[Federal Register Volume 61, Number 114 (Wednesday, June 12, 1996)]
[Rules and Regulations]
[Pages 29667-29672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14455]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[ID14-6994a; FRL-5515-1 ]
Description of Areas for Air Quality Planning Purposes; State of
Idaho; Correction to Boundary of the Power-Bannock Counties Particulate
Matter Nonattainment Area to Exclude the Inkom Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule, correction.
-----------------------------------------------------------------------
SUMMARY: This action corrects EPA's announcement of the boundary of the
Power-Bannock Counties PM-10 nonattainment area (particulate matter
with an aerodynamic diameter less than or equal to a nominal 10
micrometers) in the State of Idaho. The boundary of the Power-Bannock
Counties PM-10 nonattainment area is being corrected to exclude that
portion east of the Inkom Gap, a geographic feature separating the
Inkom area from the rest of the
[[Page 29668]]
nonattainment area. New analysis of air quality data existing at the
time of the original area designation indicates that the Inkom area, at
the time of and prior to designation, had never violated the National
Ambient Air Quality Standard (NAAQS) for PM-10. Additional current
information also indicates that the Inkom area has not and is not
predicted to violate the PM-10 standard into the foreseeable future.
This action will remove the City of Inkom and the surrounding area from
the nonattainment area. With this correction, the Part D new source
review requirements of the Clean Air Act will no longer apply to
sources in the Inkom area. Instead, new or modified major sources of
particulate matter would be subject to the Prevention of Significant
Deterioration (PSD) requirements.
DATES: This action will be effective on August 12, 1996 unless adverse
or critical comments are received by July 12, 1996. If the effective
date is delayed, timely notice will be published in the Federal
Register.
ADDRESSES: Written comments on this action should be addressed to
Steven K. Body, Office of Air Quality, U.S. Environmental Protection
Agency, Region 10, 1200 Sixth Avenue, Seattle, WA 98101. Copies of the
documents relevant to this action are available for public inspection
during normal business hours at the same address.
FOR FURTHER INFORMATION CONTACT: Steven K. Body, (206) 553-0782, or by
mail at the Region 10 address above.
SUPPLEMENTARY INFORMATION:
I. Background
A. In General
Section 107(d)(4)(B) of the Clean Air Act sets out the general
process by which areas were to be designated nonattainment for PM-10
upon enactment of the 1990 Clean Air Act Amendments (the ``Act'' or
``CAA''). The procedure that is relevant for the Power-Bannock Counties
PM-10 nonattainment area is stated in section 107(d)(4)(B)(i) of the
Act, which provides that each area that had been identified by EPA as a
PM-10 Group I area prior to the 1990 Clean Air Act Amendments (these
were areas that, at the time the particulate matter indicator was
changed from TSP to PM-10, were estimated to have a high probability of
exceeding the PM-10 NAAQS) be designated nonattainment for PM-10 by
operation of law upon enactment of the 1990 Amendments. While EPA
believes that, in general, the language of this section would appear to
preclude any exercise of EPA discretion to modify these initial
nonattainment area designations, EPA also believes that section
107(d)(4)(B)(i)'s explicit reliance on the Agency's prior Group I
determinations provides the basis for an exception to the general rule.
By requiring that all Group I areas be among the initial areas
designated nonattainment upon enactment of the 1990 CAAA, Congress
relied on EPA's expertise and judgment in determining, based on an
analysis of relevant air quality information, those areas for which a
PM-10 nonattainment status was merited. EPA does not believe that
Congress intended initial PM-10 areas to be designated nonattainment
based on a clearly erroneous Group I determination. Thus, one exception
to the non-initial designation modification principle is where, prior
to enactment of the 1990 Amendments, EPA mistakenly construed then-
existing air quality data and, as a consequence, incorrectly identified
an area as being among the Group I areas that were subsequently
reference in section 107(d)(4)(B)(i) of the Act. See 56 FR 37654, 37656
(August 8, 1991).
As discussed below, EPA believes that such a clear identification
error occurred in the case of the Power-Bannock Counties PM-10
nonattainment area. That is, EPA believes that it acted in error in
including the Inkom area as part of the Power-Bannock Counties PM-10
nonattainment area. Accordingly, under the authority of section
110(k)(6) of the Act, and based on the State's request, EPA is revising
the boundary of the Power-Bannock Counties PM-10 nonattainment area to
exclude the Inkom area. Although this boundary correction action is not
subject to the legal requirements for public notice and comment, EPA is
providing the public with an opportunity to comment on this action in
order to foster public participation and avoid further error.
B. Designation of the Area as Nonattainment
Prior to promulgation of the PM-10 NAAQS on July, 1, 1987 (52 FR
24672), total suspended particulate (TSP) was the indicator for
particulate matter. In the Pocatello vicinity, the TSP nonattainment
area consisted of the 12 square mile industrial area approximately 10
miles west of downtown Pocatello. See 49 FR 11177 (March 26, 1984). Two
major stationary sources of particulate matter, FMC Corporation's
elemental phosphorus facility and J.R. Simplot Company's phosphate
fertilizer facility, are located in the industrial complex. This TSP
nonattainment area did not include the City of Pocatello.
After promulgation of the PM-10 standard, EPA published a list of
``PM-10 Group I areas,'' areas with a strong likelihood of violating
the PM-10 NAAQS and requiring substantial revisions to their existing
state implementation plans. See 52 FR 29383 (August 7, 1987). The
August 7, 1987, document listed ``Pocatello'' as a Group I ``area of
concern'' and identified that area as including both Power and Bannock
Counties. 52 FR 29385. In October 1990, EPA issued a document
clarifying the description of certain Group I areas of concern. 55 FR
45799 (October 31, 1990). This document described the area of concern
as the ``City of Pocatello'' in Power and Bannock Counties and further
explained that: ``When cities or towns are shown, the area of concern
is defined by the municipal boundary limits as of the date of this
notice.'' 55 FR 45801 n. 2. The City of Pocatello, however, lies only
in Bannock County. In addition, the City of Pocatello does not include
either the FMC facility or the J.R. Simplot facility in the industrial
complex. Considering the original TSP nonattainment area boundary, it
would seem apparent that any potential PM-10 nonattainment site for
this area would have included the industrial complex, including the two
major stationary sources located there. However, the erroneous boundary
description for this area on the PM-10 Group I areas list remained, as
explained above, and became the boundary description for the PM-10 area
that was designated nonattainment by operation of law upon enactment of
the 1990 Amendments. Given the above inconsistencies, it seems evident
that the current boundaries of the Pocatello PM-10 nonattainment area
were and are incorrect.
The 1990 Clean Air Act Amendments became effective November 15,
1990. As discussed above, section 107(d)(4)(By)(i) required that all
Group I areas be designated nonattainment for PM-10 by operation of law
upon enactment of the 1990 Amendments. In March 1991, EPA published a
Federal Register document announcing all the areas, including all the
Group I areas, designated under the amended Act as PM-10 nonattainment
areas. 56 FR 11101 (March 15, 1991). The document identified the ``City
of Pocatello'' in Power and Bannock Counties as such an area, and
provided the public an opportunity to comment. As the document
indicated, EPA's solicitation of public comment on the nonattainment
area boundaries did not stem from any legal obligation, because neither
the initial designations nor the
[[Page 29669]]
initial classifications for PM-10 were subject to the requirements for
notice-and-comment rulemaking under either the Administrative
Procedures Act (5 U.S.C. 553-657) or section 307(d) of the Clean Air
Act. See generally 56 FR 11103; see also 56 FR 36755 & n. 2. Rather, as
a matter of policy, EPA requested public comment on the document in
order to facilitate public participation and avoid errors.
In response to EPA's March 1991 Federal Register document, the
Idaho Department of Environmental Quality (IDEQ) submitted comments to
EPA indicating what portion of the Pocatello area in Power and Bannock
Counties IDEQ believed should be designated nonattainment for PM-10.
The area described by IDEQ was approximately 260 square miles of lands
in Power and Bannock counties that included lands under State
jurisdiction and both trust and fee lands within the Fort Hall Indian
Reservation. The area also included the two major stationary sources in
the industrial complex, the Cities of Chubbuck and Pocatello and
certain areas east of Inkom Gap. The area east of Inkom Gap includes
the City of Inkom, a small community approximately 15 miles southeast
of downtown Pocatello, and a cement plant operated by Ash Grove Cement
Company, which is a major stationary source of PM-10 (see discussion
later in this document regarding the emissions impact of this
facility).
In August 1991, EPA used its authority under section 110(k)(6) of
the Act to make corrections in nonattainment area designations and
descriptions for several Group I areas based on information submitted
by commenters on the March 1991 document. 56 FR 37656 (August 8, 1991).
EPA included in that document corrections and clarifications to the
boundary description of the Pocatello nonattainment area consistent
with IDEQ's request. In correcting the Power-Bannock Counties listing,
EPA noted that the prior boundary description for this nonattainment
area as ``the City of Pocatello'' was clearly erroneous since Pocatello
lies only in Bannock County, and that EPA and the State had originally
intended that certain areas surrounding the City of Pocatello in both
Power and Bannock Counties be included in the nonattainment area. 56 FR
37658, 37664. In formally codifying the final designations,
classifications, and boundaries of areas in the country with respect to
PM-10 (and other NAAQS) in November 1991, EPA further refined the
description of the Power-Bannock Counties PM-10 nonattainment area by
clearly specifying those lands in the nonattainment area which are
within the exterior boundary of the Fort Hall Indian Reservation and
those lands in the nonattainment area that are State lands. 56 FR
56694, 56749 (November 6, 1991). However, neither the August nor the
November 1991 documents addressed the question of whether the portion
of the nonattainment area east of the Inkom Gap was properly included
in the boundary description.
II. This Action
A. Correction of the Boundary of the Nonattainment Area
On May 23, 1995, IDEQ submitted to EPA additional analysis of data
that were available at the time of enactment of the 1990 Clean Air Act
Amendments in support of a request to once again correct the Power-
Bannock Counties PM-10 nonattainment area boundary. The State's
submittal asked EPA to exclude that portion east of the Inkom Gap and
to simultaneously redesignate the Inkom area to attainment. Based on
the data information, EPA believes that the State has demonstrated that
inclusion of the Inkom area in the Power-Bannock Counties PM-10
nonattainment area prior to the 1990 Amendments to the Clean Air Act
was in error.
IDEQ's additional analysis is based upon monitored TSP data from
two locations in Inkom during the 1970s and 1980s. IDEQ operated a
sampler at the U.S. Post Office during 1972 and again from 1974 through
1986. In 1986, IDEQ moved the sampler to a well pump station owned by
the City of Inkom located on Highway 30, approximately one mile north
of the Post Office. Monitoring continued at this location until it was
discontinued on December 1, 1988. The State's additional analysis of
the TSP data collected by IDEQ during the 1970s and 1980s converting
TSP data to PM-10 data using a general ratio of PM-10 to TSP
demonstrates that the Inkom area has not experienced a violation of the
PM-10 NAAQS since 1981, well before promulgation of the PM-10 NAAQS on
July 1, 1987. The data submitted by IDEQ also shows a substantial
improvement in air quality in the Inkom area after 1982. In addition,
IDEQ submitted emission reduction information (which included both
historical actual emission estimates and allowable emission rates for
the Ash Grove Cement facility) for the Inkom area that demonstrates
that the PM-10 NAAQS has been protected since 1988, when monitoring in
the area ceased, because of reduced emissions. For a further discussion
of the air quality data and the emission reductions that have been
achieved in the area, please refer to the IDEQ submittal in the docket.
Section 110(k)(6) of the Act authorizes EPA, upon a determination
that EPA's action in approving, disapproving or promulgating any State
Implementation Plan or plan revision (or any part thereof) was in
error, to revise the action as appropriate in the same manner as the
approval, disapproval, or promulgation. In making such a correction,
EPA must provide such determination and the basis for it to the State
and the public. By this document, EPA is notifying the State of Idaho,
the Shoshone-Bannock Tribes, and the public that EPA is correcting the
boundary of the Power-Bannock Counties PM-10 nonattainment area to
exclude the area east of Inkom Gap, thus excluding the City of Inkom
and Ash Grove Cement's facility. The basis for this boundary correction
is that the State of Idaho, which requested in 1991 that the Inkom area
be included in the Power-Bannock County PM-10 nonattainment area, has
now submitted valid data information to EPA showing that its 1991
request was in error and asking EPA to correct the boundary
description. Had the State of Idaho presented this information either
before the clarification of the Group I listing of October 31, 1990, or
before the August 8, 1991, clarification of the PM-10 nonattainment
area boundary, EPA would have excluded the Inkom area from the Power-
Bannock Counties PM-10 nonattainment area.
Accordingly, as of the effective date of this action, the North-
South boundary along the eastern edge of the Power-Bannock Counties PM-
10 nonattainment area will be defined as the line between the West \1/
2\ and East \1/2\ of:
Sections 10, 15, 22, 27, 34 of T6S, R35E,
Sections 3, 10, 15, 22, 27, 34 of T7S, R35E, and
Section 3 of T8S, R35E
Although neither the Administrative Procedures Act nor the Clean
Air Act legally obligate EPA to provide the public an opportunity to
comment on this correction, EPA is inviting the State, the Shoshone-
Bannock Tribes, and the public to comment on this action to foster
public participation and avoid error. EPA will consider any written
comments on this action that are received by July 12, 1996. This
correction will become effective on August 12, 1996. This will provide
sufficient time for EPA to make any adjustments to this correction that
are appropriate in light of the comments.
[[Page 29670]]
In making this boundary correction, EPA notes that IDEQ has also
provided information showing that significant emission reductions have
been achieved at the Ash Grove Cement facility since 1990 and that Ash
Grove Cement is now operating under a 1995 IDEQ-issued and federally
enforceable operating permit that establishes emission limits that will
protect the NAAQS into the future. IDEQ has also provided information
showing that emissions from sources in the Inkom area are not expected
to contribute to violations of the PM-10 NAAQS in other portions of the
Power-Bannock Counties PM-10 nonattainment area because the Inkom Gap,
a constriction in the Portneuf River Valley formed by a mountain ridge
rising 1500 feet above the valley floor on either side of the river,
effectively provides a natural barrier between the airsheds of Inkom
and Pocatello and prevents transport of emissions between them.
Finally, IDEQ has committed to monitor air quality at two locations in
the Inkom area and to monitor meteorology at one location in the Inkom
area. Air quality monitoring has already begun in a residential area
near the elementary school in Inkom and a second air quality monitor,
located at the site of the expected maximum impact of Ash Grove
Cement's facility, began operation on October 12, 1995.
In correcting the boundary of the Power-Bannock PM-10 nonattainment
area to exclude the Inkom area, EPA has relied on the data available
prior to August 1991, when EPA announced the boundary description,
along with subsequent analysis of those data. The information submitted
by IDEQ regarding emission reductions and emission limitations since
that time and IDEQ's commitments to monitor air quality in the Inkom
area in the future were not regarded by EPA as a basis for the
correction. However, this information and the State's commitments do
provide additional assurance that the NAAQS will be protected in the
Inkom area into the future. EPA would be reluctant to revise through
correction the description of a nonattainment area based on information
available before EPA's initial erroneous boundary description if data
collected since the initial erroneous boundary description indicated
that the area was not in attainment of, or would be expected to soon
violate, the NAAQS.
B. State's Request to Redesignate the Inkom Area to Attainment
The State has also requested that the Inkom area be redesignated to
attainment. EPA declines to grant this portion of the State's request
at this time, because to do so would undermine the planning
requirements of section 107(d)(3)(E) of the Act for redesignation of a
nonattainment area (or portion thereof) to attainment. EPA may
redesignate an area to attainment if:
(i) The Administrator determines that the area has attained the
NAAQS;
(ii) The Administrator has fully approved the applicable
implementation plan for the area under section 110(k) of the Act;
(iii) The Administrator determines that the improvement in air
quality is due to permanent and enforceable reductions in emissions
resulting from implementation of the applicable implementation plan and
applicable federal air pollutant control regulations and other
permanent and enforceable reductions;
(iv) The Administrator has fully approved a maintenance plan for
the area as meeting the requirements of section 175A of the Act; and,
(v) The State containing such area has met all the requirements
applicable to the area under section 110 and part D of the Act.
The State of Idaho has not provided sufficient information to allow
EPA to make these findings for the Inkom area. Therefore, EPA is not
granting the State's request to redesignate the Inkom area to
attainment. Thus, this correction to the nonattainment area boundary
will result in the Inkom area being designated ``unclassifiable'' for
PM-10. This designation is the same designation as most rural areas
within the State of Idaho, and is the designation the Inkom area would
have had in August 1991 had it not been erroneously included in the
Power-Bannock Counties PM-10 nonattainment area.
III. Implications of this Action
Upon the effective date of this rule, the Inkom area, which is
currently designated nonattainment for PM-10, will revert to a
designation of ``unclassifiable'' for PM-10. A revised description of
the boundary for the Power-Bannock Counties PM-10 nonattainment area is
set forth in the table below, which shows the corrections that will be
made to the Table in Part 81.
As a result of today's action, new or modified major stationary
sources of particulate matter in the Inkom area will be subject to
Prevention of Significant Deterioration (PSD) requirements of Part C of
the Act rather than the New Source Review requirements of Part D of the
Act. In addition, the State no longer needs to include the Inkom area
in the planning requirements for the Power-Bannock Counties PM-10
nonattainment area. However, removing the Inkom area from the Power-
Bannock Counties PM-10 nonattainment area does not protect any source
in the area from requirements for additional control technology if the
source's emissions are determined in the future to contribute to
violations of a NAAQS in the Power-Bannock Counties PM-10 nonattainment
area or elsewhere and if such control technology is necessary to attain
the NAAQS.
As discussed above, based on the information submitted by the
State, EPA believes that the NAAQS in the Inkom area has been protected
through the present and will also be protected into the foreseeable
future. Should one of the State's monitors record a violation of the
PM-10 or other particulate matter NAAQS in the future, however, EPA
will proceed immediately to redesignate the Inkom area to
nonattainment.
IV. Administrative Review
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, Part D of the CAA
do not create any new requirements, but simply approve requirements
that the state is already imposing. Therefore, because the federal SIP-
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the federal-state relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42
U.S.C. 7410(a)(2).
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of
[[Page 29671]]
$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 the approval action promulgated 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. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
The EPA has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the 1990 Clean Air
Act Amendments enacted on November 15, 1990. The EPA has determined
that this action conforms with those requirements.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic and
environmental factors and in relation to relevant statutory and
regulatory requirements.
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866 review.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective August 12, 1996 unless, by July 12, 1996, adverse or critical
comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time. If no such comments are received, the public is
advised that this action will be effective August 12, 1996.
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 August 12, 1996. 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), 42 U.S.C.
7607(b)(2).
List of Subjects in 40 CFR Part 81
Environmental protection, Designation of areas for air quality
planning purposes.
Dated: May 29, 1996.
Carol M. Browner,
U.S. EPA Administrator.
PART 81--[AMENDED]
Chapter I, Title 40 of the code of Federal Regulations is amended
as follows:
1. The authority citation for part 81 continues to read as follows:
Authority 42 U.S.C. 7401-7671q.
2. Section 81.313 is amended by revising the entry for ``Bannock
and Power Counties'' in the ``Idaho PM-10 Nonattainment Areas'' table
to read as follows:
Sec. 81.313 Idaho
* * * * *
Idaho--PM-10 Nonattainment Areas
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area ------------------------------------------------------------------------------
Date Type Date Type
----------------------------------------------------------------------------------------------------------------
* * * * * *
Power-Bannock Counties, part of:
(Pocatello)
State Lands 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
Fort Hall Indian 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
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
[[Page 29672]]
* * * * *
[FR Doc. 96-14455 Filed 6-11-96; 8:45 am]
BILLING CODE 6560-50-P
