Designation of Areas for Air Quality Planning Purposes: State of Idaho and the Fort Hall Indian Reservation

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[ID-21-7001, ID 22-7002; FRL-6185-8]

Designation of Areas for Air Quality Planning Purposes: State of

Idaho and the Fort Hall Indian Reservation

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: In this action, the Environmental Protection Agency (EPA) is

revising the designation for particulate matter with an aerodynamic

diameter of less than a nominal 10 microns (PM-10) for the Power-

Bannock Counties PM-10 nonattainment area, located in Idaho, by

creating two distinct nonattainment areas that together cover the

identical geographic area as the original nonattainment area. The

revised areas are divided at the boundary between State lands and the

Fort Hall Indian Reservation, with one revised area consisting of State

lands and the other revised area consisting of lands within the

exterior boundaries of the Fort Hall Indian Reservation. The

redesignation is based upon a request from the State of Idaho, which is

supported by monitoring and modeling information. Both areas retain PM-

10 nonattainment designation and classification as moderate PM-10

nonattainment areas as a result of this action.

EPA recently established a new standard for particulate matter with

an aerodynamic diameter equal to or less than a nominal 2.5 microns and

also revised the existing PM-10 standards. This rule, however, does not

address these new and revised standards.

EFFECTIVE DATE: December 7, 1998.

ADDRESSES: Information supporting this action can be found in Public

Docket No. [ID-21-7001, ID 22-7002]. The docket is located at EPA,

Region 10, 1200 Sixth Avenue, Seattle WA 98101. The docket may be

inspected from 9:00 a.m. to 4:30 p.m. on weekdays, except for legal

holidays. A reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: Steven K. Body, EPA Region 10, Office

of Air Quality (OAQ-107), EPA, Seattle, Washington, (206) 553-0782.

I. Background

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). 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 National Ambient Air

Quality Standards (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 10 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.

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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 boundaries 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 boundaries of the Fort Hall Indian Reservation. The other

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.

Pursuant to section 107(d)(3)(D) of the Act, the Governor of any

State, on the Governor's own motion, is authorized to submit to the

Administrator a revised designation of any area or portions thereof

within the State. On April 16, 1998, the State of Idaho submitted to

EPA a request to revise the designation

[[Page 59723]]

of the Power-Bannock Counties PM-10 nonattainment area by splitting the

nonattainment area into two separate nonattainment areas at the

boundary between the Fort Hall Indian Reservation and State lands. In

support of its request, the State of Idaho noted that the State has the

primary PM-10 planning responsibility under the Clean Air Act for State

lands within the nonattainment area, whereas EPA and the Shoshone-

Bannock Tribes (Tribes) have the primary PM-10 planning responsibility

for the Reservation lands 2 within the nonattainment area.

The State also noted that it has largely completed the PM-10 planning

and implementation of control measures for the PM-10 sources located on

State lands within the nonattainment area whereas no controls have been

proposed or imposed on sources located on Reservation lands within the

nonattainment area.

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\2\ ``Reservation lands'' as used in this notice refers to all

lands within the exterior boundaries of the Fort Hall Indian

Reservation. EPA believes that this land is ``Indian country'' as

defined under Federal law. See 18 U.S.C. Sec. 1151.

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The State also supported its request with monitoring data which

show that State monitors have not recorded any PM-10 concentrations

above the level of the 24-hour PM-10 NAAQS since January 1993 and that

the State lands within the nonattainment area have attained the PM-10

NAAQS. In addition, the State provided an analysis of pollution

concentrations recorded on Tribal monitors as a function of wind

direction which shows that exceedences of the PM-10 NAAQS on the Tribal

monitors are not the result of emissions from sources located on State

lands. The State also provided modeling information to support its

assertion that sources on State lands are not contributing to the

violations of the PM-10 NAAQS that have been recorded at the Tribal

monitors.

On June 19, 1998, EPA proposed to grant the State's request to

split the Power-Bannock Counties PM-10 nonattainment area into two

nonattainment areas at the State-Reservation boundary. 63 FR 33597. In

a concurrent notice of proposed rulemaking, EPA proposed to make a

finding that the proposed PM-10 nonattainment area within the exterior

boundaries of the Fort Hall Indian Reservation failed to attain the

NAAQS for PM-10 by the applicable attainment date. 63 FR 33605. Based

on a request from a commenter, EPA extended the public comment period

on both proposals for an additional 30 days. 63 FR 41221 (August 3,

1998).

EPA received comments from nine commenters on its proposals. Six of

the commenters--the State of Idaho--Division of Environmental Quality

(IDEQ), the City of Pocatello, Bannock Planning Organization, the

Portneuf Environmental Council (PEC), J.R. Simplot Company, and a

private citizen--supported EPA's proposal to split the Power-Bannock

Counties PM-10 nonattainment area into two nonattainment areas at the

State-Reservation boundary. The comments from PEC also suggest support

for EPA's proposal to make a finding that the proposed PM-10

nonattainment area within the exterior boundaries of the Fort Hall

Indian Reservation failed to attain the PM-10 NAAQS by the applicable

attainment date.

Three commenters--the Shoshone-Bannock Tribes, FMC, and a private

citizen--opposed EPA's proposal to split the existing PM-10

nonattainment area into two PM-10 nonattainment areas at the State-

Reservation boundary. FMC also opposed EPA's proposal to make a finding

that the proposed PM-10 nonattainment area within the exterior

boundaries of the Fort Hall Indian Reservation failed to attain the PM-

10 NAAQS by the applicable attainment date.

After carefully considering the public comments, EPA continues to

believe it is appropriate to split the existing Power-Bannock Counties

PM-10 nonattainment area into two nonattainment areas at the State-

Reservation boundary, with the area comprised of State lands to be

known as the ``Portneuf Valley PM-10 nonattainment area'' and with the

area comprised of Reservation lands to be known as the ``Fort Hall PM-

10 nonattainment area.'' EPA intends to take final action on its

proposal to find that the Fort Hall PM-10 nonattainment area failed to

attain the PM-10 NAAQS by the applicable attainment date in a later

rulemaking.

II. Response to Comments

A. Comments That EPA's Action is Contrary to EPA Policy and

Inconsistent With Prior EPA Actions

All three adverse commenters state that an integrated planning

effort is preferable and that splitting the area into two PM-10

nonattainment areas at the State-Reservation boundary could result in a

less comprehensive approach to air quality planning in the area. The

Tribes also assert that splitting the nonattainment area, in and of

itself, does not advance any air quality improvements and that it would

be a better use of resources to expedite efforts to promulgate rules

and permits for Reservation lands within the nonattainment area.

EPA agrees with the Tribes that promulgating rules to control PM-10

emissions from sources contributing to the nonattainment problem

reflected on the Tribal monitors is a high priority.3 EPA

assures the Tribes and the public that EPA is expending considerable

resources in the development of a Federal Implementation Plan (FIP) for

the Fort Hall PM-10 nonattainment area, which EPA intends to propose by

January 31, 1999.

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\3\ Once EPA received a request from the State of Idaho to split

the nonattainment area, EPA became obligated under section

107(d)(3)(D) to act to approve or deny the State's request. EPA does

not believe that denying the State's request requires any more

resources than approving the State's request.

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EPA also agrees that the ``split'' in and of itself does not

improve air quality. No action to designate an area as attainment or

nonattainment or to determine the appropriate boundaries of an

attainment or nonattainment area under section 107 of the Clean Air Act

improves air quality, in and of itself. Rather, it is the planning

efforts that flow from an area's designation that improves air quality.

Section 107(d)(3) of the Clean Air Act, which provides the authority

for the State's request and EPA's action, includes criteria in addition

to air quality that may be taken into consideration in the revision of

the designation of an area, such as planning and control

considerations. In general, EPA agrees that integrated planning in a

nonattainment area is desirable. In this situation, however, the two

nonattainment areas are at very different places in the planning

process and the planning responsibilities for the two areas rest with

different agencies. As stated in the proposal, the State has largely

completed its planning obligations and monitors on State lands show

attainment of the standard. 63 FR 33599-33601. EPA believes that

splitting the nonattainment area into two nonattainment areas at the

State-Reservation boundary will better enable EPA, the Tribes, and the

State to focus planning efforts on the areas under their respective

authorities, and will therefore, in the long run, advance efforts to

improve air quality. EPA does not believe that splitting the

nonattainment area will result in a less comprehensive approach to PM-

10 planning for the existing Power-Bannock Counties PM-10 nonattainment

area as a whole. EPA, the Tribes and the State have been working

together on PM-10 planning for the Power-Bannock Counties PM-10

nonattainment area since the early

[[Page 59724]]

1990s. Dividing the area into two nonattainment areas in no way

precludes EPA, the Tribes, and the State from continuing a coordinated

planning effort. EPA fully intends to work closely with the Tribes and

the State in the promulgation of a FIP and a Tribal Implementation Plan

(TIP) for Reservation lands within the nonattainment area and in the

revision and approval of the State's Implementation Plan (SIP). In the

comments submitted by the State, the State indicated its intent to

continue a coordinated planning effort with EPA and the Tribes

notwithstanding the split of the area into two nonattainment areas.

On a related matter, the adverse comment received from the private

citizen expresses concern that splitting the Power-Bannock Counties PM-

10 nonattainment area could impair planning efforts for PM-2.5 or other

pollutants. EPA emphasizes that a coordinated planning effort can be

accomplished notwithstanding that there are two separate nonattainment

areas. In addition, as EPA stated in the proposal, this action relates

only to PM-10. If the City of Pocatello or the Fort Hall Indian

Reservation is later identified as a nonattainment area for PM-2.5, EPA

will consider at the time of such identification whether, based on air

quality data, planning and control considerations, or other air

quality-related considerations, the planning requirements for PM-2.5

are best carried out by having a single nonattainment area or having

two nonattainment areas divided at the State-Reservation boundary or in

some other way. 63 FR 33603. These same factors will be considered with

respect to other pollutants.

Both the Tribes and FMC state that EPA's action to divide the

Power-Bannock Counties PM-10 nonattainment area is inconsistent with

EPA's longstanding practice and policy regarding the basis for

establishing nonattainment designations (and for determining whether to

redesignate nonattainment areas). The Tribes argue that, in the past,

EPA has made it clear that the dimensions of a nonattainment area are

not limited solely to those locations where violations have been

recorded. FMC similarly claims that EPA's practice has been to

``establish nonattainment areas based on the total contribution of

various sources to ambient air pollution in an entire airshed and not

simply on the presence or absence of exceedences at individual

monitoring sites or the presence or absence of sources in a particular

location.'' However, while these statements (and the litigation

examples cited by FMC) appear to accurately reflect prior EPA practice

and policy, the commenters' assumption that the proposal to split the

Power/Bannock nonattainment area is inconsistent with that practice and

policy is erroneous mainly because it ignores the ambient air data

cited by EPA in support of its proposed action. EPA's proposal to split

the existing nonattainment area is based on the conclusions it reached

after analyzing the contributions of the various sources, evidence

regarding PM-10 pollution impacts, and relevant ambient air quality

data. Moreover, EPA's proposed action is entirely consistent with

statutory requirements.

Section 107(d)(1)(A)(i) makes clear that an area can be designated

nonattainment if the area does not meet the standard or if the area

contributes to ambient air quality in a nearby area that does not meet

the standard. Thus, an area could be designated as part of a

nonattainment area even if the air quality in the area meets the

applicable standard if sources in that area contribute to ambient air

quality in a nearby area that does not meet the standard. However, that

is not the case here. As demonstrated by the State's request, the State

monitors show attainment of the standard on State lands and that

sources on State lands are not contributing to the violations of the

PM-10 standard that have been recorded on the Tribal portion of the

nonattainment area. In addition, section 107(d)(3)(A), which sets forth

criteria for EPA to consider when revising the designation of an area

on its own motion, states that EPA may initiate such actions ``on the

basis of air quality data, planning and control considerations, or any

other air quality-related considerations the Administrator deems

appropriate.'' EPA believes it would be unreasonable for the Agency not

to consider similar criteria in determining whether to approve or deny

a designation revision request submitted by the Governor of a State

under the provisions of subsection 107(d)(3)(D). That is precisely what

the Agency has done with respect to the air quality data submitted by

Idaho in support of its request to separate the Power-Bannock area into

two distinct nonattainment areas.

To support its claim that EPA is acting contrary to EPA policy and

practice by splitting the nonattainment area, FMC cites three specific

cases in which EPA has rejected proposals to split existing

nonattainment areas into separate areas: Lorain County, Ohio, for

ozone; the San Francisco Bay area for ozone; and Spokane, Washington

for carbon monoxide. The first 2 cases were the subjects of lawsuits:

respectively, State of Ohio v. Ruckelshaus, 776 F.2d 1333 (6th Cir.

1985) and Western Oil & Gas Ass'n v. U.S.E.P.A., 767 F.2d 603 (9th Cir.

1985). There are several important differences between the three cases

cited by FMC and the case at hand. First, in the case of the Power-

Bannock Counties PM-10 nonattainment area, ambient air quality data

provided by the State specifically show that sources of pollution on

State lands do not impact the violations that have been recorded on the

monitors located on Tribal lands. No such showing was made in any of

the three examples cited by FMC. In fact, in the case of Lorain County,

Ohio, FMC acknowledges that the sources in Lorain County were found to

contribute to the nonattainment problem in the greater Cleveland area

even though the monitors in Lorain County showed attainment. The Ninth

Circuit Court of Appeals found similar evidence with respect to the

complaining sources in the case involving the San Francisco Bay area.

In describing the areas where the petitioning sources were located, the

Court stated: ``[I]f treated separately, [these areas] would be

`attainment' areas. The reason is the prevailing winds, which blow from

the west and north toward the south and east, thus carrying emissions

from the parts of the Bay area in which [the plaintiffs] do business

into the part of the area that is clearly `nonattainment' and

contributing to that condition.'' 767 F.2d at 605. And again, in the

case of Spokane, in the documentation cited by FMC, EPA stated that it

was not possible to divide the nonattainment area into two

nonattainment areas under CAA section 107(d)(3)(A)(iv), which

authorizes EPA to make revisions to boundaries, because the area sought

to be eliminated from the nonattainment area in fact contributed to the

nonattainment problem.\4\

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\4\ In the briefing paper cited by FMC, EPA stated: ``CAA

Sec. 107(d)(4)(iv) allows boundary revisions under certain

circumstances. However, it does not allow elimination of any part of

a nonattainment area that would be considered part of the air shed

of the nonattainment area and that contributes to the nonattainment

problem.'' Spokane CO Briefing Report (EPA Region 10), October 14,

1997 (emphasis added). FMC's comments neglected to mention this

important qualification to EPA's position. A copy of the Spokane CO

Briefing Report is in the docket.

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Another important difference is that each of the three cases cited

by FMC involved efforts to divide along county lines or along even

smaller political boundaries areas that are all subject to the relevant

State's jurisdiction. Ultimately, for example, Ohio was

[[Page 59725]]

responsible for the nonattainment planning requirements for Lorain

County being fulfilled, as well as it was for those for the greater

Cleveland area. Under section 110(a)(2)(E)(iii) of the Act, even where

a State relies on a local or regional government or agency for the

implementation of elements of the State implementation plan, the State

has the ultimate responsibility for ensuring adequate implementation of

that plan. In the case of the Power-Bannock Counties PM-10

nonattainment area, however, the State's jurisdiction and CAA planning

responsibilities extend only to the portion of the nonattainment area

on State lands, while the Tribes and EPA are authorized by the CAA to

exercise planning responsibilities for the portion of the nonattainment

area that falls within the exterior boundaries of the Fort Hall Indian

Reservation. Although evidence regarding the lack of pollution

contribution is the key consideration for purposes of this action,

i.e., splitting or revising the existing nonattainment area designation

under section 107(d)(3)(D), this jurisdictional factor, as it relates

to the appropriate authority for air quality management and planning,

is (along with the air quality considerations) an important

consideration in EPA's decision to divide the Power-Bannock Counties

PM-10 nonattainment area into two nonattainment areas along the State-

Reservation boundary. In short, EPA does not agree with the Tribes and

FMC that this action is inconsistent with previous EPA policy and

practice.

The Tribes also claim that EPA's action to split the nonattainment

area is inconsistent with EPA policy because there are several other

PM-10 nonattainment areas that include both State lands and lands

within the exterior boundaries of Indian Reservations that EPA has not

considered splitting. Although this claim is certainly factually true,

it has simply not been an issue because EPA has never received requests

in these other cases from the relevant States or Tribes to divide these

nonattainment areas at the State-Reservation boundary, nor has EPA been

provided with the technical air quality information that would support

splitting any other such PM-10 nonattainment area at the State-

Reservation boundary, as is the case here.

In a similar vein, the Tribes assert that EPA did not split the

Power-Bannock Counties PM-10 nonattainment area at the State-

Reservation boundary in previous years when the State monitors were

recording violations of the PM-10 NAAQS, but there were no recorded

violations of the PM-10 NAAQS on the Reservation lands. Again, neither

the Tribes nor the State had previously submitted a request to EPA to

split the Power-Bannock Counties PM-10 nonattainment area. In addition,

although there were no monitors located on Tribal lands in the late

1980s and early 1990s (and therefore no documented violations of the

PM-10 NAAQS on Reservation lands), when violations were recorded on the

State monitors, modeling conducted at that time predicted significant

violations of the PM-10 NAAQS on Reservation lands in the vicinity of

FMC. In fact, the Tribes' comments acknowledge that violations of the

PM-10 NAAQS on the Reservation were predicted during the early planning

stages for the Power-Bannock Counties PM-10 nonattainment area.

Consequently, while there may not have been actual recorded violations

of the PM-10 NAAQS on Reservation lands due to the absence of monitors

when (and for some time after) the area was initially designated

nonattainment for PM-10, there has always been evidence of pollution

contribution from PM-10 sources on Tribal lands. Thus, it was

appropriate under section 107(d)(4)(B) to include both State and Tribal

lands in the area initially designated nonattainment for PM-10. In

summary, EPA does not believe splitting the Power-Bannock Counties PM-

10 nonattainment area at the State-Reservation boundary is inconsistent

either with the CAA or previous EPA practice or policy. This is true

both with respect to the treatment of the Power-Bannock Counties PM-10

nonattainment area prior to Idaho's recent request, and with respect to

other PM-10 nonattainment areas, including those consisting of both

State and Reservation lands.

The Tribes also express concern that EPA is treating the Tribes as

if they were a subdivision of the State and lack any independent role

with respect to this action. They further state that EPA has failed to

follow EPA's own guidance for acting on matters significantly or

uniquely affecting Indian Tribal governments by not adequately

considering the Tribes' concerns. Although EPA is fully cognizant of,

and believes it has respectfully considered, the Tribes' concerns,

there exist a number of legal, statutory and policy limitations--which

the Agency has shared on various occasions with Tribal

representatives--that constrain approaches and flexibility the Tribes

would have preferred the Agency to pursue. In addition, EPA believes

that a review of the 20-year planning relationship shared by the

Tribes, the State of Idaho and EPA, and cited favorably by the Tribes

in its comments on this action, clearly evinces strong support from EPA

with respect to assertions of sovereignty raised by the Shoshone-

Bannock Tribes in actions related to this area under the Clean Air Act.

For example, EPA has supported the Tribes' sovereignty on occasions

when the State of Idaho has attempted to assert regulatory jurisdiction

over sources located on fee lands within the exterior boundaries of the

Fort Hall Indian Reservation. EPA is also actively working with the

Tribes on a government-to-government basis in the regulation of sources

within Reservation boundaries, including FMC. Indeed, the only major

difference of opinion between the Tribes and EPA appears to be the

designation revision decision, since the Tribes continue to assert,

even in comments opposing this action, that they support and intend to

work closely with the Agency's efforts to promulgate a Federal

Implementation Plan addressing the sources located on Reservation

lands. EPA relates to Indian tribes, as a matter of policy and

practice, on a government-to-government basis, but in all actions

required to be taken by the Agency under the CAA, whether those actions

involve States or Tribes, EPA is subject to requirements and

limitations imposed by that statute.

It is also a fact that the existing nonattainment area covers

territory that is subject to two distinct jurisdictions and legal

authorities. Although the Tribes claim that the State's designation

revision request purports to assert authority over lands under Tribal

control, the State is merely availing itself of a regulatory option

provided by the CAA itself with respect to the lands under State

jurisdiction, that is, requesting a revision of the nonattainment area

boundaries under section 107(d)(3)(D). Under that section, EPA must act

on such requests within a specified time, i.e., no later than 18 months

after the request is submitted. The fact that EPA's action in approving

the State's request has consequences that are not favored by the Tribes

does not alter either the State's right to make the request nor EPA's

obligation to take action on the request. EPA is approving the State's

request because it meets specified CAA criteria. EPA understands that

among the Tribes' concerns is that the split action, particularly, will

result in unfair attributions regarding the unresolved nonattainment

problems in the area that they, in fact, never had authority or

responsibility to control. EPA would

[[Page 59726]]

suggest, however, that this designation revision action should more

properly be regarded as simply one component of a combination of

actions the Agency is undertaking in order to establish for the first

time a comprehensive PM-10 planning and implementation program on the

Tribal portion of the Power-Bannock nonattainment area. After careful

consideration of the Tribes' objections to dividing the nonattainment

area, both those expressed by the Tribes before the proposal and in

response to the proposal, it remains EPA's continued belief that, in

seeking to achieve the ultimate air quality goals of the Act, splitting

the existing nonattainment area into two separate nonattainment areas

is in the overall best interest of the area as a whole.

B. Comments That the State's Request and EPA's Action Are Procedurally

Defective

The Tribes and FMC also raise several alleged procedural defects

with the State's request and EPA's proposed action on the State's

request. First, FMC asserts that, as an initial matter, the State's

request to split the area is defective in that the State violated the

requirements of Idaho law as well as Clean Air Act requirements for

notice and public hearing. FMC raised these issues in a petition to the

State under Idaho law and the Tribes also raised these concerns to EPA

and the State prior to EPA's proposal. Because EPA received a copy of

FMC's petition and a copy of a letter from the Tribes to the State

raising the alleged deficiency of the State's request prior to EPA's

proposal on the State's request, EPA responded to the issues raised in

FMC's petition and the Tribes' letter on the validity of the State's

request in the proposal. 63 FR 33602-33603. In FMC's formal comments on

EPA's proposal to split the nonattainment area, FMC comments that EPA's

``conclusory rejection in [the proposal] of the position of FMC and the

Tribes is improper and contrary to the Administrative Procedures Act.''

FMC further asserts it is premature for EPA to take final action before

FMC's concerns have been resolved in the State proceeding. EPA

disagrees on all points.

As an initial matter, it was in no way improper or contrary to the

Administrative Procedures Act for EPA to explain in the proposal to

grant the State's request why EPA believed the issues raised by FMC and

the Tribes to the State regarding the alleged deficiency of the State's

request were without merit. EPA had before it issues relating to the

legal sufficiency of the State's request on which EPA was proposing to

take action. It was clearly appropriate for EPA to explain why EPA

believed the State's request was not deficient. EPA made clear in the

proposal that FMC and the Tribes would have an opportunity to again

raise these issues, as well as any other issues, in response to the

proposal, as required by the Administrative Procedures Act.

Neither FMC nor the Tribes have provided additional information in

their comments on the proposal to show why they believe the State's

request to EPA is deficient as a matter of State and Federal law. Based

on EPA's review of FMC's petition, the State's letter to EPA responding

to FMC's petition, and EPA's review of the State regulations at issue,

EPA agrees with the State that the State was not required to provide

public notice and opportunity to comment on the State's request to EPA

as a matter of State law. EPA also agrees with the State that the

State's request to EPA to split the nonattainment area into two

nonattainment areas is not subject to IDAPA 16.01.01.578 because that

section is entitled ``Designation of Attainment, Unclassifiable and

Nonattainment Areas'' and the State's request to EPA was not a request

to designate an area attainment, unclassifiable, or nonattainment.

Finally, as stated in the proposal, EPA does not believe that the

State's request to EPA was required to go through public notice and

comment before submission to EPA under sections 110(a)(2) and 110(l) of

the CAA because the State's request is not a SIP or SIP revision. In

short, EPA believes that FMC's petition in the State proceeding is

without merit. Under such circumstances, EPA does not believe it is

appropriate to defer action on the State's request until FMC's petition

under Idaho law has been resolved.5

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\5\ FMC has advised Idaho that it intends to drop its challenge

to Idaho's request at the State level once a final settlement of

FMC's alleged violations of the Resource Conservation and Recovery

Act (RCRA) has gone through public comment and been finally entered.

A consent decree between FMC and EPA resolving alleged RCRA

violations at the FMC facility was lodged in the United States

District Court for the District of Idaho on October 16, 1998, and is

currently undergoing a 30 day public comment period.

---------------------------------------------------------------------------

Along with the claim that the State impermissibly invoked section

107(d)(3)(D) over lands subject to Tribal jurisdiction, which EPA

addressed earlier in this notice, the Tribes raise another procedural

defect in their comments, asserting that EPA has ignored section 164(c)

of the Clean Air Act. That section provides that ``Lands within the

exterior boundaries of Federally recognized Indian Tribes may be

redesignated only by the appropriate governing Indian body. . . .'' In

arguing against splitting the nonattainment area, the Tribes assert

that EPA's action is contrary to section 164(c). Section 164, however,

applies only to the redesignation of areas as Class I, Class II, or

Class III for purposes of the Prevention of Significant Deterioration

(PSD) program. The redesignation of an area as Class I, II, or III

under section 164 determines the maximum permitted ambient impact of

any new major source or modified major source constructed in an area

designated as attainment or unclassifiable under section 107. It does

not apply to the designation or redesignation of areas under section

107 of the Act. Moreover, EPA is not changing the designation of

``lands within the exterior boundaries'' of the Fort Hall Indian

Reservation, but rather, separating an existing nonattainment area that

includes both State and Tribal lands at the State-Reservation boundary.

FMC comments that EPA should take into consideration the

redesignation requirements of section 107(d)(3)(E) in deciding whether

to split the Power-Bannock Counties PM-10 nonattainment area into two

separate nonattainment areas. As EPA stated in the proposal, section

107(d)(3)(E), by its terms, applies only to requests to redesignate an

area from nonattainment to attainment. 63 FR 33603. The State has not

requested that the Portneuf Valley PM-10 nonattainment area, as defined

in this notice, be redesignated from nonattainment to attainment, and

the area will retain its classification as a moderate PM-10

nonattainment area as a result of this action. EPA did state in the

proposal, as FMC notes, that the State of Idaho is demonstrating

attainment of the PM-10 standard on State lands. FMC does not show or

even suggest that any portion of the Portneuf Valley PM-10

nonattainment area is currently violating the PM-10 standards. There

are many areas in the country that are in the same position that the

Portneuf Valley PM-10 nonattainment area will be in as a result of this

action: many other areas have attained the standard--which is a factual

determination based on air quality data--but have not yet been

redesignated as ``attainment'' for PM-10 under section 107(d)(3)(E)

because they have either not yet requested redesignation or not yet

completed the planning requirements of section 107(d)(3)(E). EPA does

not believe it is appropriate to hold the Portneuf Valley PM-10

nonattainment area to the requirements of section 107(d)(3)(E) when it

is simply requesting that the

[[Page 59727]]

current nonattainment area be split and is not requesting that the

nonattainment area be redesignated as attainment for PM-10.

FMC also argues that because the split will result in different

treatment for the two nonattainment areas under EPA's transition policy

for PM-2.5, see 63 FR 33604, the State's request to split the

nonattainment area is, in essence, a SIP, and, as FMC argued in its

petition in the State proceeding, should have gone through notice and

public comment under section 110(a)(2) and 110(l) of the Act. There is

simply no basis to argue that the State's request to split the

nonattainment area is a SIP or a SIP revision. The State's request does

not contain and was not intended to impose any control measures and

does not include any other elements of a SIP, such as an emission

inventory or an attainment demonstration. The State submitted a PM-10

nonattainment SIP for the portion of the Power-Bannock Counties PM-10

nonattainment area on State lands in 1993, on which EPA has not yet

taken action. The State's 1993 SIP went through public notice and

comment at the State level. Idaho has advised EPA in its request to

split the nonattainment area that it intends to submit a revision to

the 1993 SIP this year. That SIP revision will also be required to meet

the notice and public comment requirements of section 110(a)(2) and

110(l) of the Act.

C. Comments Relating to the Technical Basis for EPA's Action

The Tribes and the private citizen who submitted adverse comments

contend that the existing Power-Bannock Counties PM-10 nonattainment

area was delineated on the basis of natural topographical and

meteorological characteristics of the air shed, and that there is no

topographical or meteorological basis for splitting the nonattainment

area. The individual commenter further states that the split is

therefore not based on scientific considerations. As stated in the

proposal and in earlier responses to comments, in determining whether

to approve or deny a State's request for a revision to the designation

of an area under section 107(d)(3)(D), EPA believes it is appropriate

to consider the same factors Congress directed EPA to consider when EPA

initiates a revision to a designation of an area on its own motion

under section 107(d)(3)(A). 63 FR 33599. These factors include ``air

quality data, planning and control considerations, or any other air

quality-related considerations the Administrator deems appropriate.''

Thus, although technical and scientific considerations are factors in

determining the designation of an area, they are not the sole factors.

At the time the Power-Bannock Counties PM-10 nonattainment area was

delineated, a State monitor at the sewage treatment plant (STP),

located downwind of the industrial complex and near the Reservation

boundary, recorded violations of the PM-10 standard. There was little

other technical or scientific information upon which to base the

boundary other than best professional judgement. Therefore, the

topographical and general meteorological characteristics of the area

were strong considerations in drawing the boundary. Although there were

no monitors located on Reservation lands at the time the PM-10

nonattainment area was originally established, the Tribes and the State

of Idaho provided comments to EPA requesting that the nonattainment

area be established to include the major sources of particulate matter

that were thought to contribute to the PM-10 exceedences, including FMC

and Simplot at the industrial complex. 61 FR 29667, 29668 (June 12,

1996); 56 FR 37654, 37658 (August 8, 1991). In short, the boundary was

determined based on considerations of where air quality did not meet or

was not believed to meet the PM-10 standard and the location of sources

thought to contribute to air quality that did not meet the standard or

was not believed to meet the standard. Neither the State nor the Tribes

requested at the time the Power-Bannock Counties PM-10 nonattainment

area was first delineated that the nonattainment area be divided at the

State-Reservation boundary. 61 FR 29668; 56 FR 37658. In fact, at the

time the boundary deliberations were ongoing, the State was regulating

FMC, which was located on fee lands within the Reservation, under a

Memorandum of Agreement with the Tribes. Therefore, EPA did not

consider then whether, apart from technical air quality considerations,

jurisdictional considerations should play a role in establishing the

boundary of the nonattainment area.

Several important factors have changed since that time. First, the

State monitors now show attainment of the standard and the Tribal

monitors, which were installed in 1995 and 1996 in areas where modeling

had predicted maximum PM-10 concentrations, have recorded violations of

the PM-10 standard. Second, the technical and scientific understanding

of the sources and their contribution to PM-10 violations in the area

has increased significantly. EPA has a better understanding of

meteorology in the area and how it affects the continuing violations of

the PM-10 standard that have been recorded on the Tribal monitors.

Based on information available to EPA, it appears that, due to the

predominant wind direction, PM-10 emissions from FMC, located on the

Reservation, are the primary, if not sole, cause of the continuing

violations that have been recorded. Finally, the State has largely

completed the PM-10 planning and control process for the sources under

its authority, whereas the planning and control process for the sources

on Reservation lands is still under development. All these factors

support EPA's decision to grant the State's request to split the

nonattainment area into two nonattainment areas. Although EPA agrees

that the decision to split the area is not based on topographical

features of the area, EPA disagrees that the decision to split the area

is not based on scientific or meteorological considerations. The air

quality data recorded on the State and Tribal monitors as well as the

pollution windroses showing that State sources do not cause the

violations of the standard on the Tribal monitors constitute the

scientific and meteorological considerations underlying EPA's action.

Also relevant is the fact (which the State acknowledges) that the two

areas are subject to differing jurisdictions, an important planning and

control consideration that EPA believes is an appropriate factor to

consider under the Act.

FMC asserts that the Tribal monitors do not document a violation of

the 24-hour PM-10 NAAQS because the Tribal monitors had collected less

than three years of data as of the attainment date of December 31,

1996, and because the existing data does not ``unambiguously show

nonattainment,'' a condition for reliance on less than three years of

data. In support of its argument that the Tribal monitors do not

``unambiguously show nonattainment'' of the 24-hour PM-10 standard, FMC

asserts that the placement of the Tribal monitors raises several

technical and legal issues regarding the siting and reliability of the

data relied on by EPA in the proposal. Although FMC provides few

specifics to support this charge, the company argues that one of the

Tribal monitors is on a highway right-of-way, and thus subject to undue

influence from vehicle traffic, and that another Tribal monitor is

located on FMC land which is subject to institutional restrictions on

development and public use.

As an initial matter, EPA is not, in this notice, making a

determination of

[[Page 59728]]

whether or not the Fort Hall PM-10 nonattainment area is in violation

of the PM-10 NAAQS. For purposes of EPA's decision to split the

nonattainment area, there is no legal requirement that the air quality

data considered by EPA establish a violation of the PM-10 NAAQS. The

difference in air quality between the Reservation and State lands was

one factor considered by EPA, not the sole factor. EPA nonetheless

disagrees with FMC's suggestion that the siting of the Tribal monitors

is improper and that the data are unreliable. With respect to FMC's

assertion that one Tribal monitor is located on a highway right-of-way

and is subject to undue influence from vehicle traffic, it is important

to note that FMC does not argue that the monitor does not meet the EPA

siting criteria of 40 CFR part 58, appendix E. EPA disagrees that this

monitor (referred to as the ``Sho-Ban site'') is unduly influenced by

vehicle traffic. The magnitude of emissions from paved highways is a

function of several factors including vehicle speed, vehicle weight,

silt loading on the roadway, number of vehicles, and emissions from the

vehicles themselves. This is not a major roadway, but rather a frontage

road. Thus, there are relatively few vehicles passing along this

section of roadway and vehicle speeds are low. EPA believes that

vehicular emissions from this section of road are minimal and do not

unduly influence ambient levels of PM-10. In addition, another Tribal

monitor (referred to as the ``primary site'') that has recorded

numerous exceedences of the PM-10 standard is located in a similar

orientation vis-a-vis the frontage road as the Sho-Ban site (across the

frontage road from FMC and near the road). If, as FMC asserts, the Sho-

Ban monitor is unduly influenced by road dust, one would also expect to

see exceedences on the same day and of similar magnitude at the primary

site. This is not the case. On only a few occasions have exceedences

been recorded at the primary site and the Sho-Ban site on the same

days. Instead, exceedences on both of these monitors, as well as on the

third Tribal monitor, are closely correlated with the wind direction

blowing from FMC sources toward the monitors.

With respect to FMC's assertion that the primary site is located

``on lands owned and controlled by FMC which are subject to specific

restrictions on development and public use, although it is not clear

from FMC's comment, FMC may be implying that the monitor does not

measure ambient air. ``Ambient air'' for NAAQS purposes is defined as

``that portion of the atmosphere, external to buildings, to which the

general public has access.'' 40 CFR 50.1(e). EPA notes that, at the

time the monitor was established and to this day, access to the

vicinity of the monitor has been in no way restricted by a

fence.6 The primary site is located in an area external to

buildings, to which the general public has access. That FMC has the

legal right to restrict access to the location of the monitor is

irrelevant. In short, there is no basis for FMC's suggestion that the

monitors or data are invalid.

---------------------------------------------------------------------------

\6\ Access to the monitor itself is, of course, restricted by a

15 by 10 foot chain-link fence to guard against vandalism and

tampering.

---------------------------------------------------------------------------

FMC argues that the attainment status of all or part of the Power-

Bannock Counties PM-10 nonattainment area is moot because FMC intends

to install additional controls on its facility. FMC notes that EPA and

FMC are in the process of negotiating a settlement to resolve

violations of the Resource Conservation and Recovery Act and that, as

part of those discussions, FMC has committed to installing new emission

controls and reconfiguring various processes to achieve significant PM-

10 emission reductions at the facility. In fact, since FMC submitted

its comments, a consent decree between FMC and EPA resolving alleged

RCRA violations at the FMC facility was lodged in the United States

District Court for the District of Idaho on October 16, 1998, and is

currently undergoing a 30 day public review and comment period. The

RCRA consent decree, once entered by the Court, will require FMC to pay

a civil penalty of $11,864,800 million for the alleged RCRA violations

and take measures to bring the FMC facility into compliance with RCRA.

The RCRA consent decree also includes 13 ``supplemental environmental

projects'' (referred to as SEPs) designed to reduce PM-10 emissions at

the FMC facility.7 FMC states in its comments on EPA's

proposal to split the nonattainment area that the attainment status of

the area is moot because FMC believes the Reservation will be able to

attain the PM-10 standard once it has completed installation and

implementation of the SEPs under the RCRA consent decree. EPA certainly

supports any PM-10 emission reductions by FMC, whether voluntary or as

part of an enforceable settlement agreement. That the area may attain

the PM-10 NAAQS several years from now after FMC installs completes the

SEPs, however, does not render the attainment status of the area at the

present time a moot issue. In any event, the attainment status of the

State monitors versus the Tribal monitors is only one of the many

factors considered by EPA in deciding to split the nonattainment area.

---------------------------------------------------------------------------

\7\ The RCRA consent decree also includes a SEP whereby FMC

commits $1,650,000 to fund a study of the potential health effects

on residents of the Fort Hall Indian Reservation that may have

resulted from releases of hazardous substances at the FMC facility.

---------------------------------------------------------------------------

FMC also contends that the State's technical analysis, where it

looked at the ``urban complex'' (the Cities of Pocatello and Chubbuck

and the surrounding urban areas) and the ``industrial complex'' (FMC

and J.R. Simplot) is flawed. FMC asserts that the State's analysis

might support splitting the nonattainment area between the urban

complex and the industrial complex, but not splitting the area within

the industrial complex. FMC misunderstands the two-step analysis

conducted by the State. The State first presented information to

demonstrate that these two separate areas have separate air quality

impacts and sources. Specifically, the modeling information presented

by the State shows that the urban complex and the industrial complex

have different sources contributing to the high PM-10 levels that have

been recorded in each area and that there is no evidence of significant

mixing of emissions between the urban complex and the industrial

complex. Had the State stopped here in its analysis, FMC would be

correct in its assertion that there is no basis for splitting the

existing nonattainment area at the State-Reservation boundary. The

State went on to show, however, that sources on State lands within the

industrial complex, namely, Simplot, are effectively controlled and do

not contribute to violations of the PM-10 NAAQS on State or Tribal

lands. EPA agrees with the State that this information supports

splitting the existing nonattainment area at the State-Reservation

boundary.

D. Comments Relating to the Location of the Boundary

In the State's April 16, 1997, request, the State requested that

the Power-Bannock Counties PM-10 nonattainment area be divided at the

boundary between State lands and the Fort Hall Indian Reservation. As

discussed in the proposal, EPA learned after submission of the State's

request that a small portion of the FMC facility is located on State

lands. See 63 FR 3360. In the proposal, EPA considered the fact that

the FMC sources located within the Power-Bannock Counties PM-10

nonattainment area but outside the exterior boundaries of the Fort Hall

Indian Reservation on State lands

[[Page 59729]]

accounted for less than 1% of all of FMC's PM-10 emissions and did not

appear to contribute to the violations that have been recorded on the

Tribal monitors. EPA stated it believed it was appropriate to split the

nonattainment area at the State-Reservation boundary despite this new

information. EPA specifically requested comment, however, on whether it

would be preferable to split the current Power-Bannock Counties PM-10

nonattainment area at the State-Reservation boundary, except to include

in the Fort Hall PM-10 nonattainment area that portion of the FMC

facility located on State lands.

Both the State and FMC commented on this issue. The State advised

EPA it would be comfortable with either approach. FMC stated that it

was equally unhappy with either approach. FMC went on to state that

either approach would necessitate two implementation plans (i.e., a SIP

and a FIP/TIP). EPA disagrees that splitting the nonattainment area,

either along the State-Reservation boundary or including all of the FMC

facility in the Fort Hall nonattainment area, will result in any more

implementation plans than if the area remains as one nonattainment

area. In all events, the State must submit a SIP revision to address

the previous deficiencies in the State's 1993 PM-10 SIP covering State

lands. The State's plan must address that portion of the FMC facility

on State lands, regardless of whether that portion of the FMC facility

is located in the Power-Bannock Counties PM-10 nonattainment area, the

Fort Hall PM-10 nonattainment area, or the Portneuf Valley PM-10

nonattainment area. EPA and the Tribes will promulgate Federal

Implementation Plans and Tribal Implementation Plans covering lands

within the exterior boundaries of the Fort Hall Indian Reservation.

After considering the comments of the State and FMC on this issue,

EPA continues to believe it is preferable to split the nonattainment

area along the State-Reservation boundary. Apart from the technical air

quality information, the fact that the existing Power-Bannock Counties

PM-10 nonattainment area encompasses two regulatory jurisdictions is a

major additional reason why EPA has decided to grant the State's

request to split the nonattaiment area. EPA therefore believes it is

more appropriate to split the nonattainment areas in a manner that

respects this jurisdictional distinction.

III. Final Action

By this action, the existing Power-Bannock Counties PM-10

nonattainment area is divided into two nonattainment areas that

together cover the identical geographic area of the existing

nonattainment area. The revised areas will be divided at the boundary

between State lands and the Fort Hall Indian Reservation, with one

revised area, referred to as the ``Portneuf Valley PM-10 nonattainment

area,'' consisting of State lands, and the other revised area, referred

to as the ``Fort Hall PM-10 nonattainment area,'' consisting of lands

within the exterior boundaries of the Fort Hall Indian Reservation.

Both the Portneuf Valley PM-10 nonattainment area and the Fort Hall PM-

10 nonattainment area will retain designations as PM-10 nonattainment

areas and a classification of moderate as a result of this action.

IV. Administrative Requirements

A. Executive Order (E.O.) 12866

Under Executive Order 12866, 58 FR 51735 (October 4, 1993), the

Agency must determine whether the regulatory action is ``significant''

and therefore subject to Office of Management and Budget (OMB) review

and the requirements of the Executive Order. The Order defines

``significant regulatory action'' as one that is likely to result in a

rule that may: (1) 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; (2) create a serious inconsistency or otherwise interfere

with an action taken or planned by another agency; (3) materially alter

the budgetary impact of entitlements, grants, user fees, or loan

programs or the rights and obligations of recipients thereof; or (4)

raise novel legal or policy issues arising out of legal mandates, the

President's priorities, or the principles set forth in the Executive

Order.

The OMB has exempted this action from review under E.O. 12866. In

addition, the Agency has determined that an action revising the

designation of an area by creating two separate nonattainment areas

under section 107(d)(3) of the CAA results in none of the effects

identified in E.O. 12866 as constituting a significant regulatory

action. The revised designations together cover the same geographic

area and the same sources as the original designation and the

classification of the areas remains unchanged by this action.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act (RFA), 5 U.S.C. Sec. 601 et

seq., EPA must prepare a regulatory flexibility analysis assessing the

impact of any proposed or final rule on small entities unless EPA

certifies that the rule will not have a significant economic impact on

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. A regulatory

flexibility screening of this action revealed that it would not have a

significant adverse economic impact on a substantial number of small

entities. An action revising the designation of an area by creating two

separate nonattainment areas under section 107(d)(3) of the CAA is an

action affects only the boundary of the geographic area. The revised

designations together cover the same geographic area and the same

sources as the original designation and the classification of the areas

remains unchanged by this action. Therefore, this action does not

impose any new requirements on small entities. 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). To the extent that a State, Tribe or EPA

must adopt new regulations, based on an area's nonattainment status,

EPA will review the effect those actions have on small entities at the

time EPA takes action on those regulations. Therefore, pursuant to 5

U.S.C. 605(b), EPA certifies that today's action does not have a

significant economic impact on a substantial number of small entities

within the meaning of those terms for RFA purposes.

C. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.

L. 04-4, establishes requirements for Federal agencies to assess the

effects of their regulatory actions on State, local, and Tribal

governments and the private sector. Under section 202 of UMRA, EPA

generally must prepare a written statement, including a cost-benefit

analysis, when EPA promulgates ``any general notice of proposed

rulemaking that is likely to result in promulgation of any rule that

includes any Federal mandate that may result in the expenditures by

State, local, and Tribal governments, in the aggregate, or by the

private sector, of $100 million or more'' in any one year. A ``Federal

mandate'' is defined, under section 101 of UMRA,

[[Page 59730]]

as a provision that ``would impose an enforceable duty'' upon the

private sector or State, local, or Tribal governments,'' with certain

exceptions not here relevant. Under section 203 of UMRA, EPA must

develop a small government agency plan before EPA ``establish[es] any

regulatory requirements that might significantly or uniquely affect

small governments.'' Under section 204 of UMRA, EPA is required to

develop a process to facilitate input by elected officers of State,

local, and Tribal governments for EPA's ``regulatory proposals'' that

contain significant Federal intergovernmental mandates. Under section

205 of UMRA, before EPA promulgates ``any rule for which a written

statement is required under [UMRA section] 202,'' EPA must identify and

consider a reasonable number of regulatory alternatives and either

adopt the least costly, most cost-effective or least burdensome

alternative that achieves the objectives of the rule, or explain why a

different alternative was selected.

EPA has determined that this action does not include a Federal

mandate that may result in the expenditures by State, local, and Tribal

governments, in the aggregate, or by the private sector, of $100

million or more in any one year. An action revising the designation of

an area by creating two separate nonattainment areas under section

107(d)(3) of the CAA is an action affects only the boundary of the

geographic area. The revised designations together cover the same

geographic area and the same sources as the original designation and

the classification of the areas remains unchanged by this action.

Therefore, this action does not impose any new requirements on the

State of Idaho, the Shoshone-Bannock Tribes, or the private sector.

Accordingly, EPA has determined that this action 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. Consequently, sections 202, 204, and 205 of UMRA

do not apply to today's action, and EPA is therefore not required to

and has not taken any actions to meet the requirements of these

sections of UMRA. With respect to section 203 of UMRA, EPA has

concluded that this action includes no regulatory requirements that

will significantly or uniquely affect small governments, because it

imposes no requirements on them. Nevertheless, during the development

of the proposal for this action, EPA held several meetings with

representatives of the Shoshone-Bannock Tribes to discuss the

requirements of, and receive input regarding, this action.

D. Submission to Congress and the General Accounting Office

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1966, 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. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

E. 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 (1) is determined to be ``economically significant'' as that

term is defined in E.O. 12866, and (2) concerns an environmental health

or safety risk that EPA has reason to believe may have 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 final action is not subject to E.O. 13045 because it is not an

economically significant rule as defined by E.O. 12866. In addition, it

does not involve decisions based on environmental health or safety

risks because these decisions were made at the time EPA promulgated the

PM-10 NAAQS. Today's action does not change the health standard set by

the NAAQS.

F. Executive Order 12875: Enhancing the Intergovernmental Partnership

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a State, local

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected State, local and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of State, local and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's action does not create a mandate on State, local or tribal

governments and does not impose any enforceable duties on these

entities. An action revising the designation of an area by creating two

separate nonattainment areas under section 107(d)(3) of the CAA is an

action affects only the boundary of the geographic area and does not

impose any regulatory requirements. The revised designations together

cover the same geographic area and the same sources as the original

designation and the classification of the areas remains unchanged by

this action. Accordingly, the requirements of section 1(a) of Executive

Order 12875 do not apply to this rule.

G. Executive Order 13084: Consultation and Coordination With Indian

Tribal Governments

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected and other representatives of

Indian tribal governments ``to provide meaningful and timely input in

the development of regulatory policies on matters that significantly or

uniquely affect their communities.''

[[Page 59731]]

Today's action does not impose substantial direct compliance costs

on the communities of Indian tribal governments. An action revising the

designation of an area by creating two separate nonattainment areas

under section 107(d)(3) of the CAA is an action affects only the

boundary of the geographic area and does not impose any regulatory

requirements. The revised designations together cover the same

geographic area and the same sources as the original designation and

the classification of the areas remains unchanged by this action.

Accordingly, the requirements of section 3(b) of Executive Order 13084

do not apply to this rule. In taking this action, EPA consulted with

representatives of the Shoshone-Bannock Tribes to permit them to have

meaningful and timely input into its development. Prior to issuing the

proposal to split the Power-Bannock Counties PM-10 nonattainment area,

EPA met on three occasions with representatives of the Shoshone-Bannock

Tribes to discuss the basis for and consequences of splitting the

nonattainment area and to hear the Tribe's concerns with splitting the

nonattainment area. EPA also had several telephone conferences with

representatives of the Shoshone-Bannock Tribes to learn of the Tribes'

concerns prior to the proposal. In addition, EPA provided public notice

and an opportunity for comment on EPA's proposal to split the Power-

Bannock Counties PM-10 nonattainment area a 30 day prior to this

action. The Tribes' concerns and EPA's response to those concerns are

discussed in the proposal, 63 FR 33602-33603, and in Section II of this

notice.

H. National Technology Transfer and Advancement Act of 1995 (NTTAA)

Section 12(d) of NTTAA, Pub. L. No. 104-113, Section 12(d) (15

U.S.C. 272 note) directs EPA to use voluntary consensus standards in

its regulatory activities unless to do so would be inconsistent with

applicable law or otherwise impractical. Voluntary consensus standards

are technical standards (e.g., materials specifications, test methods,

sampling procedures, business practices) that are developed or adopted

by voluntary consensus standards bodies. The NTTAA directs EPA to

provide Congress, through OMB, explanations when the Agency decides not

to use available and applicable voluntary standards.

An action revising the designation of an area by creating two

separate nonattainment areas under section 107(d)(3) of the CAA does

not establish technical standards. Therefore, this action is not

subject to the NTTAA.

I. Petitions for Judicial Review

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 January 4, 1999. 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: October 30, 1998.

Chuck Clarke,

Regional Administrator, Region 10.

PART 81--[AMENDED]

1. The authority citation for part 81 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

2. In Sec. 81.313, the table entitled ``Idaho--PM-10'' is amended

by revising the entry for ``Power-Bannock Counties, part of:

(Pocatello)'' to read as follows:

Sec. 81.313 Idaho.

* * * * *

Idaho--PM-10

----------------------------------------------------------------------------------------------------------------

Designation Classification

Designated area -------------------------------------------------------------------------------

Date Type Date Type

----------------------------------------------------------------------------------------------------------------

* * * * * *

*

Power-Bannock Counties, part of:

(Pocatello):

State Lands

Portneuf Valley Area.... 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.

Power-Bannock Counties, part of:

(Pocatello):

Fort Hall Indian 11/15/90 Nonattainment..................... 11/15/90 Moderate.

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.

* * * * * *

*

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[[Page 59732]]

[FR Doc.98-29663 Filed 11-4-98; 8:45 am]

BILLING CODE 6560-50-P