[Federal Register Volume 63, Number 118 (Friday, June 19, 1998)]
[Proposed Rules]
[Pages 33605-33611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16404]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[ID 22-7002; FRL-6113-3]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to determine that a portion of the Fort Hall 
Indian Reservation has not attained the National Ambient Air Quality 
Standards (NAAQS) for particulate matter with an aerodynamic diameter 
of less than or equal to 10 microns (PM-10) by the applicable 
attainment date for moderate PM-10 nonattainment areas under the Clean 
Air Act (CAA). In a concurrent notice of proposed rulemaking published 
today, EPA has proposed that the existing Power-Bannock Counties PM-10 
nonattainment area, which is currently classified as moderate with an 
attainment date of December 31, 1996,

[[Page 33606]]

be separated into two nonattainment areas at the boundary between State 
lands and the Fort Hall Indian Reservation. If EPA takes final action 
to revise the Power-Bannock Counties PM-10 nonattainment area into two 
nonattainment areas, EPA proposes in this action to find that the PM-10 
nonattainment area within the exterior boundary of the Fort Hall Indian 
Reservation (which EPA has proposed be referred to as the ``Fort Hall 
PM-10 nonattainment area'') has not attained the PM-10 NAAQS by 
December 31, 1996.
    EPA's proposed finding that the proposed Fort Hall PM-10 
nonattainment area has not attained the PM-10 NAAQS by December 31, 
1996, is based on EPA's review of monitored air quality data from 1994 
through 1996. If EPA takes final action on this proposal, the proposed 
Fort Hall PM-10 nonattainment area will be reclassified by operation of 
law as a serious PM-10 nonattainment area.
    EPA recently established a new standard for particulate matter with 
a diameter equal to or less than 2.5 microns and also revised the 
existing PM-10 standards. Today's proposal, however, does not address 
these new and revised standards.

COMMENTS: Comments on this proposal must be received in writing by July 
20, 1998.

ADDRESSES: Written comments should be addressed to Ms. Montel 
Livingston, Environmental Protection Agency, Office of Air Quality (OAQ 
107), Docket ID 22-7002, 1200 6th Avenue, Seattle, WA 98101. 
Information supporting this action is available for inspection during 
normal business hours at the following locations: EPA, Office of Air 
Quality, 1200 Sixth Avenue, Seattle, Washington 98101, and the 
Shoshone-Bannock Tribes, Land Use Commission, Office of Air Quality, 
Fort Hall, Idaho.

FOR FURTHER INFORMATION CONTACT: Steven K. Body, Office of Air Quality, 
EPA Region 10, at the address above, or telephone (206) 553-0782.

SUPPLEMENTARY INFORMATION:

I. Background

A. CAA Requirements and EPA Actions Concerning Designation and 
Classification

    A portion of Power and Bannock Counties in Idaho was designated 
nonattainment for PM-10 <SUP>1</SUP> 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).<SUP>2</SUP> 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 (<greek-m>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 
<greek-m>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.<SUP>3</SUP>
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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.<SUP>4</SUP> 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 <greek-m>g/m3 for the one year period the 
network was in operation. This is 10% greater than the 50 <greek-m>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.<SUP>5</SUP> 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 
(<greek-m>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 <greek-m>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.<SUP>6</SUP> 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 
----------------------------------------------------------------------------------------------------------------
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             
------------------------------------------------------------------------
                                     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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