes that promulgating rules to control PM-10
emissions from sources contributing to the nonattainment problem
reflected on the Tribal monitors is a high priority.3 EPA
assures the Tribes and the public that EPA is expending considerable
resources in the development of a Federal Implementation Plan (FIP) for
the Fort Hall PM-10 nonattainment area, which EPA intends to propose by
January 31, 1999.
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\3\ Once EPA received a request from the State of Idaho to split
the nonattainment area, EPA became obligated under section
107(d)(3)(D) to act to approve or deny the State's request. EPA does
not believe that denying the State's request requires any more
resources than approving the State's request.
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EPA also agrees that the ``split'' in and of itself does not
improve air quality. No action to designate an area as attainment or
nonattainment or to determine the appropriate boundaries of an
attainment or nonattainment area under section 107 of the Clean Air Act
improves air quality, in and of itself. Rather, it is the planning
efforts that flow from an area's designation that improves air quality.
Section 107(d)(3) of the Clean Air Act, which provides the authority
for the State's request and EPA's action, includes criteria in addition
to air quality that may be taken into consideration in the revision of
the designation of an area, such as planning and control
considerations. In general, EPA agrees that integrated planning in a
nonattainment area is desirable. In this situation, however, the two
nonattainment areas are at very different places in the planning
process and the planning responsibilities for the two areas rest with
different agencies. As stated in the proposal, the State has largely
completed its planning obligations and monitors on State lands show
attainment of the standard. 63 FR 33599-33601. EPA believes that
splitting the nonattainment area into two nonattainment areas at the
State-Reservation boundary will better enable EPA, the Tribes, and the
State to focus planning efforts on the areas under their respective
authorities, and will therefore, in the long run, advance efforts to
improve air quality. 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. EPA, the Tribes and the State have been working
together on PM-10 planning for the Power-Bannock Counties PM-10
nonattainment area since the early
[[Page 59724]]
1990s. Dividing the area into two nonattainment areas in no way
precludes EPA, the Tribes, and the State from continuing a coordinated
planning effort. EPA fully intends to work closely with the Tribes and
the State in the promulgation of a FIP and a Tribal Implementation Plan
(TIP) for Reservation lands within the nonattainment area and in the
revision and approval of the State's Implementation Plan (SIP). In the
comments submitted by the State, the State indicated its intent to
continue a coordinated planning effort with EPA and the Tribes
notwithstanding the split of the area into two nonattainment areas.
On a related matter, the adverse comment received from the private
citizen expresses concern that splitting the Power-Bannock Counties PM-
10 nonattainment area could impair planning efforts for PM-2.5 or other
pollutants. EPA emphasizes that a coordinated planning effort can be
accomplished notwithstanding that there are two separate nonattainment
areas. In addition, as EPA stated in the proposal, this action relates
only to PM-10. If 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. 63 FR 33603. These same factors will be considered with
respect to other pollutants.
Both the Tribes and FMC state that EPA's action to divide the
Power-Bannock Counties PM-10 nonattainment area is inconsistent with
EPA's longstanding practice and policy regarding the basis for
establishing nonattainment designations (and for determining whether to
redesignate nonattainment areas). The Tribes argue that, in the past,
EPA has made it clear that the dimensions of a nonattainment area are
not limited solely to those locations where violations have been
recorded. FMC similarly claims that EPA's practice has been to
``establish nonattainment areas based on the total contribution of
various sources to ambient air pollution in an entire airshed and not
simply on the presence or absence of exceedences at individual
monitoring sites or the presence or absence of sources in a particular
location.'' However, while these statements (and the litigation
examples cited by FMC) appear to accurately reflect prior EPA practice
and policy, the commenters' assumption that the proposal to split the
Power/Bannock nonattainment area is inconsistent with that practice and
policy is erroneous mainly because it ignores the ambient air data
cited by EPA in support of its proposed action. EPA's proposal to split
the existing nonattainment area is based on the conclusions it reached
after analyzing the contributions of the various sources, evidence
regarding PM-10 pollution impacts, and relevant ambient air quality
data. Moreover, EPA's proposed action is entirely consistent with
statutory requirements.
Section 107(d)(1)(A)(i) makes clear that an area can be designated
nonattainment if the area does not meet the standard or if the area
contributes to ambient air quality in a nearby area that does not meet
the standard. Thus, an area could be designated as part of a
nonattainment area even if the air quality in the area meets the
applicable standard if sources in that area contribute to ambient air
quality in a nearby area that does not meet the standard. However, that
is not the case here. As demonstrated by the State's request, the State
monitors show attainment of the standard on State lands and that
sources on State lands are not contributing to the violations of the
PM-10 standard that have been recorded on the Tribal portion of the
nonattainment area. In addition, section 107(d)(3)(A), which sets forth
criteria for EPA to consider when revising the designation of an area
on its own motion, states that EPA may initiate such actions ``on the
basis of air quality data, planning and control considerations, or any
other air quality-related considerations the Administrator deems
appropriate.'' EPA believes it would be unreasonable for the Agency not
to consider similar criteria in determining whether to approve or deny
a designation revision request submitted by the Governor of a State
under the provisions of subsection 107(d)(3)(D). That is precisely what
the Agency has done with respect to the air quality data submitted by
Idaho in support of its request to separate the Power-Bannock area into
two distinct nonattainment areas.
To support its claim that EPA is acting contrary to EPA policy and
practice by splitting the nonattainment area, FMC cites three specific
cases in which EPA has rejected proposals to split existing
nonattainment areas into separate areas: Lorain County, Ohio, for
ozone; the San Francisco Bay area for ozone; and Spokane, Washington
for carbon monoxide. The first 2 cases were the subjects of lawsuits:
respectively, State of Ohio v. Ruckelshaus, 776 F.2d 1333 (6th Cir.
1985) and Western Oil & Gas Ass'n v. U.S.E.P.A., 767 F.2d 603 (9th Cir.
1985). There are several important differences between the three cases
cited by FMC and the case at hand. First, in the case of the Power-
Bannock Counties PM-10 nonattainment area, ambient air quality data
provided by the State specifically show that sources of pollution on
State lands do not impact the violations that have been recorded on the
monitors located on Tribal lands. No such showing was made in any of
the three examples cited by FMC. In fact, in the case of Lorain County,
Ohio, FMC acknowledges that the sources in Lorain County were found to
contribute to the nonattainment problem in the greater Cleveland area
even though the monitors in Lorain County showed attainment. The Ninth
Circuit Court of Appeals found similar evidence with respect to the
complaining sources in the case involving the San Francisco Bay area.
In describing the areas where the petitioning sources were located, the
Court stated: ``[I]f treated separately, [these areas] would be
`attainment' areas. The reason is the prevailing winds, which blow from
the west and north toward the south and east, thus carrying emissions
from the parts of the Bay area in which [the plaintiffs] do business
into the part of the area that is clearly `nonattainment' and
contributing to that condition.'' 767 F.2d at 605. And again, in the
case of Spokane, in the documentation cited by FMC, EPA stated that it
was not possible to divide the nonattainment area into two
nonattainment areas under CAA section 107(d)(3)(A)(iv), which
authorizes EPA to make revisions to boundaries, because the area sought
to be eliminated from the nonattainment area in fact contributed to the
nonattainment problem.\4\
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\4\ In the briefing paper cited by FMC, EPA stated: ``CAA
Sec. 107(d)(4)(iv) allows boundary revisions under certain
circumstances. However, it does not allow elimination of any part of
a nonattainment area that would be considered part of the air shed
of the nonattainment area and that contributes to the nonattainment
problem.'' Spokane CO Briefing Report (EPA Region 10), October 14,
1997 (emphasis added). FMC's comments neglected to mention this
important qualification to EPA's position. A copy of the Spokane CO
Briefing Report is in the docket.
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Another important difference is that each of the three cases cited
by FMC involved efforts to divide along county lines or along even
smaller political boundaries areas that are all subject to the relevant
State's jurisdiction. Ultimately, for example, Ohio was
[[Page 59725]]
responsible for the nonattainment planning requirements for Lorain
County being fulfilled, as well as it was for those for the greater
Cleveland area. Under section 110(a)(2)(E)(iii) of the Act, even where
a State relies on a local or regional government or agency for the
implementation of elements of the State implementation plan, the State
has the ultimate responsibility for ensuring adequate implementation of
that plan. In the case of the Power-Bannock Counties PM-10
nonattainment area, however, the State's jurisdiction and CAA planning
responsibilities extend only to the portion of the nonattainment area
on State lands, while the Tribes and EPA are authorized by the CAA to
exercise planning responsibilities for the portion of the nonattainment
area that falls within the exterior boundaries of the Fort Hall Indian
Reservation. Although evidence regarding the lack of pollution
contribution is the key consideration for purposes of this action,
i.e., splitting or revising the existing nonattainment area designation
under section 107(d)(3)(D), this jurisdictional factor, as it relates
to the appropriate authority for air quality management and planning,
is (along with the air quality considerations) an important
consideration in EPA's decision to divide the Power-Bannock Counties
PM-10 nonattainment area into two nonattainment areas along the State-
Reservation boundary. In short, EPA does not agree with the Tribes and
FMC that this action is inconsistent with previous EPA policy and
practice.
The Tribes also claim that EPA's action to split the nonattainment
area is inconsistent with EPA policy because there are several other
PM-10 nonattainment areas that include both State lands and lands
within the exterior boundaries of Indian Reservations that EPA has not
considered splitting. Although this claim is certainly factually true,
it has simply not been an issue because EPA has never received requests
in these other cases from the relevant States or Tribes to divide these
nonattainment areas at the State-Reservation boundary, nor has EPA been
provided with the technical air quality information that would support
splitting any other such PM-10 nonattainment area at the State-
Reservation boundary, as is the case here.
In a similar vein, the Tribes assert that EPA did not split the
Power-Bannock Counties PM-10 nonattainment area at the State-
Reservation boundary in previous years when the State monitors were
recording violations of the PM-10 NAAQS, but there were no recorded
violations of the PM-10 NAAQS on the Reservation lands. Again, neither
the Tribes nor the State had previously submitted a request to EPA to
split the Power-Bannock Counties PM-10 nonattainment area. In addition,
although there were no monitors located on Tribal lands in the late
1980s and early 1990s (and therefore no documented violations of the
PM-10 NAAQS on Reservation lands), when violations were recorded on the
State monitors, modeling conducted at that time predicted significant
violations of the PM-10 NAAQS on Reservation lands in the vicinity of
FMC. In fact, the Tribes' comments acknowledge that violations of the
PM-10 NAAQS on the Reservation were predicted during the early planning
stages for the Power-Bannock Counties PM-10 nonattainment area.
Consequently, while there may not have been actual recorded violations
of the PM-10 NAAQS on Reservation lands due to the absence of monitors
when (and for some time after) the area was initially designated
nonattainment for PM-10, there has always been evidence of pollution
contribution from PM-10 sources on Tribal lands. Thus, it was
appropriate under section 107(d)(4)(B) to include both State and Tribal
lands in the area initially designated nonattainment for PM-10. In
summary, EPA does not believe splitting the Power-Bannock Counties PM-
10 nonattainment area at the State-Reservation boundary is inconsistent
either with the CAA or previous EPA practice or policy. This is true
both with respect to the treatment of the Power-Bannock Counties PM-10
nonattainment area prior to Idaho's recent request, and with respect to
other PM-10 nonattainment areas, including those consisting of both
State and Reservation lands.
The Tribes also express concern that EPA is treating the Tribes as
if they were a subdivision of the State and lack any independent role
with respect to this action. They further state that EPA has failed to
follow EPA's own guidance for acting on matters significantly or
uniquely affecting Indian Tribal governments by not adequately
considering the Tribes' concerns. Although EPA is fully cognizant of,
and believes it has respectfully considered, the Tribes' concerns,
there exist a number of legal, statutory and policy limitations--which
the Agency has shared on various occasions with Tribal
representatives--that constrain approaches and flexibility the Tribes
would have preferred the Agency to pursue. In addition, EPA believes
that a review of the 20-year planning relationship shared by the
Tribes, the State of Idaho and EPA, and cited favorably by the Tribes
in its comments on this action, clearly evinces strong support from EPA
with respect to assertions of sovereignty raised by the Shoshone-
Bannock Tribes in actions related to this area under the Clean Air Act.
For example, EPA has supported the Tribes' sovereignty on occasions
when the State of Idaho has attempted to assert regulatory jurisdiction
over sources located on fee lands within the exterior boundaries of the
Fort Hall Indian Reservation. EPA is also actively working with the
Tribes on a government-to-government basis in the regulation of sources
within Reservation boundaries, including FMC. Indeed, the only major
difference of opinion between the Tribes and EPA appears to be the
designation revision decision, since the Tribes continue to assert,
even in comments opposing this action, that they support and intend to
work closely with the Agency's efforts to promulgate a Federal
Implementation Plan addressing the sources located on Reservation
lands. EPA relates to Indian tribes, as a matter of policy and
practice, on a government-to-government basis, but in all actions
required to be taken by the Agency under the CAA, whether those actions
involve States or Tribes, EPA is subject to requirements and
limitations imposed by that statute.
It is also a fact that the existing nonattainment area covers
territory that is subject to two distinct jurisdictions and legal
authorities. Although the Tribes claim that the State's designation
revision request purports to assert authority over lands under Tribal
control, the State is merely availing itself of a regulatory option
provided by the CAA itself with respect to the lands under State
jurisdiction, that is, requesting a revision of the nonattainment area
boundaries under section 107(d)(3)(D). Under that section, EPA must act
on such requests within a specified time, i.e., no later than 18 months
after the request is submitted. The fact that EPA's action in approving
the State's request has consequences that are not favored by the Tribes
does not alter either the State's right to make the request nor EPA's
obligation to take action on the request. EPA is approving the State's
request because it meets specified CAA criteria. EPA understands that
among the Tribes' concerns is that the split action, particularly, will
result in unfair attributions regarding the unresolved nonattainment
problems in the area that they, in fact, never had authority or
responsibility to control. EPA would
[[Page 59726]]
suggest, however, that this designation revision action should more
properly be regarded as simply one component of a combination of
actions the Agency is undertaking in order to establish for the first
time a comprehensive PM-10 planning and implementation program on the
Tribal portion of the Power-Bannock nonattainment area. After careful
consideration of the Tribes' objections to dividing the nonattainment
area, both those expressed by the Tribes before the proposal and in
response to the proposal, it remains EPA's continued belief that, in
seeking to achieve the ultimate air quality goals of the Act, splitting
the existing nonattainment area into two separate nonattainment areas
is in the overall best interest of the area as a whole.
B. Comments That the State's Request and EPA's Action Are Procedurally
Defective
The Tribes and FMC also raise several alleged procedural defects
with the State's request and EPA's proposed action on the State's
request. First, FMC asserts that, as an initial matter, the State's
request to split the area is defective in that the State violated the
requirements of Idaho law as well as Clean Air Act requirements for
notice and public hearing. FMC raised these issues in a petition to the
State under Idaho law and the Tribes also raised these concerns to EPA
and the State prior to EPA's proposal. Because EPA received a copy of
FMC's petition and a copy of a letter from the Tribes to the State
raising the alleged deficiency of the State's request prior to EPA's
proposal on the State's request, EPA responded to the issues raised in
FMC's petition and the Tribes' letter on the validity of the State's
request in the proposal. 63 FR 33602-33603. In FMC's formal comments on
EPA's proposal to split the nonattainment area, FMC comments that EPA's
``conclusory rejection in [the proposal] of the position of FMC and the
Tribes is improper and contrary to the Administrative Procedures Act.''
FMC further asserts it is premature for EPA to take final action before
FMC's concerns have been resolved in the State proceeding. EPA
disagrees on all points.
As an initial matter, it was in no way improper or contrary to the
Administrative Procedures Act for EPA to explain in the proposal to
grant the State's request why EPA believed the issues raised by FMC and
the Tribes to the State regarding the alleged deficiency of the State's
request were without merit. EPA had before it issues relating to the
legal sufficiency of the State's request on which EPA was proposing to
take action. It was clearly appropriate for EPA to explain why EPA
believed the State's request was not deficient. EPA made clear in the
proposal that FMC and the Tribes would have an opportunity to again
raise these issues, as well as any other issues, in response to the
proposal, as required by the Administrative Procedures Act.
Neither FMC nor the Tribes have provided additional information in
their comments on the proposal to show why they believe the State's
request to EPA is deficient as a matter of State and Federal law. Based
on EPA's review of FMC's petition, the State's letter to EPA responding
to FMC's petition, and EPA's review of the State regulations at issue,
EPA agrees with the State that the State was not required to provide
public notice and opportunity to comment on the State's request to EPA
as a matter of State law. EPA also agrees with the State 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 because that
section is entitled ``Designation of Attainment, Unclassifiable and
Nonattainment Areas'' and the State's request to EPA was not a request
to designate an area attainment, unclassifiable, or nonattainment.
Finally, as stated in the proposal, EPA does not believe that the
State's request to EPA was required to go through public notice and
comment before submission to EPA under sections 110(a)(2) and 110(l) of
the CAA because the State's request is not a SIP or SIP revision. In
short, EPA believes that FMC's petition in the State proceeding is
without merit. Under such circumstances, EPA does not believe it is
appropriate to defer action on the State's request until FMC's petition
under Idaho law has been resolved.5
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\5\ FMC has advised Idaho that it intends to drop its challenge
to Idaho's request at the State level once a final settlement of
FMC's alleged violations of the Resource Conservation and Recovery
Act (RCRA) has gone through public comment and been finally entered.
A consent decree between FMC and EPA resolving alleged RCRA
violations at the FMC facility was lodged in the United States
District Court for the District of Idaho on October 16, 1998, and is
currently undergoing a 30 day public comment period.
---------------------------------------------------------------------------
Along with the claim that the State impermissibly invoked section
107(d)(3)(D) over lands subject to Tribal jurisdiction, which EPA
addressed earlier in this notice, the Tribes raise another procedural
defect in their comments, asserting that EPA has ignored section 164(c)
of the Clean Air Act. That section provides that ``Lands within the
exterior boundaries of Federally recognized Indian Tribes may be
redesignated only by the appropriate governing Indian body. . . .'' In
arguing against splitting the nonattainment area, the Tribes assert
that EPA's action is contrary to section 164(c). Section 164, however,
applies only to the redesignation of areas as Class I, Class II, or
Class III for purposes of the Prevention of Significant Deterioration
(PSD) program. The redesignation of an area as Class I, II, or III
under section 164 determines the maximum permitted ambient impact of
any new major source or modified major source constructed in an area
designated as attainment or unclassifiable under section 107. It does
not apply to the designation or redesignation of areas under section
107 of the Act. Moreover, EPA is not changing the designation of
``lands within the exterior boundaries'' of the Fort Hall Indian
Reservation, but rather, separating an existing nonattainment area that
includes both State and Tribal lands at the State-Reservation boundary.
FMC comments that EPA should take into consideration the
redesignation requirements of section 107(d)(3)(E) in deciding whether
to split the Power-Bannock Counties PM-10 nonattainment area into two
separate nonattainment areas. As EPA stated in the proposal, section
107(d)(3)(E), by its terms, applies only to requests to redesignate an
area from nonattainment to attainment. 63 FR 33603. The State has not
requested that the Portneuf Valley PM-10 nonattainment area, as defined
in this notice, be redesignated from nonattainment to attainment, and
the area will retain its classification as a moderate PM-10
nonattainment area as a result of this action. EPA did state in the
proposal, as FMC notes, that the State of Idaho is demonstrating
attainment of the PM-10 standard on State lands. FMC does not show or
even suggest that any portion of the Portneuf Valley PM-10
nonattainment area is currently violating the PM-10 standards. There
are many areas in the country that are in the same position that the
Portneuf Valley PM-10 nonattainment area will be in as a result of this
action: many other areas have attained the standard--which is a factual
determination based on air quality data--but have not yet been
redesignated as ``attainment'' for PM-10 under section 107(d)(3)(E)
because they have either not yet requested redesignation or not yet
completed the planning requirements of section 107(d)(3)(E). EPA does
not believe it is appropriate to hold the Portneuf Valley PM-10
nonattainment area to the requirements of section 107(d)(3)(E) when it
is simply requesting that the
[[Page 59727]]
current nonattainment area be split and is not requesting that the
nonattainment area be redesignated as attainment for PM-10.
FMC also argues that because the split will result in different
treatment for the two nonattainment areas under EPA's transition policy
for PM-2.5, see 63 FR 33604, the State's request to split the
nonattainment area is, in essence, a SIP, and, as FMC argued in its
petition in the State proceeding, should have gone through notice and
public comment under section 110(a)(2) and 110(l) of the Act. There is
simply no basis to argue that the State's request to split the
nonattainment area is a SIP or a SIP revision. The State's request does
not contain and was not intended to impose any control measures and
does not include any other elements of a SIP, such as an emission
inventory or an attainment demonstration. The State submitted a PM-10
nonattainment SIP for the portion of the Power-Bannock Counties PM-10
nonattainment area on State lands in 1993, on which EPA has not yet
taken action. The State's 1993 SIP went through public notice and
comment at the State level. Idaho has advised EPA in its request to
split the nonattainment area that it intends to submit a revision to
the 1993 SIP this year. That SIP revision will also be required to meet
the notice and public comment requirements of section 110(a)(2) and
110(l) of the Act.
C. Comments Relating to the Technical Basis for EPA's Action
The Tribes and the private citizen who submitted adverse comments
contend that the existing Power-Bannock Counties PM-10 nonattainment
area was delineated on the basis of natural topographical and
meteorological characteristics of the air shed, and that there is no
topographical or meteorological basis for splitting the nonattainment
area. The individual commenter further states that the split is
therefore not based on scientific considerations. As stated in the
proposal and in earlier responses to comments, 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). 63 FR 33599. These factors include ``air
quality data, planning and control considerations, or any other air
quality-related considerations the Administrator deems appropriate.''
Thus, although technical and scientific considerations are factors in
determining the designation of an area, they are not the sole factors.
At the time the Power-Bannock Counties PM-10 nonattainment area was
delineated, a State monitor at the sewage treatment plant (STP),
located downwind of the industrial complex and near the Reservation
boundary, recorded violations of the PM-10 standard. There was little
other technical or scientific information upon which to base the
boundary other than best professional judgement. Therefore, the
topographical and general meteorological characteristics of the area
were strong considerations in drawing the boundary. Although there were
no monitors located on Reservation lands at the time the PM-10
nonattainment area was originally established, the Tribes and the State
of Idaho provided comments to EPA requesting that the nonattainment
area be established to include the major sources of particulate matter
that were thought to contribute to the PM-10 exceedences, including FMC
and Simplot at the industrial complex. 61 FR 29667, 29668 (June 12,
1996); 56 FR 37654, 37658 (August 8, 1991). In short, the boundary was
determined based on considerations of where air quality did not meet or
was not believed to meet the PM-10 standard and the location of sources
thought to contribute to air quality that did not meet the standard or
was not believed to meet the standard. Neither the State nor the Tribes
requested at the time the Power-Bannock Counties PM-10 nonattainment
area was first delineated that the nonattainment area be divided at the
State-Reservation boundary. 61 FR 29668; 56 FR 37658. In fact, at the
time the boundary deliberations were ongoing, the State was regulating
FMC, which was located on fee lands within the Reservation, under a
Memorandum of Agreement with the Tribes. Therefore, EPA did not
consider then whether, apart from technical air quality considerations,
jurisdictional considerations should play a role in establishing the
boundary of the nonattainment area.
Several important factors have changed since that time. First, the
State monitors now show attainment of the standard and the Tribal
monitors, which were installed in 1995 and 1996 in areas where modeling
had predicted maximum PM-10 concentrations, have recorded violations of
the PM-10 standard. Second, the technical and scientific understanding
of the sources and their contribution to PM-10 violations in the area
has increased significantly. EPA has a better understanding of
meteorology in the area and how it affects the continuing violations of
the PM-10 standard that have been recorded on the Tribal monitors.
Based on information available to EPA, it appears that, due to the
predominant wind direction, PM-10 emissions from FMC, located on the
Reservation, are the primary, if not sole, cause of the continuing
violations that have been recorded. Finally, the State has largely
completed the PM-10 planning and control process for the sources under
its authority, whereas the planning and control process for the sources
on Reservation lands is still under development. All these factors
support EPA's decision to grant the State's request to split the
nonattainment area into two nonattainment areas. Although EPA agrees
that the decision to split the area is not based on topographical
features of the area, EPA disagrees that the decision to split the area
is not based on scientific or meteorological considerations. The air
quality data recorded on the State and Tribal monitors as well as the
pollution windroses showing that State sources do not cause the
violations of the standard on the Tribal monitors constitute the
scientific and meteorological considerations underlying EPA's action.
Also relevant is the fact (which the State acknowledges) that the two
areas are subject to differing jurisdictions, an important planning and
control consideration that EPA believes is an appropriate factor to
consider under the Act.
FMC asserts that the Tribal monitors do not document a violation of
the 24-hour PM-10 NAAQS because the Tribal monitors had collected less
than three years of data as of the attainment date of December 31,
1996, and because the existing data does not ``unambiguously show
nonattainment,'' a condition for reliance on less than three years of
data. In support of its argument that the Tribal monitors do not
``unambiguously show nonattainment'' of the 24-hour PM-10 standard, FMC
asserts that the placement of the Tribal monitors raises several
technical and legal issues regarding the siting and reliability of the
data relied on by EPA in the proposal. Although FMC provides few
specifics to support this charge, the company argues that one of the
Tribal monitors is on a highway right-of-way, and thus subject to undue
influence from vehicle traffic, and that another Tribal monitor is
located on FMC land which is subject to institutional restrictions on
development and public use.
As an initial matter, EPA is not, in this notice, making a
determination of
[[Page 59728]]
whether or not the Fort Hall PM-10 nonattainment area is in violation
of the PM-10 NAAQS. For purposes of EPA's decision to split the
nonattainment area, there is no legal requirement that the air quality
data considered by EPA establish a violation of the PM-10 NAAQS. The
difference in air quality between the Reservation and State lands was
one factor considered by EPA, not the sole factor. EPA nonetheless
disagrees with FMC's suggestion that the siting of the Tribal monitors
is improper and that the data are unreliable. With respect to FMC's
assertion that one Tribal monitor is located on a highway right-of-way
and is subject to undue influence from vehicle traffic, it is important
to note that FMC does not argue that the monitor does not meet the EPA
siting criteria of 40 CFR part 58, appendix E. EPA disagrees that this
monitor (referred to as the ``Sho-Ban site'') is unduly influenced by
vehicle traffic. The magnitude of emissions from paved highways is a
function of several factors including vehicle speed, vehicle weight,
silt loading on the roadway, number of vehicles, and emissions from the
vehicles themselves. This is not a major roadway, but rather a frontage
road. Thus, there are relatively few vehicles passing along this
section of roadway and vehicle speeds are low. EPA believes that
vehicular emissions from this section of road are minimal and do not
unduly influence ambient levels of PM-10. In addition, another Tribal
monitor (referred to as the ``primary site'') that has recorded
numerous exceedences of the PM-10 standard is located in a similar
orientation vis-a-vis the frontage road as the Sho-Ban site (across the
frontage road from FMC and near the road). If, as FMC asserts, the Sho-
Ban monitor is unduly influenced by road dust, one would also expect to
see exceedences on the same day and of similar magnitude at the primary
site. This is not the case. On only a few occasions have exceedences
been recorded at the primary site and the Sho-Ban site on the same
days. Instead, exceedences on both of these monitors, as well as on the
third Tribal monitor, are closely correlated with the wind direction
blowing from FMC sources toward the monitors.
With respect to FMC's assertion that the primary site is located
``on lands owned and controlled by FMC which are subject to specific
restrictions on development and public use, although it is not clear
from FMC's comment, FMC may be implying that the monitor does not
measure ambient air. ``Ambient air'' for NAAQS purposes is defined as
``that portion of the atmosphere, external to buildings, to which the
general public has access.'' 40 CFR 50.1(e). EPA notes that, at the
time the monitor was established and to this day, access to the
vicinity of the monitor has been in no way restricted by a
fence.6 The primary site is located in an area external to
buildings, to which the general public has access. That FMC has the
legal right to restrict access to the location of the monitor is
irrelevant. In short, there is no basis for FMC's suggestion that the
monitors or data are invalid.
---------------------------------------------------------------------------
\6\ Access to the monitor itself is, of course, restricted by a
15 by 10 foot chain-link fence to guard against vandalism and
tampering.
---------------------------------------------------------------------------
FMC argues that the attainment status of all or part of the Power-
Bannock Counties PM-10 nonattainment area is moot because FMC intends
to install additional controls on its facility. FMC notes that EPA and
FMC are in the process of negotiating a settlement to resolve
violations of the Resource Conservation and Recovery Act and that, as
part of those discussions, FMC has committed to installing new emission
controls and reconfiguring various processes to achieve significant PM-
10 emission reductions at the facility. In fact, since FMC submitted
its comments, a consent decree between FMC and EPA resolving alleged
RCRA violations at the FMC facility was lodged in the United States
District Court for the District of Idaho on October 16, 1998, and is
currently undergoing a 30 day public review and comment period. The
RCRA consent decree, once entered by the Court, will require FMC to pay
a civil penalty of $11,864,800 million for the alleged RCRA violations
and take measures to bring the FMC facility into compliance with RCRA.
The RCRA consent decree also includes 13 ``supplemental environmental
projects'' (referred to as SEPs) designed to reduce PM-10 emissions at
the FMC facility.7 FMC states in its comments on EPA's
proposal to split the nonattainment area that the attainment status of
the area is moot because FMC believes the Reservation will be able to
attain the PM-10 standard once it has completed installation and
implementation of the SEPs under the RCRA consent decree. EPA certainly
supports any PM-10 emission reductions by FMC, whether voluntary or as
part of an enforceable settlement agreement. That the area may attain
the PM-10 NAAQS several years from now after FMC installs completes the
SEPs, however, does not render the attainment status of the area at the
present time a moot issue. In any event, the attainment status of the
State monitors versus the Tribal monitors is only one of the many
factors considered by EPA in deciding to split the nonattainment area.
---------------------------------------------------------------------------
\7\ The RCRA consent decree also includes a SEP whereby FMC
commits $1,650,000 to fund a study of the potential health effects
on residents of the Fort Hall Indian Reservation that may have
resulted from releases of hazardous substances at the FMC facility.
---------------------------------------------------------------------------
FMC also contends that the State's technical analysis, where it
looked at the ``urban complex'' (the Cities of Pocatello and Chubbuck
and the surrounding urban areas) and the ``industrial complex'' (FMC
and J.R. Simplot) is flawed. FMC asserts that the State's analysis
might support splitting the nonattainment area between the urban
complex and the industrial complex, but not splitting the area within
the industrial complex. FMC misunderstands the two-step analysis
conducted by the State. The State first presented information to
demonstrate that these two separate areas have separate air quality
impacts and sources. Specifically, the modeling information presented
by the State 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 and that there is no evidence of significant
mixing of emissions between the urban complex and the industrial
complex. Had the State stopped here in its analysis, FMC would be
correct in its assertion that there is no basis for splitting the
existing nonattainment area at the State-Reservation boundary. The
State went on to show, however, that sources on State lands within the
industrial complex, namely, Simplot, are effectively controlled and do
not contribute to violations of the PM-10 NAAQS on State or Tribal
lands. EPA agrees with the State that this information supports
splitting the existing nonattainment area at the State-Reservation
boundary.
D. Comments Relating to the Location of the Boundary
In the State's April 16, 1997, request, the State requested that
the Power-Bannock Counties PM-10 nonattainment area be divided at the
boundary between State lands and the Fort Hall Indian Reservation. As
discussed in the proposal, EPA learned after submission of the State's
request that a small portion of the FMC facility is located on State
lands. See 63 FR 3360. In the proposal, EPA considered the fact that
the FMC sources located within the Power-Bannock Counties PM-10
nonattainment area but outside the exterior boundaries of the Fort Hall
Indian Reservation on State lands
[[Page 59729]]
accounted for less than 1% of all of FMC's PM-10 emissions and did not
appear to contribute to the violations that have been recorded on the
Tribal monitors. EPA stated it believed it was appropriate to split the
nonattainment area at the State-Reservation boundary despite this new
information. EPA specifically requested comment, however, on whether it
would be preferable to split the current Power-Bannock Counties PM-10
nonattainment area at the State-Reservation boundary, except to include
in the Fort Hall PM-10 nonattainment area that portion of the FMC
facility located on State lands.
Both the State and FMC commented on this issue. The State advised
EPA it would be comfortable with either approach. FMC stated that it
was equally unhappy with either approach. FMC went on to state that
either approach would necessitate two implementation plans (i.e., a SIP
and a FIP/TIP). EPA disagrees that splitting the nonattainment area,
either along the State-Reservation boundary or including all of the FMC
facility in the Fort Hall nonattainment area, will result in any more
implementation plans than if the area remains as one nonattainment
area. In all events, the State must submit a SIP revision to address
the previous deficiencies in the State's 1993 PM-10 SIP covering State
lands. The State's plan must address that portion of the FMC facility
on State lands, regardless of whether that portion of the FMC facility
is located in the Power-Bannock Counties PM-10 nonattainment area, the
Fort Hall PM-10 nonattainment area, or the Portneuf Valley PM-10
nonattainment area. EPA and the Tribes will promulgate Federal
Implementation Plans and Tribal Implementation Plans covering lands
within the exterior boundaries of the Fort Hall Indian Reservation.
After considering the comments of the State and FMC on this issue,
EPA continues to believe it is preferable to split the nonattainment
area along the State-Reservation boundary. Apart from the technical air
quality information, the fact that the existing Power-Bannock Counties
PM-10 nonattainment area encompasses two regulatory jurisdictions is a
major additional reason why EPA has decided to grant the State's
request to split the nonattaiment area. EPA therefore believes it is
more appropriate to split the nonattainment areas in a manner that
respects this jurisdictional distinction.
III. Final Action
By this action, the existing Power-Bannock Counties PM-10
nonattainment area is divided into two nonattainment areas that
together cover the identical geographic area of the existing
nonattainment area. The revised areas will be divided at the boundary
between State lands and the Fort Hall Indian Reservation, with one
revised area, referred to as the ``Portneuf Valley PM-10 nonattainment
area,'' consisting of State lands, and the other revised area, referred
to as the ``Fort Hall PM-10 nonattainment area,'' consisting of lands
within the exterior boundaries of the Fort Hall Indian Reservation.
Both the Portneuf Valley PM-10 nonattainment area and the Fort Hall PM-
10 nonattainment area will retain designations as PM-10 nonattainment
areas and a classification of moderate as a result of this action.
IV. Administrative Requirements
A. Executive Order (E.O.) 12866
Under Executive Order 12866, 58 FR 51735 (October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may: (1) 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; (2) create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
The OMB has exempted this action from review under E.O. 12866. In
addition, the Agency has determined that an action revising the
designation of an area by creating two separate nonattainment areas
under section 107(d)(3) of the CAA results in none of the effects
identified in E.O. 12866 as constituting a significant regulatory
action. The revised designations together cover the same geographic
area and the same sources as the original designation and the
classification of the areas remains unchanged by this action.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. Sec. 601 et
seq., EPA must prepare a regulatory flexibility analysis assessing the
impact of any proposed or final rule on small entities unless EPA
certifies that the rule will not have a significant economic impact on
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 of this action revealed that it would not have a
significant adverse economic impact on a substantial number of small
entities. An action revising the designation of an area by creating two
separate nonattainment areas under section 107(d)(3) of the CAA is an
action affects only the boundary of the geographic area. The revised
designations together cover the same geographic area and the same
sources as the original designation and the classification of the areas
remains unchanged by this action. Therefore, this action 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), EPA certifies that today's action does not have a
significant economic impact on a substantial number of small entities
within the meaning of those terms for RFA purposes.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 04-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, when EPA promulgates ``any general notice of proposed
rulemaking that is likely to result in promulgation of any rule that
includes any Federal mandate that may result in the expenditures by
State, local, and Tribal governments, in the aggregate, or by the
private sector, of $100 million or more'' in any one year. A ``Federal
mandate'' is defined, under section 101 of UMRA,
[[Page 59730]]
as a provision that ``would impose an enforceable duty'' upon the
private sector or State, local, or Tribal governments,'' with certain
exceptions not here relevant. Under section 203 of UMRA, EPA must
develop a small government agency plan before EPA ``establish[es] any
regulatory requirements that might significantly or uniquely affect
small governments.'' Under section 204 of UMRA, EPA is required to
develop a process to facilitate input by elected officers of State,
local, and Tribal governments for EPA's ``regulatory proposals'' that
contain significant Federal intergovernmental mandates. Under section
205 of UMRA, before EPA promulgates ``any rule for which a written
statement is required under [UMRA section] 202,'' EPA must identify and
consider a reasonable number of regulatory alternatives and either
adopt the least costly, most cost-effective or least burdensome
alternative that achieves the objectives of the rule, or explain why a
different alternative was selected.
EPA has determined that this action does not include a Federal
mandate that may result in the expenditures by State, local, and Tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any one year. An action revising the designation of
an area by creating two separate nonattainment areas under section
107(d)(3) of the CAA is an action affects only the boundary of the
geographic area. The revised designations together cover the same
geographic area and the same sources as the original designation and
the classification of the areas remains unchanged by this action.
Therefore, this action does not impose any new requirements on the
State of Idaho, the Shoshone-Bannock Tribes, or the private sector.
Accordingly, EPA has determined that this 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. Consequently, sections 202, 204, and 205 of UMRA
do not apply to today's action, and EPA is therefore not required to
and has not taken any actions to meet the requirements of these
sections of UMRA. With respect to section 203 of UMRA, EPA has
concluded that this action includes no regulatory requirements that
will significantly or uniquely affect small governments, because it
imposes no requirements on them. Nevertheless, during the development
of the proposal for this action, EPA held several meetings with
representatives of the Shoshone-Bannock Tribes to discuss the
requirements of, and receive input regarding, this action.
D. Submission to Congress and the General Accounting Office
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1966, 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).
E. 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 (1) is determined to be ``economically significant'' as that
term is defined in E.O. 12866, and (2) concerns an environmental health
or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final action is not subject to E.O. 13045 because it is not an
economically significant rule as defined by E.O. 12866. In addition, it
does not involve decisions based on environmental health or safety
risks because these decisions were made at the time EPA promulgated the
PM-10 NAAQS. Today's action does not change the health standard set by
the NAAQS.
F. Executive Order 12875: Enhancing the Intergovernmental Partnership
Under Executive Order 12875, 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 action does not create a mandate on State, local or tribal
governments and does not impose any enforceable duties on these
entities. An action revising the designation of an area by creating two
separate nonattainment areas under section 107(d)(3) of the CAA is an
action affects only the boundary of the geographic area and does not
impose any regulatory requirements. The revised designations together
cover the same geographic area and the same sources as the original
designation and the classification of the areas remains unchanged by
this action. Accordingly, the requirements of section 1(a) of Executive
Order 12875 do not apply to this rule.
G. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, 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 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.''
[[Page 59731]]
Today's action does not impose substantial direct compliance costs
on the communities of Indian tribal governments. An action revising the
designation of an area by creating two separate nonattainment areas
under section 107(d)(3) of the CAA is an action affects only the
boundary of the geographic area and does not impose any regulatory
requirements. The revised designations together cover the same
geographic area and the same sources as the original designation and
the classification of the areas remains unchanged by this action.
Accordingly, the requirements of section 3(b) of Executive Order 13084
do not apply to this rule. In taking this action, EPA consulted with
representatives of the Shoshone-Bannock Tribes to permit them to have
meaningful and timely input into its development. Prior to issuing the
proposal to split the Power-Bannock Counties PM-10 nonattainment area,
EPA met on three occasions with representatives of the Shoshone-Bannock
Tribes to discuss the basis for and consequences of splitting the
nonattainment area and to hear the Tribe's concerns with splitting the
nonattainment area. EPA also had several telephone conferences with
representatives of the Shoshone-Bannock Tribes to learn of the Tribes'
concerns prior to the proposal. In addition, EPA provided public notice
and an opportunity for comment on EPA's proposal to split the Power-
Bannock Counties PM-10 nonattainment area a 30 day prior to this
action. The Tribes' concerns and EPA's response to those concerns are
discussed in the proposal, 63 FR 33602-33603, and in Section II of this
notice.
H. National Technology Transfer and Advancement Act of 1995 (NTTAA)
Section 12(d) of NTTAA, Pub. L. No. 104-113, Section 12(d) (15
U.S.C. 272 note) directs EPA to use voluntary consensus standards in
its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, business practices) that are developed or adopted
by voluntary consensus standards bodies. The NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary standards.
An action revising the designation of an area by creating two
separate nonattainment areas under section 107(d)(3) of the CAA does
not establish technical standards. Therefore, this action is not
subject to the NTTAA.
I. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by January 4, 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 in 40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: October 30, 1998.
Chuck Clarke,
Regional Administrator, Region 10.
PART 81--[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. In Sec. 81.313, the table entitled ``Idaho--PM-10'' is amended
by revising the entry for ``Power-Bannock Counties, part of:
(Pocatello)'' to read as follows:
Sec. 81.313 Idaho.
* * * * *
Idaho--PM-10
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area -------------------------------------------------------------------------------
Date Type Date Type
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
Power-Bannock Counties, part of:
(Pocatello):
State Lands
Portneuf Valley Area.... 11/15/90 Nonattainment..................... 11/15/90 Moderate.
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.
Power-Bannock Counties, part of:
(Pocatello):
Fort Hall Indian 11/15/90 Nonattainment..................... 11/15/90 Moderate.
Reservation.
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.
* * * * * *
*
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[[Page 59732]]
[FR Doc.98-29663 Filed 11-4-98; 8:45 am]
BILLING CODE 6560-50-P
