[Federal Register Volume 64, Number 48 (Friday, March 12, 1999)]
[Rules and Regulations]
[Pages 12257-12265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5380]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[ID23-7003; FRL-6237-9]
Determination That Pre-existing National Ambient Air Quality
Standards for PM-10 No Longer Apply to Ada County/Boise; State of Idaho
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) has determined that
the national ambient air quality standards (NAAQS) for particulate
matter with an aerodynamic diameter less than or equal to a nominal 10
micrometers (PM-10) that existed before September 16, 1997, shall no
longer apply to the Northern Ada County/Boise, Idaho area and EPA is
revoking the nonattainment designation associated with those standards.
The State of Idaho has satisfied the requirements of the Clean Air Act
(CAA) as well as EPA's regulations and Guidance for Implementing the 1-
Hour Ozone and Pre-existing PM-10 NAAQS dated December 29, 1997.
DATES: Effective March 12, 1999.
ADDRESSES: Copies of the State's request and other information
supporting this action are available for inspection during normal
business hours at the following locations: EPA, Office of Air Quality
(OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101, and State of
Idaho, Division of Environmental Quality, 1410 N. Hilton, Boise, Idaho
83720.
FOR FURTHER INFORMATION CONTACT: Rindy Ramos, EPA, Office of Air
Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington, 98101, (206)
553-1743.
SUPPLEMENTARY INFORMATION:
I. Background
On July 18, 1997, EPA revised the primary and secondary NAAQS for
particulate matter (PM) by establishing annual and 24-hour standards
for particulate matter with an aerodynamic diameter less than or equal
to a nominal 2.5 micrometers (PM-2.5) and by changing the form of the
existing 24-hour PM-10 standard. The existing annual PM-10 standard was
retained; however, for the revised PM NAAQS, the requirement to correct
the pressure and temperature of measured concentrations to standard
reference conditions was removed. As noted in the preamble to the final
rule promulgating the revised PM NAAQS, those revisions may potentially
affect the effective stringency of the annual standard. These new
standards became effective September 16, 1997. See 61 FR 65638 (Dec.
13, 1996) and 62 FR 38652 (July 18, 1997).
EPA has developed guidance to ensure that momentum is maintained by
States in their current air programs while moving toward developing
their plans for implementing the new NAAQS. This document entitled
Guidance for Implementing the 1-Hour Ozone and Pre-Existing PM10 NAAQS,
dated December 29, 1997, also reflects a July 16, 1997, memorandum
issued to Administrator Browner by President Clinton on implementation
of the new standards. An additional document entitled Re-Issue of the
Early Planning Guidance for the Revised Ozone and Particulate Matter
(PM) National Ambient Air Quality Standards (NAAQS) dated June 16, 1998
outlines a process for States to review the adequacy of their existing
CAA section 110 state implementation plans (SIPs) for purposes of
implementing the new PM standards.
To provide for an effective transition from the pre-existing to the
revised PM NAAQS, the effective date of the revocation of the PM-10
NAAQS in effect before September 16, 1997, was delayed so that the
existing standards and associated provisions would continue to apply
for an interim period. See 62 FR 38701. EPA, therefore, developed
interim implementation guidance that provides for the continued
applicability of the pre-existing PM-10 NAAQS until certain criteria
are met. The duration of the interim period depends on when the area in
question has met the requirements for revocation. Specifically, in 40
CFR 50.6(d), and the
[[Page 12258]]
guidance document entitled, Guidance for Implementing the 1-Hour Ozone
and Pre-Existing PM10 NAAQS, dated December 29, 1997, EPA outlines the
necessary requirements that areas, which are attaining the pre-existing
PM-10 NAAQS at promulgation of the new standards, must meet in order to
have the pre-existing PM-10 NAAQS revoked. Those documents outline
three conditions for revocation of the pre-existing PM-10 NAAQS which
are applicable to the Northern Ada County/Boise, Idaho area: (1) An
area must have 1994-96 air quality data that shows attainment of the
pre-existing PM-10 standard as of the date that the standard was
revised; (2) the State must have an EPA-approved SIP for the area that
includes all control measures that were adopted and implemented at the
State level to meet the pre-existing PM-10 NAAQS; and (3) the State
must have a section 110 SIP for the area that provides adequate
authority and resources to implement the revised PM-10 and the new PM-
2.5 standards. As further explained in the EPA guidance document
entitled, Re-Issue of the Early Planning Guidance for the Revised Ozone
and Particulate Matter (PM) National Ambient Air Quality Standards
(NAAQS), dated June 16, 1998 the EPA believes that, for initial
planning purposes, an adequate section 110 SIP must enable the State to
develop an infrastructure to implement the new PM standards by
identifying and/or establishing the authority and adequate resources
to: (1) Develop an accurate, complete, and comprehensive emissions
inventory; (2) develop, deploy, and operate the PM monitoring network;
and (3) perform modeling. Once a State submits a request for revocation
that meets the conditions described earlier, and certifies that it has
met the requirements stated above, EPA will take action to revoke the
pre-existing PM-10 standards and the designation for the relevant area.
Once EPA takes action on the State's request for revocation, the pre-
existing PM-10 standards and the section 107 PM-10 designation for that
area will no longer apply. This is because the PM-10 standards that are
related to the current section 107 PM-10 designation for the area would
no longer exist.1
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\1\ Section 107(d)(1) of the Act establishes the requirements
for making designations for areas when a NAAQS is promulgated or
revised. These are designations of nonattainment, attainment and
unclassifiable. The provision requires States to make
recommendations to EPA concerning the designation of areas in the
State within 1 year after promulgation of a new or revised NAAQS
(i.e., by July 1998). The EPA is then required to designate areas
across the country no later than 2 years following the promulgation
of the NAAQS. The EPA may extend the time period for making these
designations by up to 1 additional year if the Agency lacks
sufficient information to make the designations in the 2-year
timeframe. Therefore, EPA is required to make area designations in
accordance with the revised PM-10 NAAQS no later than July 2000. As
indicated in EPA guidance, the designations will be based on the
most recent 3 consecutive years of air quality data from Federal
reference or equivalent method monitors.
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On July 24, 1998, the State of Idaho submitted air quality data to
EPA for the years 1994-1996 for the Northern Ada County/Boise
nonattainment area demonstrating that the area met the PM-10 standards
that were in effect prior to September 16, 1997. The submission
included a request that EPA determine that the pre-existing PM-10 NAAQS
no longer apply to that area. Idaho also requested that the CAA section
107 nonattainment area designation for the Northern Ada County/Boise
area be revoked.
EPA evaluated Idaho's request in accordance with the above guidance
and regulation. As a result, on October 26, 1998, EPA published a
Federal Register action proposing to approve Idaho's request to revoke
the PM-10 standard in effect before September 16, 1997 for the Northern
Ada County/Boise area (63 FR 57086). The October 26, 1998, action also
indicated that anyone wishing to comment on EPA's proposed action
should do so by November 25, 1998.
During the comment period, 135 parties commented on the proposed
revocation action. Of the 135 commenters, 123 opposed and 12 supported
EPA's proposed action. A number of additional comments were received
after the comment period closed. There were no comments concerning
EPA's proposal to reformat Idaho's 40 CFR 81.313 table for PM-10
designations to more accurately reflect the designation status of the
areas within each of Idaho's Air Quality Control Regions. EPA has
thoroughly considered the comments in determining the appropriate
action concerning Idaho's request for revocation. A summary of EPA's
review of the comments is presented in the ``Response to Public
Comments'' section below.
EPA is approving Idaho's request that the PM-10 NAAQS that existed
before September 16, 1997, no longer apply to the Northern Ada County/
Boise area, and is revoking the nonattainment designation associated
with those standards. The following is a review of the comments
received on the proposed action.
II. EPA Response To Public Comments:
The following discussion summarizes and responds to the significant
comments which were received concerning the Federal Register document
proposing revocation of the section 107 PM-10 NAAQS for Northern Ada
County/Boise, Idaho published on October 26, 1998 (63 FR 57086).
Comment: A number of commenters claim, generally, that revocation
of the 1987 PM-10 NAAQS, as proposed by EPA, does not satisfy the
criteria in section 107(d)(3)(E) of the CAA for terminating an area's
nonattainment designation, and that nothing in the NAAQS promulgation
notice, which established the revocation criteria, purported to modify
or revise that Section. Specifically, commenters, representing
environmental organizations, state that the Act does not authorize EPA
to treat the revocation request from the Governor of Idaho as being
exempt from the requirements of section 107(d)(3)(E) as a whole and,
thereby, avoid part D requirements, such as conformity. Comments were
also received which state that the area's airshed is already at
capacity for particulate matter, as recent modeling by IDEQ
demonstrates, and EPA has made no finding that ``the improvements in
air quality is due to permanent and enforceable reductions in
emissions'' as required by section 107(d)(3)(E)(iii) of the CAA.
Finally, commenters stated that there is no maintenance plan proposed
by Idaho or approved by EPA as required by sections 107(d)(3)(E)(iv)
and 175A as a prerequisite for removing the nonattainment designation,
and that it appears that Ada County cannot maintain its current
``clean'' air quality.
Response: The EPA's authority for this action is based on the
regulatory provisions adopted when it promulgated the revised PM-10
NAAQS in July 1997. 62 FR 38652. Those regulations, codified in 40 CFR
50.6(d), provide that the pre-existing PM-10 standards will no longer
apply to an area attaining those standards as of September 16, 1997,
once EPA approves a State Implementation Plan (SIP) applicable to the
area containing all PM-10 control measures adopted and implemented by
the State prior to September 16, 1997, and a section 110 SIP
implementing the PM standards published on July 18, 1997. The preamble
to the PM NAAQS revision stated that, ``to provide for an effective
transition'' from the existing to the revised PM-10 NAAQS, the
effective date of the revocation of the PM-10 NAAQS in effect before
September 16, 1997, was delayed so that the pre-existing PM-10 NAAQS,
and associated provisions, ``will continue to apply for
[[Page 12259]]
an interim period'' until the criteria described above are met. 62 FR
38701. The EPA believes that these are the only criteria that may be
applied in this rulemaking, and that they have been satisfied in the
case of the Ada County/Boise, Idaho area. This approach to revocation
of the pre-existing PM-10 standards is also emphasized in the
memorandum from President Clinton to EPA Administrator Browner
outlining a strategy for implementing the revised PM and ozone NAAQS
that was published on the same day as the revised NAAQS. 62 FR 38421,
38428-38429 (July 18, 1997). Additionally, when EPA promulgated the
regulation, on which today's action is based, EPA explicitly stated
that it was not requiring approval of attainment demonstrations or
maintenance plans as a prerequisite to its determination that the pre-
existing PM-10 NAAQS no longer applies. 62 FR 38701. In essence, the
commenters' complaint, properly viewed, does not relate to the action
being taken at this time, but relates to the regulatory provision on
which this action is based. That regulation was promulgated in July
1997 and presented the appropriate opportunity for commenters to raise
these issues. See section 307(b)(1) of the Act. Moreover, EPA is not
bound to follow the provisions of section 107(d)(3)(E) when a NAAQS has
been revised, and the NAAQS on which a nonattainment designation was
based has been replaced by a new NAAQS, the implementation for which
will supersede the implementation of the old NAAQS. Therefore, since
the action being taken by EPA is not based on section 107(d)(3)(E) and
its attendant provisions, which are applicable only when an area is
being redesignated to attainment, it was not necessary for the Agency
to ``modify or revise'' that section, as certain commenters allege. It
is also not necessary for EPA to determine that improvements are due to
permanent and enforceable reductions in emissions. As for the fact that
certain areas will no longer be subject to conformity, that is a
consequence of the conformity provisions of the statute, which make it
applicable only to areas that are designated nonattainment or that have
maintenance plans approved under section 175A. Such a result is not
arbitrary or capricious nor an abuse of discretion on EPA's part. It
should be understood, however, that any areas that, pursuant to
applicable EPA regulations, are determined to violate the revised PM-10
NAAQS will be designated nonattainment for that NAAQS and become
subject to the Act's nonattainment requirements, including conformity,
at that time. This would include areas for which requests for
revocation of the pre-existing PM-10 NAAQS are approved by EPA.
Comment: EPA received many comments stating that the local
meteorological conditions render the last three years of ambient
monitoring data unrepresentative. These comments suggest that the
reason the Northern Ada County area has not had monitored violations of
the PM-10 NAAQS in the past three years is because the area has not
experienced its usual wintertime inversion weather conditions. They
state that a lack of monitored violations in a period during which
critical weather conditions have not occurred is not sufficient
evidence for EPA to conclude that attainment has been reached in the
area. For this reason, commenters question whether the area will be
able to continue to attain the pre-existing PM-10 NAAQS during the
interim period before designations are made for the revised PM-10
standard in July 2000. Commenters further state that the presence of
mobile source emissions, the cumulative impacts of smoke and
particulate matter from agricultural sources, as well as other
particulate matter emissions may cause the Northern Ada County area to
violate the pre-existing NAAQS if revocation of the pre-existing
standard occurs.
Response: As discussed in the preamble to the PM NAAQS revisions of
July 18, 1997, EPA is not requiring an approval of attainment
demonstrations or maintenance plans for the current PM-10 NAAQS. For
the purpose of revoking the pre-existing PM-10 NAAQS, EPA is requiring
that the State has a SIP approved by EPA in place which contains the
PM-10 control measures that were adopted and implemented at the State
level, and which were responsible for bringing the area into attainment
of the pre-existing PM-10 standards. EPA also requires that the State
certify, i.e., provide the necessary information to assure EPA, that
the section 110 SIP for the area contains adequate resources as well as
the legal authority needed to implement the revised PM-10 and the new
PM-2.5 NAAQS. See 40 CFR 50.6(d).
EPA believes that the State of Idaho has met the requirements for
revocation of the pre-existing PM-10 NAAQS, pursuant to 40 CFR 50.6
(d), as well as EPA guidance related to revocation, for the following
reasons: (1) The State has submitted air quality data for 1994-1996
which demonstrates that the area is attaining the pre-existing PM-10
NAAQS that were in effect prior to September 16, 1997. Air quality data
for the area also indicates that the area has not measured an
exceedance of the pre-existing NAAQS during this time period. (The
highest 24-hour value recorded during calendar years 1994 to 1996 was
131 g/m3, which is significantly below the pre-existing
standard of 150 g/m3. The highest annual-average for the area
was 41.2 g/m3 which is below the pre-existing standard of 50
g/m3.); (2) The State has an approved part D, PM-10 SIP in
place for the area (See 59 FR 48582 and 61 FR 27019) which includes all
PM-10 control measures that were adopted and implemented at the State
level to meet the pre-existing PM-10 NAAQS; (3) In Idaho's July 24,
1998, request for revocation, the State provided information
demonstrating to EPA that it has the legal authority and resources in
its current section 110 SIP needed for purposes of implementing the
revised PM-10 NAAQS and the new NAAQS for PM-2.5.
Many commenters believe that the last three years of meteorological
data is not representative of the kinds of weather typically
experienced in the Boise area in the past. EPA believes, however, that
the method for calculating whether an area is violating or attaining
the PM-10 NAAQS considers such variations. Pursuant to 40 CFR part 50,
appendix K, sections 2.1 and 2.2, the 24 hour and the annual standards
for the pre-existing PM-10 standard are attained when the expected
exceedances per year, at each monitoring site in an area, is less than
or equal to one. In the simplest case, the number of expected
exceedances at a given site is determined by recording the number of
exceedances in each calendar year and then averaging them over the
period of the last 3 most recent calendar years. The requirement to
average 3 successive yearly results is designed to account for the
random nature of meteorological conditions that affect the formation
and dispersion of particles in the atmosphere. If, for example, only
one year is considered, the compliance determination may be dependent
on data results for a year with unusually adverse or unusually
favorable weather conditons. Hence, the standard is designed to reduce
the problem of year-to-year variability by averaging 3 years of data.
See 52 FR 24634, 24640 (July 1, 1987).
Moreover, while EPA's revocation policy only requires consideration
of ambient air quality data for the years 1994 through 1996, it is
important to recognize that the Northern Ada County/Boise Area has not
had an exceedance of the pre-existing NAAQS since January 7, 1991, all
the way to the
[[Page 12260]]
present. Additionally, Boise's 1991 attainment plan used worst-case
meteorological data to determine the appropriate PM-10 control measures
for the area. These are the control measures that have been relied on
and implemented in the area, and that have allowed the area to attain
the pre-existing PM-10 NAAQS. Although, EPA agrees that the area's
recent weather characteristics are different from past patterns, EPA
also believes it should be recognized that those differences, i.e., the
lack of severe and prolonged wintertime inversions, have been a fact
for at least eight years now. Consequently, EPA believes that all these
factors provide a sufficient basis to determine, consistent with the
revocation criteria in 40 CFR 50.6(d), that the area has attained the
pre-existing PM-10 standards.
Comment: A number of comments were received regarding the issue of
conformity. Several commenters stated that the State's request, and the
proposed approval of the revocation avoids the conformity requirements
established under section 176(c) of the CAA. Other commenters,
representing environmental organizations, claim that the motor vehicle
emissions budget, that is adopted by the State as part of the SIP and,
they argue, is implemented through the conformity program, is a control
measure that effectively requires motor vehicle emissions in the
nonattainment area to be capped at levels specified in the SIP. The
commenters believe that without conformity the State cannot ensure that
motor vehicle emissions will not increase over time as a result of
population and growth in vehicle miles traveled (VMT). Given this, the
commenters argue that (1) the State cannot satisfy EPA's requirement
that all measures implemented before September 1997 will continue to be
implemented, and (2) EPA cannot find that the remaining measures in the
SIP provide for attainment and maintenance, as required by section 110.
Response: As stated in previous responses, EPA is not requiring
States, under its transition policy, to demonstrate attainment and
maintenance of the PM-10 NAAQS that are being replaced by revised PM-10
NAAQS. Additionally, while EPA agrees with the commenters about the
basic purpose of motor vehicle emission budgets in SIPs, EPA does not
agree with the characterization of the role served by conformity in
relation to those budgets and the SIP in general. EPA believes the
conformity provisions of the Act demonstrate that conformity is a
process which requires the establishment of procedures or techniques by
EPA and States to ensure that emissions-generating activity on the part
of Federal agencies does not undermine the air quality reduction or
attainment goals of the SIP. Section 176(c)(4)(C) of the Act makes this
clear by saying that SIPs must include ``criteria and procedures for
assessing the conformity of any plan, program, or project subject to
the conformity requirements of this subsection.'' Conformity is
demonstrated by showing that the emissions from the Federal action fall
within the emissions budget or emissions reduction targets established
in the SIP. And, until such a showing is made, the Federal action may
not proceed. But, while conformity operates to constrain Federal
activity that is inconsistent with the SIP emissions budgets or
emissions reductions targets, the budgets themselves are established
and enforced through the SIP, not by the conformity program. Therefore,
while the conformity requirements may force adjustments to the SIP in
order to allow a Federal action to proceed, such as requiring the
adoption of offsetting emissions, the conformity program does not
itself directly control emission rates, nor is it the sole determinant
of whether a State can attain or maintain a NAAQS.
Finally, once this final action becomes effective, the pre-existing
PM-10 NAAQS and associated designation for Northern Ada County, in
effect before September 16, 1997, will no longer apply. Hence, at that
time, any requirements of the Act that are associated with those
standards and designation, including conformity requirements, will no
longer have any validity as well.
Comment: Commenters representing several environmental
organizations indicate that the major source preconstruction review
programs, and other control programs of the Act, are tied directly to
area designations and that EPA is not free to ``carve out huge
exemptions that could allow major new sources of PM to be built without
any air quality review because they are located in an area without a
designation for PM.''
Response: EPA agrees that the preconstruction review requirements
of the Act, including the part D nonattainment new source review (NSR)
and prevention of significant deterioration (PSD) requirements, are
tied to the section 107 area designations. However, it is incorrect for
the commenters to conclude that the revocation of area designations for
PM-10 will result in the lack of a permit review for major sources of
PM-10. While it is true that the nonattainment NSR requirements will no
longer apply with respect to PM-10 in an area where the PM-10
nonattainment designation is revoked, certain PSD requirements will
apply instead with respect to PM-10.
It is important to recognize that there are differences in the way
that the two major source preconstruction review programs are tied to
the section 107 area designations. The nonattainment NSR requirements
under part D of the Act are tied directly to the designation of
nonattainment on a pollutant-specific basis. That is, a new source
proposing to locate in a nonattainment area for PM-10, for example,
would be required to undergo nonattainment NSR for emissions of PM-10
emitted in major amounts. The same source would not be subject to
nonattainment NSR for other pollutants unless (1) the area were
designated nonattainment for the pollutant, and (2) the source would
emit the pollutant in major amounts. Under PSD, a proposed source
locating in an area designated attainment or unclassifiable for any
pollutant is subject to review for any pollutant subject to regulation
under the Act which will be emitted in major amounts and for any other
pollutant which will be emitted in significant amounts, as long as the
area is not designated nonattainment for such pollutant. Consequently,
when a proposed source will emit PM-10 in significant amounts in an
area designated attainment for SO2, for example, the source
must undergo PSD review for PM-10 if the source will also emit another
pollutant in major amounts. Since, as a result of this action, the
Northern Ada County/Boise, ID area is not designated nonattainment for
PM-10, PM-10 emissions are subject to certain PSD requirements, even
though the area is currently undesignated with respect to PM-10. This
is EPA's interpretation of the PSD applicability provisions under 40
CFR 51.166(i)(2), (i)(3), and (i)(5), and 40 CFR 52.21(i)(2), (i)(3),
and (i)(5). Since the Northern Ada County/Boise, ID area has existing
designations for the other NAAQS (i.e., other than for particulate
matter), new major sources (of any of those pollutants) that emit PM-10
in significant amounts will be subject to the appropriate PSD
requirements. (See response below.)
Comment: Commenters state that EPA's proposed action fails to
ensure that the Prevention of Significant Deterioration (PSD)
increments for PM-10, along with an accurate baseline, will continue to
apply.
Response: EPA acknowledges that in its notice proposing to revoke
the PM-10 nonattainment area designation for
[[Page 12261]]
the Northern Ada County/Boise area, EPA indicated that the PSD
permitting requirements would continue to apply but did not explain how
it would ensure the implementation of the PM-10 increments in those
areas. Following its proposal, EPA concluded that in the absence of a
designation pursuant to section 107 of the Act, there is no basis for
establishing the baseline date and baseline area in association with
the applicable PSD increment. This arises from the fact that the
existing definitions associated with the PSD increments, as contained
in the PSD regulations in parts 51 and 52 of the Code of Federal
Regulations, explicitly tie the ``baseline dates'' and ``baseline
area'' for the increments to the section 107 area designation on a
pollutant-specific basis. See, e.g., 40 CFR 52.21(b)(14) and (15).
Thus, the comments are correct that, upon revocation of the pre-
existing PM-10 NAAQS and associated nonattainment designation for areas
like the Northern Ada County/Boise area that were designated
nonattainment for PM-10, the PM-10 increments will not apply unless and
until the area is designated attainment or unclassifiable for the
revised PM-10 NAAQS.
EPA understands the commenters' concerns with the inapplicability
of the PM-10 increments to such areas in the period immediately
following revocation of the pre-existing PM-10 NAAQS. (The commenters
referred to ``continuing'' applicability of the increments, but EPA
assumes that their concern applies even for nonattainment areas, like
the Northern Ada County/Boise area, in which the increments did not
apply previously because of the nonattainment designation.) However,
EPA believes that it would not be appropriate to delay revocation of
the pre-existing PM-10 NAAQS, or otherwise attempt to create attainment
or unclassifiable PM-10 designations that would apply to areas like
Boise upon revocation of that NAAQS, in order to trigger applicability
of the PM-10 PSD increments to such areas. EPA will be promulgating
designations for the revised PM-10 NAAQS a little over a year from now.
Those designations will trigger the applicability of appropriate PM-10
permitting requirements, including the PSD increments for areas
designated attainment or unclassifiable for those standards. EPA
believes that the other PSD requirements described in the response
above--e.g., requirements to prevent emissions increases that would
cause or contribute to a NAAQS violation and to apply best available
control technology (BACT) for sources that are major for another
pollutant and emit PM-10 in significant amounts--should be sufficient
to protect air quality in this short interim period between revocation
of the pre-existing PM-10 NAAQS and the promulgation of designations
under the revised PM-10 NAAQS .
Comment: Commenters state that EPA's guidance and transitional
policies do not actually promote their stated objectives and are
inconsistent with the Act and administrative law, and requests that EPA
revamp its national guidance concerning revocation of the 1987-PM-10
NAAQS.
Response: EPA believes that the policies reflected in the
revocation provisions of the 1997 PM NAAQS rule and subsequent guidance
documents do promote EPA's objective of ensuring that ``momentum is
maintained by states in their current air programs while moving toward
developing their plans for implementing the new NAAQS.'' See 63 FR
57087. Under EPA's approach, areas like and including the Northern Ada
County/Boise area will not be able to adopt SIP revisions that would
interfere with meeting the revised PM-10 NAAQS. EPA is requiring that
all control measures which were adopted and implemented and resulted in
attainment of the NAAQS be included in the SIP. Any subsequent attempt
to remove these measures would be subject to all requirements for SIP
revisions. (See section 110(l).) Moreover, as stated above, most major
new stationary source growth will be allowed only if the emissions are
controlled to BACT levels and would not cause or contribute to NAAQS
violations. EPA believes the retention of the SIP control measures that
brought these areas into attainment, and application of these PSD
requirements, is sufficient to maintain momentum in these states'
current programs in the short period until the air quality planning
requirements applicable upon designation for the revised PM-10 NAAQS
are triggered.
Comment: Commenters expressed concern that the proposed revocation
fails to recognize that the action will allow the State to make
decisions for new federally-funded highway projects to proceed, which
will encourage the use of more single occupancy vehicles and result in
an increase of PM-10 emissions, instead of spending money on projects
that would reduce pollution.
Response: EPA recognizes that revoking the pre-existing PM-10
standard and removing the nonattainment designation for the Ada County/
Boise Area, among other things, will allow for federal funding of a
number of highway projects in the area. However, EPA's decision is
based on its determination that the criteria for revocation set forth
in 40 CFR 50.6(d) have been met by the State of Idaho. It should be
kept in mind that, as previously discussed, the current SIP and the
controls it imposes on emission levels for source categories throughout
the area, will remain in place after the standard is revoked and Boise
is no longer designated a nonattainment area for the pre-existing PM-10
standard. Finally, under the Act, it is the State, and not EPA, that
has the primary authority and responsibility to determine how to best
manage and control the air resources within the State, including
decisions on how to address anticipated increases in vehicle emissions.
Comment: Commenters claim that, at the local level, there was
inadequate opportunity, and in some cases the public was discouraged,
even intimidated, from participating or commenting on the request for
revocation. The comments also state that the public was not
sufficiently aware of the revocation request, or the related effects of
the revocation action, in a timely manner, to be able to have a voice
in the debate about the request. It was also said that an Ada Planning
Association (APA) letter, dated November 13, 1998, supporting early
revocation, was approved at an APA executive committee meeting, and not
a meeting of the full APA board, a procedure not authorized under APA
bylaws.
Response: The Agency believes that any deficiencies in the State or
local process should be addressed at the State or local level. The
Agency believes, however, that the comment process it undertook when
considering the State's revocation request did afford meaningful public
review. The action being taken by EPA today is based upon a revocation
request received from Idaho's Division of Environmental Quality (DEQ).
The mode of submission was consistent with similar air quality-related
submissions made by the State of Idaho. The proposal for this action
was published in the Federal Register on October 26, 1998. 63 FR 57086.
EPA's proposed action on this matter served to formally put the public
on notice concerning the revocation request, and also served to invite
public comment. In response to the Federal Register document, EPA
received over 130 comments expressing a variety of viewpoints on all
aspects of the revocation and its effect. Consequently, EPA believes
that its actions and the public response both demonstrate that
[[Page 12262]]
ample opportunity for public comment has been provided, and therefore
EPA will not be reopening the comment period for this action. EPA
appreciates the interest that the public has shown concerning issues
involving air quality in the Northern Ada County/Boise area and
encourages continued involvement in the public process.
Comment: Comments were received expressing medical concerns
regarding the relationship between potential deterioration of PM-10 air
quality and enumerated respiratory illnesses. These comments also cited
recent articles by the American Lung Association concerning increases
in respiratory deaths and diseases, that are attributable, in part, to
elevated PM-10 levels. Based on the modeling forecasts in the Ada
Planning Association's study, the commenters appear to believe that
revocation of the pre-existing PM-10 standards would eliminate existing
protections and result in a de facto worsening of air quality in the
Boise area, particularly if coupled with inversion episodes. Indeed,
they state that the revocation action would be a significant setback
for the protection of human health, environmental air quality, and
quality of life.
Response: EPA agrees that elevated levels of particulate matter are
linked to aggravated respiratory and cardiovascular effects and
contribute to illnesses among the members of the public. Indeed, it is
evidence of this very nature that prompted the Agency to promulgate the
revisions it made to the PM standards. Today's action will result in
the revocation of the pre-existing PM-10 standards, which have been
replaced by new PM standards. Thus, the action being taken today by EPA
is not intended to and does not eliminate the air quality gains made
through implementation of the pre-existing PM-10 NAAQS. To the
contrary, it requires the State to consolidate in its SIP and continue
implementing the control measures that allowed the area to monitor
attainment of those standards. As noted earlier, under EPA's transition
policy it is a pre-condition to revocation that the area demonstrate
with air quality data from 1994-96 that it is currently attaining the
pre-existing PM-10 NAAQS and has a fully-approved SIP in place. Idaho
has satisfied these conditions with respect to the Northern Ada County/
Boise area. The area is implementing and, even after revocation, will
continue to implement its federally-approved part D SIP. Also, the PM-
10 controls associated with the pre-existing NAAQS, that resulted in
air quality data which shows attainment of that NAAQS, will remain in
place. It is EPA's belief that continued implementation and enforcement
of the existing control measures will assure continued protection of
the public health during the transition towards implementation of the
revised PM-10 NAAQS.
Comment: One commenter indicated that the modified standard would
adjust emission levels based on 24-hour averages in lieu of the
instantaneous measurements which are currently employed.
Response: EPA is unclear about what the precise nature of the
commenter's concern is, and does not understand what types of
instantaneous measurements for PM-10 are being referred to by the
commenter. NAAQS PM monitors are not designed for instantaneous
measurements. The pre-existing PM-10 NAAQS, the revised PM-10 NAAQS,
and the new PM-2.5 NAAQS are all based on 24-hour averages. Particulate
matter data is collected for a 24-hour period with EPA-approved
monitors. The collected data is then averaged over that 24-hour period
and compared to the 24-hour PM standard by EPA to make regulatory
determinations.
Comment: Commenters stated that EPA should not revoke the PM-10
standards in Idaho unless they plan to do the same nationwide, and that
a bad precedent would be set by the revocation.
Response: Even though the timing will vary, EPA will act to revoke
the pre-existing PM-10 NAAQS for other PM-10 areas, since those
standards have been replaced by new PM standards. Requests for
revocation must be initiated by the State, which must also satisfy EPA
that the requirements for approval of such requests, as set forth in 40
CFR 50.6(d), have been met.
III. Final Action
EPA is approving Idaho's request and by this final action is
determining that the PM-10 NAAQS that existed before September 16,
1997, will no longer apply to the Northern Ada County/Boise area. EPA
is also revoking the nonattainment designation associated with those
standards. Once this action becomes effective, among other things, the
conformity provisions of section 176(c) of the Act and the part D PM-10
nonattainment new source review requirements, will no longer apply for
the Northern Ada County/Boise area.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order (E.O.) 12866, Regulatory
Planning and Review.
B. Executive Order 12875
Under Executive Order 12875, Enhancing the Intergovernmental
Partnership, EPA may not issue a regulation that is not required by
statute and that creates a mandate upon a State, local or tribal
government, unless the Federal Government provides the funds necessary
to pay the direct compliance costs incurred by those governments, or
EPA consults with those governments. If EPA complies by consulting,
Executive Order 12875 requires EPA to provide to the Office of
Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of State, local and tribal
governments to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.
Today's rule does not create a mandate on State, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of Executive
Order 12875 do not apply to this rule.
C. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is
determined to be economically significant as defined under Executive
Order 12866, and (2) concerns an environmental health or safety risk
that EPA has reason to believe may have a disproportionate effect on
children. If the regulatory action meets both criteria, the Agency must
evaluate the environmental health or safety effects of the planned rule
on children, and explain why the planned regulation is preferable to
other potentially effective and reasonably feasible alternatives
considered by the Agency.
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This rule is not subject to
Executive Order 13045 because it does not involve
[[Page 12263]]
decisions intended to mitigate environmental health or safety risks.
D. Executive Order 13084
Under Executive Order 13084, Consultation and Coordination with
Indian Tribal Governments, EPA may not issue a regulation that is not
required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments To provide meaningful and
timely input in the development of regulatory policies on matters that
significantly or uniquely affect their communities.
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. Accordingly, the requirements
of section 3(b) of Executive Order 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
This action will affect the regulatory status of a geographical
area but will not impose any new regulatory requirements on sources.
For this reason, the Administrator certifies that this action has no
significant impact on any small entities, nor will it affect a
substantial number of small entities. Moreover, due to the nature of
the Federal-State relationship under the Clean Air Act, preparation of
a flexibility analysis would constitute Federal inquiry into the
economic reasonableness of State action. The Clean Air Act forbids EPA
to base its actions concerning SIPs on such grounds. Union Electric Co.
v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to State, local, or tribal governments in the aggregate;
or to private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that this final approval action does not include
a Federal mandate that may result in estimated annual costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. Because EPA is not imposing new
Federal requirements, neither State, local, or tribal governments, nor
the private sector should incur costs from this action.
G. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major'' rule as defined by 5 U.S.C. 804(2).
H. Rule Effective Date
The EPA finds that there is good cause for this action to become
effective immediately upon publication because a delayed effective date
is unnecessary due to the nature of this action, which is a
determination that the PM-10 NAAQS in effect prior to September 16,
1997, no longer applies to the Northern Ada County/Boise area. The
immediate effective date for this action is authorized under both 5
U.S.C. 553 (d)(1), which provides that rulemaking actions may become
effective less than 30 days after publication if the rule ``grants or
recognizes an exemption or relieves a restriction'' and section
553(d)(3), which allows an effective date less than 30 days after
publication ``as otherwise provided by the agency for good cause found
and published with the rule.''
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 May 11, 1999. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Particulate matter, Reporting and recordkeeping
requirements.
40 CFR Part 81
Air pollution control, National parks, Wilderness areas.
Dated: February 26, 1999.
Carol M. Browner,
EPA Administrator.
For the reasons stated in the preamble, parts 52 and 81, chapter I,
title 40 of the Code of Federal Regulations are amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart N--Idaho
2. Section 52.676 is added to read as follows:
Sec. 52.676 Control strategy: Particulate matter.
Revocation of PM-10 NAAQS--On July 24, 1998, the State of Idaho
submitted a request that EPA determine that the PM-10 NAAQS in effect
as of
[[Page 12264]]
September 16, 1997, no longer apply to the Northern Ada County/Boise
area and to revoke the nonattainment designation associated with that
NAAQS. The State has satisfied the requirements of the Clean Air Act as
well as 40 CFR 50.6(d) and Guideline for Implementing the 1-Hour Ozone
and Pre-Existing PM-10 NAAQS dated December 29, 1997. (A copy of the
guidance document may be found on the World Wide Web site at the
following URL: http://www.epa.gov/ttncaaa1/1pgm.html). Therefore, EPA
revokes the pre-existing NAAQS for particulate matter as delineated in
40 CFR 50.6. The revised NAAQS for particulate matter in 40 CFR 50.7
remain in effect.
PART 81--[AMENDED]
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 revised
to read as follows:
Sec. 81.313 Idaho.
* * * * *
Idaho PM-10
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area ------------------------------------------------------------------------------
Date Type Date Type
----------------------------------------------------------------------------------------------------------------
Ada County:
Boise........................ 3/12/99 Pre-existing............. 3/12/99 Pre-existing
PM-10 NAAQS NA........... PM-10 NAAQS NA.
Northern Boundary--Beginning at a
point in the center of the
channel of the Boise River,
where the line between sections
15 and 16 in Township 3 north
(T3N), range 4 east (R4E),
crosses said Boise River;
thence, west down the center of
the channel of the Boise River
to a point opposite the mouth of
More's Creek; thence, in a
straight line north 44 degrees
and 38 minutes west until the
said line intersects the north
line T5N (12 Ter. Ses. 67);
thence west to the northwest
corner T5N, R1W Western
Boundary--Thence, south to the
northwest corner of T3N, R1W;
thence east to the northwest
corner of section 4 of T3N, R1W;
thence south to the southeast
corner of section 32 of T2N,
R1W; thence, west to the
northwest corner of T1N, R1W;
thence, south to the southwest
corner of section 32 of T2N,
R1W; thence, west to the
northwest corner of T1N, R1W;
thence south to the southwest
corner of T1N, R1W Southern
Boundary--Thence, east to the
southwest corner of section 33
of T1N, R4E Eastern Boundary--
Thence, north along the north
and south center line of
Townships T1N, R4E, T2N, R4E,
and T3N, R4E, Boise Meridian to
the beginning point in the
center of the channel of the
Boise River.
Shoshone County.................. 1/20/94 Nonattainment............ 1/20/94 Moderate.
a. Northwest quarter of the
Northwest quarter, Section
8, Township 48 North, Range
2 East; Southwest quarter of
the Northwest quarter,
Section 8, Township 48,
North, Range 2 East;
Northwest quarter of the
Southwest quarter, Section
8, Township 48 North, Range
2 East; Southwest quarter,
Section 8, Township 48
North, Range 2 East;
Southwest quarter of the
Southwest quarter, Section
48 North, Range 2 East,
Boise Base (known as
``Pinehurst expansion
area'').
b. City of Pinehurst......... 11/15/90 Nonattainment............ 11/15/90 Moderate.
Power-Bannock Counties, part of:
(Pocatello):
State Lands.................. 11/15/90 Nonattainment............ 11/15/90 Moderate.
Portneuf Valley Area:
T.5S, R.34E Sections
25-36;
T.5S, R.35E Section
31;
T.6S, R.34E Sections
1-36;
T.6S, R.35E Sections
5-9, 16-21, 28-33
Plus the West \1/2\
Sections 10, 15, 22,
27, 34
T.7S, R.34E Sections
1-4, 10-14, and 24.
T.7S, R.35E Sections
4-9, 16-21, 28-33.
Plus the West \1/2\
of Sections 3, 10,
15, 22, 27, 34
T.8S, R.35E Section 4
Plus the West \1/2\
of Section 3
Power-Bannock Counties, part of:
(Pocatello):
Fort Hall Indian Reservation. 11/15/90 Nonattainment............ 11/15/90 Moderate.
T.5S, R.34E Sections
15-23;
T.5S, R.33E Sections
13-36
T.6S, R.33E Sections
1-36
T.7S, R.33E Sections
4, 5, 6
T.7S, R.34E Section 8
Bonner County.................... 11/15/90 Nonattainment............ 11/15/90 Moderate.
The Sandpoint Area:
Sections 1-3, 9-12, 15,
16, 21, 22, 27, 28 of
range 2 west and
Township 57 north; and
the western \3/4\ of
Sections 14, 23 and 26
of the same Township and
range coordinates.
Eastern Idaho Intrastate AQCR 61. 11/15/90 Unclassifiable
[[Page 12265]]
(Excluding the Power-Bannock
Counties, part of: Pocatello-
State Lands and Fort Hall
Indian Reservation PM-10
nonattainment areas).
Eastern Washington-Northern Idaho 11/15/90 Unclassifiable
Interstate AQCR 62.
(Excluding the Shoshone
County and City of Pinehurst
PM-10 nonattainment areas).
Idaho Intrastate AQCR 63......... 11/15/90 Unclassifiable
(Excluding the Sandpoint Area
PM-10 nonattainment area).
Metropolitan Boise Intrastate 11/15/90 Unclassifiable
AQCR 64.
(Excluding the former Ada
County Boise PM-10
nonattainment area).
----------------------------------------------------------------------------------------------------------------
* * * * * *
[FR Doc. 99-5380 Filed 3-11-99; 8:45 am]
BILLING CODE 6560-50-P
