[Federal Register Volume 63, Number 118 (Friday, June 19, 1998)]
[Proposed Rules]
[Pages 33605-33611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16404]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[ID 22-7002; FRL-6113-3]
Clean Air Act Reclassification; Fort Hall Indian Reservation
Particulate Matter (PM-10) Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA proposes to determine that a portion of the Fort Hall
Indian Reservation has not attained the National Ambient Air Quality
Standards (NAAQS) for particulate matter with an aerodynamic diameter
of less than or equal to 10 microns (PM-10) by the applicable
attainment date for moderate PM-10 nonattainment areas under the Clean
Air Act (CAA). In a concurrent notice of proposed rulemaking published
today, EPA has proposed that the existing Power-Bannock Counties PM-10
nonattainment area, which is currently classified as moderate with an
attainment date of December 31, 1996,
[[Page 33606]]
be separated into two nonattainment areas at the boundary between State
lands and the Fort Hall Indian Reservation. If EPA takes final action
to revise the Power-Bannock Counties PM-10 nonattainment area into two
nonattainment areas, EPA proposes in this action to find that the PM-10
nonattainment area within the exterior boundary of the Fort Hall Indian
Reservation (which EPA has proposed be referred to as the ``Fort Hall
PM-10 nonattainment area'') has not attained the PM-10 NAAQS by
December 31, 1996.
EPA's proposed finding that the proposed Fort Hall PM-10
nonattainment area has not attained the PM-10 NAAQS by December 31,
1996, is based on EPA's review of monitored air quality data from 1994
through 1996. If EPA takes final action on this proposal, the proposed
Fort Hall PM-10 nonattainment area will be reclassified by operation of
law as a serious PM-10 nonattainment area.
EPA recently established a new standard for particulate matter with
a diameter equal to or less than 2.5 microns and also revised the
existing PM-10 standards. Today's proposal, however, does not address
these new and revised standards.
COMMENTS: Comments on this proposal must be received in writing by July
20, 1998.
ADDRESSES: Written comments should be addressed to Ms. Montel
Livingston, Environmental Protection Agency, Office of Air Quality (OAQ
107), Docket ID 22-7002, 1200 6th Avenue, Seattle, WA 98101.
Information supporting this action is available for inspection during
normal business hours at the following locations: EPA, Office of Air
Quality, 1200 Sixth Avenue, Seattle, Washington 98101, and the
Shoshone-Bannock Tribes, Land Use Commission, Office of Air Quality,
Fort Hall, Idaho.
FOR FURTHER INFORMATION CONTACT: Steven K. Body, Office of Air Quality,
EPA Region 10, at the address above, or telephone (206) 553-0782.
SUPPLEMENTARY INFORMATION:
I. Background
A. CAA Requirements and EPA Actions Concerning Designation and
Classification
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).2 For an extensive discussion of
the history of the designation of the Power-Bannock Counties PM-10
nonattainment area, please refer to the discussion at 61 FR 29667,
29668-29670 (June 12, 1996).
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\1\ There are two pre-existing PM-10 NAAQS, a 24-hour standard
and an annual standard. See 40 CFR 50.6. EPA promulgated these NAAQS
on July 1, 1987 (52 FR 24672), replacing standards for total
suspended particulate with new standards applying only to
particulate matter up to ten microns in diameter (PM-10). The annual
PM-10 standard is attained when the expected annual 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.
On July 18, 1997, EPA promulgated revisions to both the annual
and the 24-hour PM-10 standards and also established two new
standards for particulate matter, both of which apply only to
particulate matter up to 2.5 microns in diameter (PM-2.5). See 62 FR
38651 (July 18, 1997). The revised standards became effective on
September 16, 1997. Although the revised suite of particulate matter
standards reflects an overall strengthening of the regulatory
standards for particulate matter, the revised 24-hour PM-10
standard, by itself, reflects a relaxation of that standard.
\2\ The 1990 Amendments to the CAA made significant changes to
the CAA. See Public Law No. 101-549, 104 Stat. 2399. References
herein are to the CAA as amended in 1990. The Clean Air Act is
codified, as amended, in the United States Code at 42 U.S.C. 7401,
et seq.
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All initial moderate PM-10 nonattainment areas had the same
applicable attainment date of December 31, 1994. See section 188 (a)
and (c)(1) of the CAA. States containing initial moderate PM-10
nonattainment areas were required to develop and submit to EPA by
November 15, 1991, a state implementation plan (SIP) revision providing
for, among other things, implementation of reasonably available control
measures (RACM), including reasonably available control technology
(RACT), and a demonstration of attainment of the PM-10 NAAQS by
December 31, 1994. See section 189(a) of the CAA.3
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\3\ The moderate area SIP requirements are set forth in section
189(a) of the CAA.
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B. Power-Bannock Counties PM-10 Nonattainment Area
The Power-Bannock Counties PM-10 nonattainment area covers
approximately 266 square miles in south central Idaho and comprises
both trust and fee lands within the exterior boundary of the Fort Hall
Indian Reservation and State lands in portions of Power and Bannock
Counties. Approximately 75,000 people live in the nonattainment area,
most of whom live in the cities of Pocatello and Chubbuck, which are
located near the center of the nonattainment area on State lands.
Approximately 15 miles northwest of downtown Pocatello is an area known
as the ``industrial complex,'' which includes the two major stationary
sources of PM-10 in the nonattainment area. The boundary between the
Fort Hall Indian Reservation and State lands runs through the
industrial complex. One of the major stationary sources of PM-10, FMC
Corporation (FMC), is located primarily on fee lands within the
exterior boundary of the Fort Hall Indian Reservation.4 The
second 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.
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\4\ EPA has learned that a portion of the FMC facility is
located on State lands. As discussed in the Federal Register
document in which EPA is proposing to split the nonattainment area
at the State-Reservation boundary, EPA is specifically requesting
comment on whether the proposed Fort Hall PM-10 nonattainment area
should include the portion of the FMC facility that is located on
State lands.
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The State of Idaho has established and operates four PM-10 State
and Local Air Monitoring Stations (SLAMS) in the current Power-Bannock
Counties PM-10 nonattainment area, all of which are on State lands
(State monitors). All of the State monitors meet EPA network design and
siting requirements, set forth at 40 CFR part 58, appendices D and E.
There have been no violations of the annual PM-10 standard at any of
the State monitors since 1990. There have been no exceedences of the
24-hour PM-10 standard recorded at any of the State monitors since
January of 1993.
The Shoshone-Bannock Tribes began operating a PM-10 monitor in
February 1995 on the portion of the nonattainment area within the
exterior boundary of the Reservation in February 1995. Prior to this
time, the Tribes relied on data from the State operated samplers for
area designations and classifications because of a lack of resources to
establish and operate their own Tribal monitoring stations. In 1994 the
Tribes requested and EPA granted the Tribes additional program support
grant funds to enable the Tribes to establish their own monitoring
stations in order to collect ambient air quality data representative of
conditions on the Reservation and to generate data to support Tribal
air quality planning
[[Page 33607]]
efforts. This monitor, called the ``Sho-Ban site,'' is located
approximately 100 feet north of the FMC facility across a frontage
road. Due to operational problems with the sampler and quality
assurance problems, valid data was not reported for this monitor until
October 1, 1996. Also in October 1996, the Tribes initiated monitoring
at two new sites. The ``primary site'' is located approximately 100
feet north of the FMC facility across the frontage road, approximately
600 feet east of the Sho-Ban site and approximately 600 feet from the
boundary between the Fort Hall Indian Reservation and State lands. Both
the Sho-Ban and primary sites are located in the area of expected
maximum concentration of PM-10 in the ambient air. The ``Tribal
background site'' is located approximately one and one-half miles
southwest of the FMC facility upwind of the predominant wind direction
from the industrial complex.
All three monitoring sites (Tribal monitors) are owned by the
Tribes and operated by a contractor for the Tribes. The Tribal monitors
meet EPA SLAMS network design and siting requirements, set forth at 40
CFR part 58, appendices D and E. Both the Sho-Ban and primary sites on
the Reservation portion of the nonattainment area have recorded
numerous PM-10 concentrations above the level of the 24-hour PM-10
NAAQS since October 1996.
Private industry operated a seven station air monitoring network,
funded by FMC and Simplot, on and near the industrial complex from
October 1, 1993, through September 30, 1994 (EMF monitors). There were
no measured PM-10 concentrations above the level of the 24-hour PM-10
NAAQS at any of the EMF stations. EMF Site #2, however, which was on
the Fort Hall Indian Reservation less than 300 yards east of where the
primary site is now located, reported several 24-hour concentrations of
PM-10 at or near the level of the NAAQS. EMF Site #2 also reported an
annual concentration of 55.1 g/m3 for the one year period the
network was in operation. This is 10% greater than the 50 g/m3
level of the annual NAAQS. Because the EMF network did not collect a
calendar year's worth of data, EPA has previously concluded that data
from EMF Site #2 did not document a violation of the annual PM-10
NAAQS. See 61 FR 66602, 66604 (December 18, 1996). EPA also stated,
however, that the number of the recorded 24-hour concentrations at or
near the level of the standard and the high annual concentration for
the one-year period EMF Site #2 was in operation indicated that a
serious air quality problem continued in the Power-Bannock Counties PM-
10 nonattainment area. Id. This conclusion is confirmed by the more
recent data from the Tribal monitors.
The current Power-Bannock Counties PM-10 nonattainment area
encompasses two different regulatory jurisdictions: the State of Idaho
for the State portion of the nonattainment area and the Shoshone-
Bannock Tribes and EPA for the Reservation portion of the nonattainment
area. Under the Clean Air Act, the State has the primary PM-10 planning
responsibilities for the State portion of the nonattainment area. See
CAA sections 110 and 189. In furtherance of those planning obligations,
the State of Idaho, along with several local agencies, developed and
implemented control measures on PM-10 sources located on State lands
within the Power-Bannock Counties PM-10 nonattainment area. The State
submitted these control measures in 1993 as part of its moderate PM-10
nonattainment State Implementation Plan (SIP) under section 189(a) of
the Act. These control measures include a comprehensive residential
wood combustion program, including a mandatory woodstove curtailment
program; stringent controls on fugitive road dust, including controls
on winter road sanding and a limited unpaved road paving program; and a
revised operating permit that represents reasonably available control
technology (RACT) for the J.R. Simplot facility, the only major
stationary source of PM-10 on the portion of the nonattainment area on
Sate lands. Although EPA has not yet approved the State's moderate PM-
10 SIP for the area, EPA has previously stated (in the context of
approving the State's requests for extensions of the attainment date)
that these control measures substantially meet EPA's guidance for
reasonably available control measures (RACM), including RACT, for
sources of primary particulate on the State portion of the
nonattainment area. See 61 FR 66602, 66604-66605 (December 18, 1996).
In contrast, the PM-10 requirements for the Tribal portion of the
nonattainment area are still under development.5 Because of
long-standing concerns about the air quality in the Power-Bannock
County PM-10 nonattainment area, EPA has been developing a Federal
Implementation Plan (FIP) for the portion of the nonattainment area
within the exterior boundary of the Fort Hall Indian Reservation. The
plan is being developed in close consultation with the Tribes and with
extensive public participation. EPA intends to propose the FIP by the
end of January 1999, and to finalize the FIP in the year 2000.
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\5\ In developing its PM-10 control strategy and SIP, the State
did not seek to impose controls on any sources located on
Reservation lands, including fee lands within the exterior boundary
of the Reservation, or attempt to demonstrate to EPA that it had
authority to promulgate and enforce air controls on Reservation
lands.
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The Clean Air Act Amendments of 1990 greatly expanded the role of
Indian Tribes in implementing the provisions of the Clean Air Act in
Indian country. Section 301(d) of the Act authorizes EPA to issue
regulations specifying the provisions of the Clean Air Act for which
Indian tribes may be treated in the same manner as States. See CAA
sections 301(d) (1) and (2). EPA promulgated the final rule under
section 301(d) of the Act, entitled ``Indian Tribes: Air Quality
Planning and Management,'' on February 12, 1998. 63 FR 7254. The rule
is generally referred to as the ``Tribal Authority Rule'' or ``TAR''.
The TAR implements the provisions of section 301(d) of the Act to
authorize eligible Tribes to implement their own Tribal air programs.
This includes a delegation of authority, to Tribes which meet certain
requirements and request delegation, to develop, adopt and submit PM-10
nonattainment area Tribal Implementation Plans for lands within the
exterior boundary of Indian Reservations, including fee lands. Until
promulgation of the TAR in February 1998, however, the Shoshone-Bannock
Tribes did not have authority under the Clean Air Act to carry out the
PM-10 planning responsibilities for the Tribal portion of the
nonattainment area.
The Shoshone-Bannock Tribes have expressed a strong interest in
seeking authority under the TAR to regulate sources of air pollution on
Tribal land under the Clean Air Act. Based on discussions with the
Tribes, however, EPA believes that it will be at least several months
before the Tribes will be ready to seek authority under the TAR to
assume Clean Air Act planning responsibilities and that, even should
they do so, the Tribes intend to build their capacity and seek
authority for the various Clean Air Act programs over time, rather than
all at once. EPA's understanding is that the Tribes continue to support
EPA's efforts to promulgate a PM-10 nonattainment FIP for the Tribal
portion of the nonattainment area notwithstanding the recent
promulgation of the TAR.
C. Attainment Date Extensions
Section 188(d) authorizes the EPA Administrator to grant up to two
one-year extensions of the moderate area
[[Page 33608]]
attainment date, provided certain requirements are met. The Power-
Bannock Counties PM-10 nonattainment area did not attain the PM-10
NAAQS by December 31, 1994. Two monitors on State lands recorded a
measured value above the level of the 24-hour PM-10 standard in January
1993, which resulted in six exceedences for each monitor because of a
sampling frequency at those sites of once every six days. This, in
turn, represented a violation of the NAAQS as of December 31, 1994. EPA
granted the State's request for a one-year extension and extended the
attainment date to December 31, 1995. See 60 FR 44452 (August 28, 1995)
(proposed action); 61 FR 20730 (May 8, 1996) (final action). The area
continued to violate the 24-hour PM-10 NAAQS through December 31, 1995
because of the exceedence recorded on the State monitors in January
1993. EPA granted a second one-year extension of the attainment date to
December 31, 1996. See 61 FR 66602 (December 18, 1996).
D. Reclassification to Serious
1. Regulatory Requirements
EPA has the responsibility, pursuant to sections 179(c)(1) and
188(b)(2) of the CAA, to determine within six months of the applicable
attainment date, whether PM-10 nonattainment areas attained the PM-10
NAAQS by the attainment date. Determinations under section 179(c)(1) of
the Act are to be based upon an area's ``air quality as of the
attainment date.'' Section 188(b)(2) is consistent with this
requirement. Generally, EPA will determine whether an area's air
quality is meeting the PM-10 NAAQS for purposes of sections 179(c)(1)
and 188(b)(2) based upon data gathered at monitoring sites in the
nonattainment area and entered into the Aerometric Information
Retrieval System (AIRS). Data entered into the AIRS has been determined
by EPA to meet federal monitoring requirements (see 40 CFR 50.6 and
appendix J, 40 CFR part 53, 40 CFR part 58, appendices A and B). The
data are reviewed in accordance with 40 CFR part 50, appendix K, to
determine the area's air quality status.
Pursuant to appendix K, the annual PM-10 standard is attained when
the expected annual arthimetic average of the 24-hour samples for a
period of one year does not exceed 50 micrograms per cubic meter
(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. A total of three consecutive years of non-violating air quality
data is generally necessary to show attainment of the 24-hour and
annual standards for PM-10. See 40 CFR 50.6 and 40 CFR part 50,
appendix K.
EPA is publishing this proposal pursuant to section 188(b)(2) of
the Act. Under subpart (A) of that section, a moderate PM-10
nonattainment area is reclassified as serious by operation of law if
EPA finds that the area is not in attainment by the applicable
attainment date. Pursuant to section 188(b)(2)(B) of the Act, EPA must
publish a Federal Register document within six months after the
applicable attainment date identifying those areas that have failed to
attain the standard and that have been reclassified to serious by
operation of law. See section 188(b)(2); see also section 179(c)(1).
2. Ambient Air Monitoring Data
Attainment determinations are based upon an area's ``air quality as
of the attainment date.'' See section 179(c) of the CAA. Therefore, EPA
determines whether an area's air quality has met the 24-hour PM-10
NAAQS by December 31, 1996, based upon calendar year data from 1994,
1995, and 1996.
As stated above, there are three Tribal PM-10 monitors within the
Fort Hall PM-10 nonattainment area which were installed during 1995 and
1996. All three monitors meet EPA's SLAMS network design and siting
requirements, which are set forth in 40 CFR Part 58, appendices D and
E. A description of the monitoring network and instrument siting
relative to the EPA SLAMS siting criteria as specified in 40 CFR Part
58, appendices D and E, can be found in the air quality data report in
the Docket for this proposal.
The air quality data for the period from October 8, 1996, to
December 31, 1996, was validated by the Shoshone-Bannock Tribes. EPA
has reviewed the air quality data collected and reported by the Tribes
during this period and quality assured the data for precision and
accuracy prior to entering the data into the AIRS data base. In
addition, a contractor with extensive experience in operating large
state monitoring networks, conducted an independent audit of the Tribal
monitoring data. The audit included a review of both the sampling
effort and filter analysis, and concluded that the data reported by the
Tribes during 1996 and 1997 was valid and reliable data.
Table 1 lists each of the monitoring sites within the proposed Fort
Hall PM-10 nonattainment area where the 24-hour PM-10 NAAQS was
exceeded during 1994-1997.6 Table 2 lists the concentration,
in micrograms per cubic meter, of each exceedence.
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\6\ Data from 1997 is after the attainment date and is included
for informational purposes only.
Table 1.--Fort Hall PM-10 Monitoring Data--1994, 1995, 1996
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3 year
Site Year Number of exceedences Expected exceedences average of
exceedences
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Primary..................... 1994 No data................... Assume 0.................. Assume 0.
1995 No data................... Assume 0.................. Assume 0.
1996 18........................ 20.96..................... 7.0.
1997 19........................ 20.1...................... 13.69.
Sho-Ban..................... 1994 No data................... Assume 0.................. Assume 0.
1995 No data................... Assume 0.................. Assume 0.
1996 9......................... 11.34..................... 3.78.
1997 13........................ 14.20..................... 8.5.
Upwind Site................. 1994 No data................... Assume 0.................. Assume 0.
1995 No data................... Assume 0.................. Assume 0.
1996 0......................... 0.00...................... 0.00.
1997 1......................... 1.05...................... .35.
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[[Page 33609]]
Table 2.--PM-10 Exceedences at Tribal Monitors
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Primary Sho-ban Background
Date site (ug/ site (ug/ site (ug/
m3) m3) m3)
------------------------------------------------------------------------
Oct. 10, 1996.................... 165.2 ........... ...........
Oct. 16, 1996.................... 198.6 ........... ...........
Oct. 18, 1996.................... 184.2 193.3 ...........
Oct. 22, 1996.................... 200.4 ........... ...........
Oct. 24, 1996.................... 228.5 ........... ...........
Nov. 17, 1996.................... ........... 245.3 ...........
Nov. 18, 1996.................... ........... 276.8 ...........
Nov. 19, 1996.................... ........... 419.7 ...........
Nov. 28, 1996.................... ........... 163.2 ...........
Dec. 3, 1996..................... 168.4 ........... ...........
Dec. 4, 1996..................... ........... 199.1 ...........
Dec. 9, 1996..................... 184.3 198.8 ...........
Dec. 10, 1996.................... ........... 208.1 ...........
Dec. 15, 1996.................... 218.8 ........... ...........
Dec. 20, 1996.................... 155.9 156.3 ...........
Dec. 24, 1996.................... 173.6 ........... ...........
Dec. 25, 1996.................... 174.3 ........... ...........
Dec. 26, 1996.................... 316.8 ........... ...........
Dec. 27, 1996.................... 236.1 ........... ...........
Dec. 29, 1996.................... 290.4 282.1 ...........
Dec. 30, 1996.................... 187.1 292.6 ...........
Dec. 31, 1996.................... 186.0 441.8 ...........
Jan. 1, 1997..................... 267.7 408.5 ...........
Jan. 2, 1997..................... 160.8 ........... ...........
Jan. 22, 1997.................... 164.8 ........... ...........
Jan. 25, 1997.................... ........... ........... 245.5
Feb. 14, 1997.................... 221.7 ........... ...........
Feb. 17, 1997.................... 198.0 ........... ...........
Feb. 19, 1997.................... 215.0 259.3 ...........
Mar. 1, 1997..................... 222.7 220.6 ...........
Mar. 2, 1997..................... 195.8 ........... ...........
Mar. 9, 1997..................... 239.4 ........... ...........
Mar. 10, 1997.................... 336.8 ........... ...........
Mar. 11, 1997.................... 205.6 ........... ...........
Mar. 18, 1997.................... ........... 173.1 ...........
Mar. 26, 1997.................... 165.9 ........... ...........
Mar. 30, 1997.................... ........... 234.3 ...........
Jun. 3, 1997..................... ........... 167.3 ...........
Aug. 26, 1997.................... ........... 183.6 ...........
Sept. 13, 1997................... ........... 229.6 ...........
Sept. 14, 1997................... ........... 345.8 ...........
Sept. 15, 1997................... 166.5 ........... ...........
Sept. 26, 1997................... 222.3 ........... ...........
Oct. 3, 1997..................... 186.3 156.4 ...........
Oct. 4, 1997..................... 253.7 ........... ...........
Oct. 5, 1997..................... 273.1 ........... ...........
Oct. 8, 1997..................... ........... 200.0 ...........
Oct. 9, 1997..................... ........... 271.4 ...........
Dec. 17, 1997.................... 158.1 ........... ...........
Dec. 27, 1997.................... 169.2 ........... ...........
Dec. 29, 1997.................... 245.3 ........... ...........
------------------------------------------------------------------------
According to 40 CFR part 50, the 24-hour PM-10 NAAQS is attained
when the expected number of days per calendar year with a 24-hour
average concentration above 150 ug/m3, averaged over three years, is
equal to or less than one. Because the Tribal monitoring sites did not
begin full operation until October 1996, the data base is less than the
three years of data generally needed for determination of compliance
with the PM-10 NAAQS under 60 CFR 50.6. Nevertheless, the number of PM-
10 concentrations above the level of the 24-hour PM-10 NAAQS between
October 8, 1996, and December 31, 1996 results in the Tribal monitors
showing a violation of the 24-hour PM-10 NAAQS as of the December 31,
1996, attainment date for the area. Appendix K of 40 CFR part 50
contains ``gapfilling'' techniques for situations where less than three
complete years of data are available. In brief, that procedure allows a
determination of non-compliance with a standard if it can be
unambiguously demonstrated that a violation occurred. With respect to
the Sho-Ban and primary sites, the expected exceedence rate of the 24-
hour standard, averaged over the years 1994, 1995, and 1996, for each
site is substantially greater than the 1.1 allowed for the PM-10 NAAQS,
even if the days during which the monitors did not operate or collect
valid data would have reported zero PM-10 levels. For example, the
expected exceedence rate for 1996 was 20.96 at the primary site and
11.34 at the Sho-Ban site. When this rate is averaged with an assumed
zero for 1994 and 1995, the three year average expected exceedence rate
of 7.0 for the primary site and 3.78 for the Sho-Ban site are above the
1.1 required to show
[[Page 33610]]
attainment of the 24-hour PM-10 NAAQS. In other words, even if there
were zero exceedences from January 1, 1994, to October 8, 1996, a
violation of the standard would occur because of the number of
exceedences that occurred from October 8, 1996, to December 31, 1996.
EPA therefore believes that there is a violation of the 24-hour NAAQS
for PM-10 under 40 CFR 50.6 in the proposed Fort Hall PM-10
nonattainment area using calendar year data from 1994, 1995, and 1996.
Based on this data, EPA proposes to find that the proposed Fort Hall
PM-10 nonattainment area failed to attain the PM-10 NAAQS by the
attainment date of December, 31, 1996.
None of the Tribal monitors collected sufficient data during 1994,
1995 and 1996 to make an attainment determination with respect to the
annual PM-10 standard. Generally, three years worth of data must be
collected in order to calculate the three year average of each year's
annual average, and the gap filling approach does not show a violation
in this instance.
EPA notes that it is evident from a review of the data recorded at
the Tribal monitors since December 31, 1996, that the values recorded
on the Tribal monitors from October through December 1996 are not an
aberration. Numerous levels above the 24-hour PM-10 standard have been
recorded since December 31, 1996, and these values have been fairly
consistent with the values recorded during 1996. Please refer to the
air quality data report in the Docket for further analysis of the data
from the Tribal monitors and appendix K ``gapfilling'' techniques.
E. Portneuf Environmental Council Lawsuit
On November 20, 1997, the Portneuf Environmental Council (PEC)
filed suit against EPA alleging that EPA had failed to make a finding
that the Power-Bannock Counties PM-10 nonattainment area had not
attained the PM-10 NAAQS by the December 31, 1996, attainment date, as
provided for in CAA section 188(b)(2)(A). EPA is making this proposal
in response to that lawsuit.
F. Revision to the Area Designation
In a concurrent notice of proposed rulemaking published in the
Federal Register today, EPA is proposing to revise the designation of
the Power-Bannock Counties PM-10 nonattainment area by creating two
distinct nonattainment areas along the State-Reservation boundary that
together cover the identical geographic area of the existing
nonattainment area. EPA has proposed that one revised area be comprised
of State lands (to be referred to as the ``Portneuf Valley PM-10
nonattainment area'') and that the other revised area be comprised of
lands within the exterior boundary of the Fort Hall Indian Reservation
(to be referred to as the ``Fort Hall PM-10 nonattainment area''). If
EPA finalizes its proposal to split the Power-Bannock Counties PM-10
nonattainment area, the areas will thereafter be considered separately
for PM-10 planning purposes and on the basis of the air quality data
within each separate nonattainment area.
II. Implications of This Action
A. Reclassification to Serious
By today's action, EPA is proposing to find that the proposed Fort
Hall PM-10 nonattainment area did not attain the PM-10 NAAQS by the
applicable attainment date of December 31, 1996. As discussed above,
this finding is based on air quality data showing exceedences and
violations of the PM-10 NAAQS during calendar years 1994, 1995 and
1996. If EPA takes final action on this proposed finding, the Fort Hall
PM-10 nonattainment area will be reclassified by operation of law as a
serious PM-10 nonattainment area under section 188(b)(2)(A) of the Act.
B. Serious Area Planning Requirements
PM-10 nonattainment areas reclassified as serious under section
188(b)(2) of the Act are required to submit, within 18 months of the
area's reclassification, SIP provisions providing for, among other
things, the adoption and implementation of best available control
measures (BACM), including best available control technology (BACT),
for PM-10 no later than four years from the date of reclassification.
The SIP must also contain a demonstration that its implementation will
provide for attainment of the PM-10 NAAQS. These requirements are in
addition to the moderate PM-10 nonattainment requirements of RACT/RACM.
As discussed above, EPA, in consultation with and with the support
of the Tribes, has been developing a FIP that will address the PM-10
planning requirements for the proposed Fort Hall PM-10 nonattainment
area. EPA intends to propose the FIP for the Fort Hall PM-10
nonattainment area no later than January 31, 1999, and to finalize the
FIP no later than July 31, 2001. As also discussed above, the Shoshone-
Bannock Tribes have expressed interest in applying for authority within
the next few years under EPA's newly promulgated Tribal Authority Rule
(TAR) to assume the PM-10 planning requirements for the Fort Hall
Indian Reservation, including the Fort Hall PM-10 nonattainment area.
Until the Tribes apply for and receive EPA approval under the TAR for
the PM-10 planning requirements for the Fort Hall Indian Reservation,
however, EPA will carry out, in consultation with the Tribes, the PM-10
planning responsibilities for the Fort Hall Indian Reservation.
Based on discussions with the Tribes, EPA is aware that the Tribes
are concerned that the reclassification of the Tribal portion of the
nonattainment area to serious will imply that the Tribes have not been
diligent in addressing the PM-10 planning requirements for the Tribal
portion of the nonattainment area. In this respect, EPA would like to
emphasize that until EPA promulgated the TAR in February of 1998, the
Tribes did not have authority under the Clean Air Act to address the
PM-10 planning requirements for the Reservation portion of the
nonattainment area. EPA will carefully consider any additional comments
or concerns raised by the Tribes during the public comment period.
C. New Particulate Matter NAAQS
On July 18, 1997, EPA promulgated revisions to both the annual and
the 24-hour PM-10 standards and also established two new standards for
particulate matter, both of which apply only to particulate matter
equal to or less than 2.5 microns in diameter (PM-2.5). See 62 FR
38651. The revised standards became effective on September 16, 1997.
Although the revised suite of particulate matter standards reflects an
overall strengthening of the regulatory standards for particulate
matter, the revised 24-hour standard, by itself, reflects a relaxation
of that standard.
EPA notes that, after converting the 1996 and 1997 PM-10 data as
reported by the Tribes to local temperature and pressure and
calculating the 99th percentile as is done under the revised 24-hour
PM-10 NAAQS, there is a strong likelihood that the proposed Fort Hall
PM-10 nonattainment area will violate the revised PM-10 NAAQS if the
number and extent of exceedences remain constant.
In the preamble to the final rule setting the new and revised
particulate matter standards, EPA stated that the pre-existing PM-10
standards would remain in effect for a period of time after the
effective date of the new standards to ensure a smooth transition to
the new
[[Page 33611]]
standards. 62 FR 38701. Given that the revision of the PM-10 NAAQS, by
itself, constitutes a relaxation, the proposed Fort Hall PM-10
nonattainment area will be subject to the provisions of section 172(e)
of the Act. Section 172(e) applies to prevent backsliding in those
areas that have not attained the pre-existing PM-10 standard as of the
date the PM-10 NAAQS revision became effective. As a result, the pre-
existing PM-10 standards will continue to apply in the proposed Fort
Hall PM-10 nonattainment area until EPA has completed the rulemaking
required under section 172(e). See 62 FR 38701. The rule promulgated
under section 172(e) must require controls in the proposed Fort Hall
PM-10 nonattainment area that are ``not less stringent than the
controls applicable to areas designated nonattainment before the
relaxation of the 24-hour PM-10 standard.''
III. Administrative Requirements
A. Executive Order (E.O.) 12866
Under E.O. 12866 (58 FR 51735 (October 4, 1993)), EPA is required
to determine whether regulatory actions are significant and therefore
should be subject to Office of Management and Budget (OMB) review,
economic analysis, and the requirements of the Executive Order. The
Executive Order defines a ``significant regulatory action'' as one that
is likely to result in a rule that may meet at least one of the four
criteria identified in section 3(f), including, under paragraph (1),
that the rule may ``have an annual effect on the economy of $100
million or more or adversely affect, in a material way, the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local or tribal
governments or communities.'' The Agency has determined that the
finding of failure to attain proposed today would result in none of the
effects identified in section 3(f). Under section 188(b)(2) of the CAA,
findings of failure to attain are based upon air quality considerations
and the resulting reclassifications must occur by operation of law in
light of certain air quality conditions. They do not, in and of
themselves, impose any new requirements on any sectors of the economy.
In addition, because the statutory requirements are clearly defined
with respect to the differently classified areas, and because those
requirements are automatically triggered by classifications that, in
turn, are triggered by air quality values, findings of failure to
attain and reclassification cannot be said to impose a materially
adverse impact on State, local or tribal governments or communities.
B. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
Findings of failure to attain and reclassification of nonattainment
areas under section 188(b)(2) of the CAA do not in and of themselves
create any new requirements. 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). Instead, this rulemaking only proposes to make a factual
determination, and does not propose to directly regulate any entities.
Therefore, pursuant to 5 U.S.C. 605(b), I certify that today's proposed
action does not have a significant impact on a substantial number of
small entities within the meaning of those terms for RFA purposes.
C. Unfunded Mandates
Title II of the Unfunded Mandates Reform Act (UMRA), establishes
requirements for Federal agencies to assess the effects of their
regulatory actions on State, local, and Tribal governments and the
private sector. Under the UMRA, EPA must assess whether various actions
undertaken in association with proposed or final regulations include a
Federal mandate that may result in estimated costs of $100 million or
more to the private sector, or to State, local or tribal governments in
the aggregate. EPA believes, as discussed above, that the proposed
finding of failure to attain and reclassification of the proposed Fort
Hall PM-10 nonattainment area are factual determinations based upon air
quality considerations and must occur by operation of law. Thus, the
finding does not constitute a Federal mandate, as defined in section
101 of the UMRA, because it does not impose an enforceable duty on any
entity.
D. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 (62 FR 19885 (April 23, 1997)) applies to any
rule that EPA determines (1) ``economically significant'' as defined
under Executive Order 12866, and (2) the environmental health or safety
risk addressed by the rule has a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children; and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency.
This proposed action is not subject to Executive Order 13045
because this is not an economically significant regulatory action as
defined by Executive Order 12866.
IV. Request for Public Comments
EPA is, by this document, proposing a finding that the proposed
Fort Hall PM-10 nonattainment area failed to attain the PM-10 standard
by December 31, 1996, the applicable attainment date. EPA solicits
public comments on all aspects of this proposal. Public comments should
be submitted to EPA at the address identified above by July 20, 1998.
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, Intergovernmental
relations, Particulate matter.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 10, 1998.
Chuck Findley,
Acting Regional Administrator, Region 10.
[FR Doc. 98-16404 Filed 6-18-98; 8:45 am]
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