Clean Air Act Reclassification; Fort Hall Indian Reservation Particulate Matter (PM-10) Nonattainment Area

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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