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

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