02-18869. Clean Air Act Finding of Attainment; Portneuf Valley PM-10 Nonattainment Area, Idaho

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA has determined that the Portneuf Valley nonattainment area has attained the National Ambient Air Quality Standards for particulate matter with an aerodynamic diameter of less than or equal to 10 microns by the attainment date of December 31, 1996, as required by the Clean Air Act.

EFFECTIVE DATE:

This rule will become effective on August 26, 2002.

ADDRESSES:

Copies of all information supporting this action are available for public inspection and copying between 8:30 a.m. and 3:30 p.m., Pacific Standard Time at EPA Region 10, Office of Air Quality, 10th Floor, 1200 Sixth Avenue, Seattle, Washington 98101. A reasonable fee may be charged for copies.

FOR FURTHER INFORMATION CONTACT:

Steven Body, EPA, Region 10, Office of Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101, [phone].

SUPPLEMENTARY INFORMATION:

I. Background

On December 6, 2000, EPA solicited public comment on a proposal to find that the Portneuf Valley nonattainment area has 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 attainment date of December 31, 1996, as required by the Clean Air Act. See 65 FR 76203. On December 21, 2000, EPA granted a request to extend the comment period to January 19, 2001. See 65 FR 80397.

Although the finding at issue in the proposal was whether the area attained the PM-10 standards by the December 31, 1996 attainment date, EPA also discussed air quality data subsequent to the attainment date. During the end of December 1999 and the beginning of January 2000, there was a significant air pollution episode in the Portneuf Valley and Fort Hall PM-10 nonattainment areas during which three levels above the level of the 24-hour PM-10 NAAQS were reported at the Federal Reference Method (FRM) sampler at the Garrett and Gould monitoring station. None of the other monitoring stations in the Portneuf Valley area reported levels above the level of the 24-hour PM-10 standard during this time period. As discussed in the proposal, although these three exceedances were of concern to EPA, they did not represent a violation of the 24-hour PM-10 standard because three exceedances in three years results in an expected exceedance rate of 1.0 for the three-year period from 1997 to 1999. The 24-hour standard is attained when the expected exceedance rate is less than or equal to 1.0.

II. Air Quality Data Since Proposal

Because of concerns in the community regarding whether the Portneuf Valley area had in fact attained the PM-10 standards, including public comments received on the proposal, and the fact that a single exceedance at the Garrett and Gould FRM monitor during 2000 or 2001 would constitute a violation of the 24-hour PM-10 standard, EPA delayed taking final action on EPA's December 2000 proposal until air quality data for 2000 and 2001 was available. There have been no additional exceedances of the 24-hour PM-10 standard in 2000 or 2001 at the FRM sampler at Garrett and Gould. Therefore, the expected exceedance rate for the site is 1.0 for the years 1999, 2000, and 2001, just below the rate that would represent a violation of the 24-hour PM-10 standard. Therefore, the 24-hour PM-10 standard is attained at the Garrett and Gould FRM sampler as of December 31, 2001. There have been no exceedances of the 24-hour standard at the FRM sampler at the Sewage Treatment Plant in 2000 or 2001.^[1]

In the beginning of 2001, IDEQ installed a continuous PM-10 sampler (TEOM) at the Garrett and Gould monitoring site. IDEQ has reported that a level of 166 ug/m3 was recorded at this TEOM sampler on May 5, 2001, which would represent an exceedance of the 24-hour PM-10 standard. IDEQ has flagged this exceedance as attributable to a high wind natural event under EPA's policy entitled “Areas Affected by Natural Events,” dated May 30, 1996 (EPA's Natural Events Policy), and requested that this exceedance not be considered in determining the attainment status of the area. This exceedance is still under evaluation by EPA, both in terms of the value of the exceedance ^[2] and whether the exceedance qualifies as a natural event under EPA's Natural Events Policy. In any event, the exceedance at the TEOM sampler does not, in and of itself or in connection with the three exceedances that occurred at the Garrett and Gould FRM sampler in 1999, constitute a violation of the 24-hour PM-10 standard. For purposes of determining a violation of the 24-hour PM-10 standard, each sampler is evaluated separately. In other words, for there to be a violation of the 24-hour PM-10 standard, the data collected from a single sampler must document an expected annual exceedance rate of greater than 1.0 averaged over a three-year period. See Memorandum from Gerald A. Emison, Director, Office of Air Quality Planning and Standard, EPA, entitled “Revision to Policy on the Use of PM-10 measurement Data,” dated November 21, 1988. For this reason, EPA believes that the Portneuf Valley PM-10 nonattainment area continues to attain the PM-10 NAAQS when considering PM-10 data collected through 2001.

III. Major Issues Raised by Commenters

EPA received four comment letters in response to the proposal, one supporting the proposed action and three objecting to the proposed action. The following is a summary of the issues raised in the adverse comments on the proposal, along with EPA's response to those issues.

A. Air Quality in the Portneuf Valley Area

All three adverse commenters disputed the characterization of the Portneuf Valley area as being in attainment of the PM-10 standards. These commenters stated that the air quality in the area is very poor, especially during the winter and during inversions. The commenters further stated that the poor air quality results in adverse health effects for the citizens of Pocatello, such as headaches, sinus infections, sore throats, burning eyes, and respiratory problems.

It is certainly correct that poor air quality can cause or aggravate health problems. However, the scope of the action that was proposed, is very narrow; the only issue is whether the Portneuf Valley area has attained the PM-10 standards as of December 31, 1996, the attainment date for the area. Under sections 179(c)(1) and 188(b)(2) of the Clean Air Act (CAA), such a finding is based exclusively upon measured air quality levels over the most recent and complete three calendar year period preceding the attainment date, not on health data. See 40 CFR part 50 and appendix K. EPA finds that monitored air quality data in the Portneuf Valley nonattainment area shows attainment of the PM-10 NAAQS as of the attainment date of December 31, 1996.

Although EPA is finding that the Portneuf Valley area has attained the PM-10 standards, the area will continue to be designated nonattainment for PM-10 until the State of Idaho (Idaho or IDEQ) completes all planning obligations required by the CAA. These obligations include maintaining compliance with the PM-10 NAAQS, developing and submitting a State Implementation Plan (SIP) that provides the regulatory framework for attaining the PM-10 NAAQS, and developing and submitting a maintenance plan that will assure maintenance of the PM-10 standards for an additional 10-year period. Both the SIP and maintenance plan must demonstrate that the PM-10 NAAQS is protected at all places in the Portneuf Valley nonattainment area at all times.

EPA also notes that one of the major sources of particulate matter and particulate precursor gasses in the area, the FMC/Astaris elemental phosphorus facility, just across the border from the Portneuf Valley PM-10 nonattainment area, has recently shut down manufacturing operations resulting in significantly reduced emissions of PM-10. EPA estimates that almost 400 tons per year of PM-10 have been eliminated from this shutdown.

B. Planning for the Portneuf Valley Area

One commenter expressed concern that the Portneuf Valley area has no SIP in place that shows how the area will demonstrate attainment with the NAAQS for the next 10 years. The commenter states that EPA should not be moving to upgrade the nonattainment status of the Portneuf Valley area until such time as Idaho has an approved SIP that outlines a plan for improvement of air quality and that ensures compliance with air quality standards for the next decade.

As discussed above, this finding of attainment under section 179(c)(1) and 188(b)(2) of the CAA is based exclusively upon measured air quality levels over the most recent and complete three calendar year period preceding the attainment date. The status of the area's planning efforts are not relevant to a determination of attainment under section 179(c)(1) and 188(b)(2) of the CAA. In order for the Portneuf Valley PM-10 nonattainment area to be redesignated from nonattainment to attainment, however, Idaho must complete all planning obligations required by the CAA, including maintaining compliance with the PM-10 NAAQS, developing and submitting a SIP that provides the regulatory framework for attaining the PM-10 NAAQS, and developing and submitting a maintenance plan that assures maintenance of the PM-10 standards for an additional 10-year period. Although IDEQ has not yet completed its planning efforts for the area, EPA believes that Idaho has made substantial progress in its planning efforts, especially the nonattainment planning requirements under section 189 of the CAA.

C. Secondary Aerosols

One commenter stated that neither EPA nor IDEQ has any plan to deal with secondary aerosols (or their precursors) and that secondary aerosols constitute a large portion of overall air pollution in the area. The measured air quality data relied on in this action includes PM-10 contributions from secondary aerosols and their precursors. This data shows that secondary aerosols are not causing a violation of the PM-10 standards. As discussed above, the status of the area's planning efforts are not relevant to a determination of attainment under section 179(c)(1) and 188(b)(2) of the CAA.

D. December 1999 Data

One commenter noted the air pollution episode that occurred at the end of December 1999, suggesting this information should preclude a finding of attainment. As discussed above, the FRM at Garret and Gould recorded three exceedances of the 24-hour standard in 1999, there were no exceedances at this monitor during 1997, 1998, 2000, or 2001. Thus, the expected exceedance rate for each three-year period including 1999 is 1.0 and does not represent a violation of the 24-hour PM-10 NAAQS. In any event, the finding at issue in this action is whether the area attained the PM-10 standards as the attainment date of December 31, 2001.

IV. Implications of Today's Action

As discussed above, EPA finds that the Portneuf Valley PM-10 nonattainment area attained the PM-10 NAAQS by December 31, 1996, the attainment date for the area. This finding of attainment should not be confused, however, with a redesignation to attainment under CAA section 107(d) because the State has not, for the Portneuf Valley area, submitted a SIP or maintenance plan as required under section 175(A) of the CAA or met the other CAA requirements for redesignations to attainment. The designation status in 40 CFR part 81 will remain moderate nonattainment for the Portneuf Valley PM-10 nonattainment area until such time as Idaho meets the CAA requirements for redesignations to attainment.

V. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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 September 23, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 81

• Environmental protection
• Air pollution control
• National parks
• Wilderness areas

Dated: July 12, 2002.

L. John Iani,

Regional Administrator, Region 10.

Footnotes

1.  Operation of the FRM monitors at Idaho State University and Chubbuck School was discontinued in the summer of 1999.

2.  There are questions regarding how to “gap fill” for periods when the TEOM sampler did not operate on May 5, 2001.