[Federal Register Volume 75, Number 92 (Thursday, May 13, 2010)]
[Proposed Rules]
[Pages 26898-26904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11139]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R10-OAR-2008-0391; FRL-9149-5]


Determination of Attainment for PM-10; Fort Hall PM-10 
Nonattainment Area, Idaho

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing under the Clean Air Act (CAA) to determine 
that the Fort Hall PM-10 nonattainment area on the Fort Hall Indian 
Reservation in Idaho has attained the National Ambient Air Quality 
Standards (NAAQS) for particulate matter with an aerodynamic diameter 
of less than or equal to 10 microns (PM-10). EPA's proposed finding 
that the Fort Hall PM-10 nonattainment area has attained the 24-hour 
PM-10 NAAQS is based on EPA's review of complete, quality-assured 
monitored air quality data for the three-year period ending December 
31, 2009. Preliminary data for 2010 indicate that the area continues to 
attain the standard.
    EPA's proposed determination of attainment is not equivalent to a 
proposed redesignation to attainment under CAA section 107(d)(3). If 
this proposal is finalized, the designation status for the Fort Hall 
PM-10 nonattainment area would remain moderate nonattainment until such 
time as the area is redesignated to attainment as provided in CAA 
section 107(d)(3).

DATES: Written comments must be received on or before June 14, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2008-0391, by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E- Mail: <a href="/cdn-cgi/l/email-protection#aefc9f9e83fedbccc2c7cdf1edc1c3c3cbc0daddeecbdecf80c9c1d8"><span class="__cf_email__" data-cfemail="772546475a2702151b1e142834181a1a121903043712071659101801">[email protected]</span></a>.
    C. Mail: Donna Deneen, U.S. Environmental Protection Agency, Region 
10, 1200 Sixth Avenue, Suite 900, Mail Stop: AWT-107, Seattle, WA 
98101.
    D. Hand Delivery: U.S. Environmental Protection Agency, Region 10, 
Attn: Donna Deneen (AWT-107), 1200 Sixth Avenue, Suite 900, Seattle, 
Washington 98101, 9th Floor. Such deliveries are only accepted during 
normal hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R10-OAR-
2008-0391. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment.

[[Page 26899]]

If you send an e-mail comment directly to EPA without going through 
http://www.regulations.gov, your e-mail address will be automatically 
captured and included as part of the comment that is placed in the 
public docket and made available on the Internet. If you submit an 
electronic comment, EPA recommends that you include your name and other 
contact information in the body of your comment and with any disk or 
CD-ROM you submit. If EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your comment. Electronic files should avoid the use of 
special characters, any form of encryption, and be free of any defects 
or viruses.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information, i.e., CBI or other information whose disclosure is 
restricted by statute, is not publicly available. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically in 
http://www.regulations.gov or in hard copy during normal business hours 
at the Office of Air, Waste and Toxics, U.S. Environmental Protection 
Agency, Region 10, 1200 Sixth Avenue, Suite 900, Seattle, Washington 
98101.

FOR FURTHER INFORMATION CONTACT: Donna Deneen, (206) 553-6706 or 
<a href="/cdn-cgi/l/email-protection#3f5b5a515a5a51115b5051515e7f5a4f5e11585049"><span class="__cf_email__" data-cfemail="3c58595259595212585352525d7c594c5d125b534a">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this notice, the words ``we'', 
``us'', or ``our'' means the Environmental Protection Agency (EPA).

Table of Contents

I. Background
    A. PM-10 Standard
    B. Fort Hall PM-10 Nonattainment Area
    C. PM-10 Planning in the Fort Hall PM-10 Nonattainment Area
    D. Attainment Date for the Fort Hall PM-10 Nonattainment Area
    E. Reclassification Upon Failure to Attain
    F. Portneuf Environmental Council (PEC) Lawsuit
    G. Sierra Club Lawsuit
II. Proposed Attainment Determination
    A. What are the Requirements for Attainment Determinations?
    B. What Monitoring Data are Available for the Area?
    C. What Do the Air Quality Data Show for the Area?
    D. Determination of Attainment
III. Proposed Action
    A. Proposed Determination of Attainment
    B. Withdrawal of June 19, 1998 Proposal
IV. Statutory and Executive Order Reviews

I. Background

A. PM-10 Standard

    The NAAQS are levels for certain ambient air pollutants set by EPA 
to protect public health and welfare. PM-10, or particulate matter with 
an aerodynamic diameter less than or equal to a nominal 10 micrometers, 
is among the ambient air pollutants for which EPA has established 
health-based standards. On July 1, 1987 (52 FR 24634), EPA promulgated 
two primary standards for PM-10: a 24-hour standard of 150 micrograms 
per cubic meter ([mu]g/m\3\) and an annual PM-10 standard of 50 [mu]g/
m\3\. EPA also promulgated secondary PM-10 standards that were 
identical to the primary standards.
    Effective December 18, 2006, EPA revoked the annual PM-10 standard 
but retained the 24-hour PM-10 standard. 71 FR 61144 (October 17, 
2006). The 24-hour PM-10 standard is attained when the expected number 
of days per calendar year with a 24-hour concentration above 154 [mu]g/
m\3\, as determined in accordance with 40 CFR part 50, appendix K, is 
equal to or less than one.\1\ 40 CFR 50.6 and 40 CFR part 50, appendix 
K.
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    \1\ An exceedance is defined as a daily value that is above the 
level of the 24-hour standard (150 [mu]g/m\3\) after rounding to the 
nearest 10 [mu]g/m\3\ (i.e. values ending in 5 or greater are to be 
rounded up). Thus, a recorded value of 154 [mu]g/m\3\ would not be 
an exceedance since it would be rounded to 150[mu]/m\3\ whereas a 
recorded value of 155 [mu]g/m\3\ would be an exceedance since it 
would be rounded to 160 [mu]/m\3\. See 40 CFR part 50, appendix K, 
section 1.0.
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B. Fort Hall PM-10 Nonattainment Area

    On August 7, 1987 (52 FR 29383), EPA identified a number of areas 
across the country as PM-10 ``Group I'' areas of concern, that is, 
areas with a 95% or greater likelihood of violating the PM-10 NAAQS and 
requiring substantial planning efforts. What is now known as the Fort 
Hall PM-10 nonattainment area was originally part of a Group I area 
called ``Power-Bannock Counties (Pocatello).'' In accordance with 
section 188(a) and (c)(1) of the CAA, at the time of designation all 
PM-10 nonattainment areas were initially classified as ``moderate'' by 
operation of law, with an attainment date of December 31, 1994. See 
also 56 FR 11101 (March 15, 1991).
    This original nonattainment area has gone through two boundary 
changes. First, on June 12, 1995, EPA corrected the ``Power-Bannock 
Counties (Pocatello)'' boundaries to more closely represent the air 
shed in which the City of Pocatello is located. 61 FR 29667. Second, on 
November 5, 1998, EPA granted a request from the State of Idaho to 
divide the nonattainment area (as corrected) into two areas separated 
by the Fort Hall Indian Reservation boundary. 63 FR 59722. The area 
consisting of land under State jurisdiction that was previously part of 
the Power-Bannock Counties nonattainment area was renamed as the 
Portneuf Valley nonattainment area. The Portneuf Valley nonattainment 
area was redesignated to attainment on July 13, 2006 (71 FR 39574). The 
area consisting of land within the exterior boundary of the Fort Hall 
Indian Reservation that was previously part of the Power-Bannock 
Counties nonattainment area is now identified as the Fort Hall PM-10 
nonattainment area. See 40 CFR 81.313. Today's proposal applies only to 
the Fort Hall PM-10 nonattainment area.

C. PM-10 Planning in the Fort Hall PM-10 Nonattainment Area

    In the early 1990s, EPA, the Shoshone-Bannock Tribes (Tribes), and 
the Idaho Department of Environmental Quality (IDEQ) began to work 
together to prepare the technical elements needed to bring the area 
into attainment with the PM-10 NAAQS. Air quality and other information 
from the 1980s and 1990s indicated that the elemental phosphorous 
facility located on fee lands within the Fort Hall PM-10 nonattainment 
area and owned and operated by FMC Corporation (FMC facility) \2\ was 
the primary cause of the PM-10 nonattainment problem in the Fort Hall 
nonattainment area. To address this nonattainment problem, EPA 
promulgated a Federal Implementation Plan for PM-10 emissions from the 
FMC facility in August 2000 (FMC FIP) under the authority of section 
301(a) and (d)(4) of the CAA and 40 CFR 49.11(a). See 65 FR 51412 
(August 23, 2000). The FMC FIP contained PM-10 emission limits and work 
practice, recordkeeping, and reporting requirements designed to reduce 
PM-10 emissions from the FMC facility to a level that would attain the 
PM-10 standard.
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    \2\ The property on which the FMC was located is now owned by 
FMC Idaho, LLC (FMC).
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    In December 2001, after operating under the FMC FIP for 
approximately one year, the FMC facility ceased producing elemental 
phosphorous from phosphate ore. The buildings and process equipment on 
the property have since been decontaminated and demolished and the 
construction debris has been taken off-site. Removal of all point 
sources identified in the FMC FIP was completed in November 2006. The 
storage piles specifically identified in

[[Page 26900]]

the FIP have been taken off-site or placed below grade and planted 
over. In a letter dated November 1, 2007, EPA advised the Shoshone-
Bannock Tribes of EPA's view that there no longer are any sources 
subject to the FMC FIP because the FMC FIP applies to the owner or 
operator of an ``elemental phosphorous facility'' and because there is 
no longer an ``elemental phosphorous facility'' located on the FMC 
property. All sources in the Fort Hall nonattainment area, however, are 
subject to the Federal Air Rules for Reservations (FARR) for Indian 
reservations in Idaho, Oregon, and Washington, which are air quality 
regulations designed to protect health and welfare on Indian 
reservations located in the Pacific Northwest, including the Fort Hall 
Indian Reservation. See 67 FR 18074 (April 8, 2005) (codified at 40 CFR 
49.121 to 49.139).

D. Attainment Date for the Fort Hall PM-10 Nonattainment Area

    As discussed above, the original attainment date for the Fort Hall 
nonattainment area was December 31, 1994. Section 188(d) authorizes the 
EPA Administrator to grant up to two one-year extensions of the 
moderate area attainment date, provided certain requirements are met. 
Because the area was not attaining the PM-10 NAAQS at the time of the 
December 31, 1994 attainment date, and finding that the area met the 
requirements for an extension, EPA granted a request for a one-year 
extension and extended the attainment date to December 31, 1995. See 61 
FR 20730 (May 8, 1996). The area continued to violate the 24-hour PM-10 
standard through December 31, 1995. After finding that the area met the 
requirements for a second extension, EPA granted a second one-year 
extension of the attainment date to December 31, 1996. See 61 FR 66602 
(December 18, 1996).\3\
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    \3\ At the time of the extensions, the Fort Hall PM-10 
nonattainment area was still part of the Power-Bannock County 
nonattainment area.
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E. Reclassification Upon Failure to Attain

    Section 188(b)(2) of the CAA requires EPA to determine within six 
months of the applicable attainment date whether PM-10 nonattainment 
areas attained the PM-10 NAAQS by the attainment date. Under Section 
188(b)(2)(A), a moderate PM-10 nonattainment area is reclassified as 
serious by operation of law if EPA finds that the area was not in 
attainment by the applicable attainment date. Section 188(b)(2)(B) of 
the CAA states that EPA shall publish a notice in the Federal Register 
within six months after the applicable attainment date identifying 
those areas that failed to attain the standard and that have been 
reclassified to serious by operation of law.

F. Portneuf Environmental Council (PEC) Lawsuit

    On November 20, 1997, the Portneuf Environmental Council (PEC) 
filed a lawsuit against EPA, alleging that EPA had failed to make a 
finding regarding whether the Fort Hall PM-10 nonattainment area \4\ 
had attained the PM-10 NAAQS by the December 31, 1996, extended 
attainment date, as required by CAA section 188(b)(2)(A). Subsequently, 
EPA published a Federal Register notice on June 18, 1998, in which EPA 
proposed to find that the Fort Hall PM-10 nonattainment area had failed 
to attain the PM-10 NAAQS by the applicable attainment date of December 
31, 1996. See 63 FR 33605 (June 19, 1998).
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    \4\ At the time of the lawsuit, the Fort Hall PM-10 
nonattainment area was still part of the Power-Bannock County 
nonattainment area.
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    As part of a subsequent settlement with PEC, PEC agreed to dismiss 
its lawsuit against EPA provided that EPA promulgated no later than 
July 31, 2000 a Federal Implementation Plan to control PM-10 in the 
Fort Hall PM-10 nonattainment area. EPA fulfilled its obligation to 
promulgate the FMC FIP, and did not take final action on the June 19, 
1998 proposal regarding the attainment status for the area.

G. Sierra Club Lawsuit

    On September 14, 2000, Sierra Club and Group Against Smog and 
Pollution, Inc. (jointly referred to as ``Sierra Club'') filed suit 
against EPA alleging that EPA had failed to carry out its statutory 
obligations with respect to certain nonattainment areas throughout the 
United States. The complaint included a claim that EPA had failed to 
make a finding regarding whether the Fort Hall nonattainment area had 
attained the PM-10 NAAQS by the extended attainment date of December 
31, 1996, as required by CAA section 188(b)(2)(A). The Sierra Club 
subsequently agreed in a Consent Decree in settlement of its lawsuit to 
give EPA until July 31, 2004 to determine whether the Fort Hall area 
had attained the PM-10 standard. The Consent Decree provided that if 
EPA was not able to determine that the Fort Hall area had attained the 
PM-10 standard by July 31, 2004, EPA had to determine that the area had 
not attained the standard by December 31, 1996 (the extended attainment 
date for the area), which would result in reclassification of the area 
to serious nonattainment. EPA expected that the FMC FIP, which was 
promulgated just prior to the Sierra Club's lawsuit, would be effective 
in bringing the Fort Hall PM-10 nonattainment area into attainment of 
the PM-10 NAAQS.
    Subsequent amendments to the Consent Decree gave EPA additional 
time to make a determination of attainment or nonattainment for the 
area. Under the terms of the most recent amendment to the Consent 
Decree with Sierra Club, EPA is required to sign a notice for 
publication in the Federal Register by August 31, 2010, containing 
either EPA's final determination that the Fort Hall nonattainment area 
has attained the PM-10 NAAQS or EPA's final determination that the area 
did not attain the PM-10 NAAQS by the applicable attainment date of 
December 31, 1996, and identifying the appropriate reclassification of 
the area pursuant to 42 U.S.C. 7513(b)(2)(A).

II. Proposed Attainment Determination

A. What are the requirements for attainment determinations?

    Generally, EPA determines whether an area's air quality is meeting 
the PM-10 NAAQS based upon complete, quality-assured data gathered at 
established state and local air monitoring stations (SLAMS) and 
national air monitoring stations (NAMS) in the nonattainment areas and 
entered into the EPA Air Quality System (AQS). Data from air monitors 
operated by state/local/tribal agencies in compliance with EPA 
monitoring requirements must be submitted to AQS. EPA relies primarily 
on data in AQS when determining the attainment status of an area. See 
40 CFR 50.6; 40 CFR part 50, appendix J; 40 CFR part 53; 40 CFR part 
58, appendix A. EPA will also consider air quality data from other air 
monitoring stations in the nonattainment area provided that the 
stations meet the federal monitoring requirements for SLAMS, including 
the quality assurance and quality control criteria in 40 CFR part 58, 
appendix A. 40 CFR 58.14 (2006) and 58.20 (2007); \5\ 71 FR 61236, 
61242 (October 17, 2006). All valid data are reviewed to determine the 
area's air quality status in

[[Page 26901]]

accordance with 40 CFR part 50, appendix K.
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    \5\ EPA promulgated amendments to the ambient air monitoring 
regulations in 40 CFR parts 53 and 58 on October 17, 2006. See 71 FR 
61236. The requirements for Special Purpose Monitors were revised 
and moved from 40 CFR 58.14 to 40 CFR 58.20.
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    Attainment of the 24-hour PM-10 standard is determined by 
calculating the expected number of exceedances of the standard in a 
year. The 24-hour standard is attained when the expected exceedances 
averaged over a three-year period is less than or equal to one. 
Generally, three consecutive years of air quality data are required to 
show attainment of the 24-hour PM-10 standard. See 40 CFR part 50 and 
appendix K.\6\
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    \6\ Because the annual PM-10 standard was revoked effective 
December 18, 2006, see 71 FR 61144 (October 17, 2006), this notice 
discusses only attainment of the 24-hour PM-10 standard.
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B. What monitoring data are available for the area?

    In 1994 the Tribes requested and EPA granted the Tribes program 
support grant funds to enable the Tribes to establish their own 
monitoring station to collect ambient air quality data representative 
of conditions on the Fort Hall Indian Reservation and to generate data 
to support Tribal air quality planning efforts.\7\ The first Tribal 
monitor, located at the ``Sho-Ban site,'' was a Federal Reference 
Monitor (FRM) that became operational in February 1995. The Sho-Ban 
site was located approximately 100 feet north of the FMC facility 
across a frontage road. Because of operational problems, this monitor 
did not begin to collect valid data until October 1996. Also in October 
1996, the Tribes initiated monitoring at two new sites. The ``primary 
site'' contained an FRM located approximately 100 feet north of the FMC 
facility across the frontage road, approximately 600 feet east of the 
Sho-Ban site. There were two filter-based FRMs located at the primary 
site: The primary FRM and a co-located audit FRM for quality assurance 
purposes. Both the Sho-Ban and primary sites were located in the 
general area of expected maximum concentrations of PM-10 in the ambient 
air at the time the FMC facility was in operation. The ``background 
site'' was an FRM site located approximately one and one-half miles 
southwest of the FMC facility, upwind of the predominant wind direction 
from FMC. All three monitoring sites met EPA SLAMS network design and 
siting requirements set forth at 40 CFR part 58, appendices D and E.
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    \7\ Prior to this time, the Tribes relied on data from State-
operated samplers on State lands for area designations and 
classifications.
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    Because the data reported at the background site over a number of 
years remained constant, with no discernible trends, both the Tribes 
and EPA determined that background PM-10 concentrations were adequately 
characterized. Therefore, to conserve resources, the Tribes and EPA 
agreed to terminate operation of the FRM at the background site in 
early 2000. Sampling ended at the Sho-Ban site at the end of March 2003 
because the FMC facility had ceased production and, given the close 
proximity of the Sho-Ban and primary monitoring sites, the 
comparability of the data between the two sites, and a continued 
interest in conserving resources, a single monitoring location was 
considered sufficient to identify any remaining air quality concerns in 
the area. The primary FRM and the audit FRM at the primary site 
remained in operation through December 31, 2009, with the primary FRM 
operating once every three days and the co-located audit FRM operating 
once every six days, or once every three days, depending on whether or 
not additional co-located data were needed to meet certain federal 
monitoring requirements.\8\
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    \8\ At times a higher sampling frequency may be needed in order 
to produce approximately 25 valid sample pairs per year. 40 CFR part 
58 Appendix A, section 3.3.1.3.
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    In addition to the primary and audit filter-based FRMs, from 
November 1998 through September 2008, a continuous PM-10 sampler, 
called a Tapered Element Oscillating Microbalance monitor (TEOM), also 
operated at the primary site. Whereas it generally takes a minimum of 
several weeks to obtain PM-10 data from a filter-based FRM,\9\ a TEOM 
monitors PM-10 levels on a continuous basis and provides real-time data 
on PM-10 levels in an area. This TEOM monitor was shut down in 
September 2008 because of a bad pump and other operational problems and 
replaced by another type of continuous sampler, called a Beta 
Attenuation Mass monitor (BAM). The BAM was installed at the primary 
site at the beginning of 2009, but because of start-up problems, did 
not begin to collect valid data until the fall of 2009.
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    \9\ FRMs are manual samplers that pull air through a filter for 
24 hours (midnight to midnight). The filters are then weighed in a 
lab and a PM concentration is calculated based on the mass increase 
of the filter and the volume of air drawn through it.
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    In 2008, an additional filter-based PM-10 monitor began operating 
in the Fort Hall PM-10 nonattainment area. This FRM monitor operates at 
the ``Ballard site,'' which is located approximately 6 miles north of 
the primary site and is closer than the primary site to the population 
center of the Fort Hall PM-10 nonattainment area. The Ballard site was 
established because of concerns that the primary site property might no 
longer remain available for monitoring. With those concerns in mind, a 
saturation study was conducted by the Tribes and EPA prior to the 
establishment of the Ballard site to determine the correlation of 
monitoring data between the primary site and several potential 
alternate sites. The potential alternate sites represented locations 
that were as close to the primary site as possible and to which the 
Tribes had access. Temporary monitors were placed at these locations 
and operated in the late summer and early fall of 2006. The study 
showed that there was good correlation of data between the primary site 
and several of the potential alternate site locations and that the 
Ballard site was particularly desirable because a site pad and deck 
were already established at that location.\10\ In light of the results 
from the study, the relative proximity of the Ballard site to the 
population center of the nonattainment area, and the lack of access to 
property closer to the primary site, the Ballard site was selected as 
an alternate site to the primary site. On April 21, 2008, the primary 
FRM at the Ballard site became operational and continues to collect 
data on a once-every-three-day schedule.\11\ Based on a review of 
recent AQS data from April 2008 through January 2010 showing good 
correlation between the Ballard site and the primary site, the fact 
that the Ballard site is closer in proximity to the population center 
of the nonattainment area than the primary site, and the fact that the 
FMC facility is no longer operating as an elemental phosphorous 
facility, EPA believes that the Ballard monitoring site is 
representative of PM-10 levels in the Fort Hall nonattainment area.
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    \10\ Memo from Chris Hall to Donna Deneen, dated January 19, 
2007, regarding Fort Hall PM-10 Saturation Study.
    \11\ AQS raw data report for the Ballard site for 2010.
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    Data collection at the primary site ended on December 31, 2009 
because the property owner would not renew the lease. At the request of 
the property owner, all monitoring and associated equipment was removed 
from the primary site, and beginning on January 1, 2010, the Ballard 
site became the only PM-10 monitoring site in the nonattainment area. 
To meet monitoring network requirements, one of the FRMs from the 
primary site was moved to the Ballard site and began operating as an 
audit FRM in January 2010. The BAM from the primary site was moved to 
the Ballard site and began operating in

[[Page 26902]]

April 2010. PM-10 monitoring for the Fort Hall PM-10 nonattainment area 
continues at the Ballard site, with the PM-10 BAM operating daily, and 
both the primary FRM and the audit FRM collecting data on a once-every-
three-day schedule.

C. What do the air quality data show for the area?

    The number of PM-10 exceedances in the Fort Hall PM-10 
nonattainment area has dropped substantially since the area was 
designated nonattainment in the early 1990s. There were 16 exceedances 
recorded at the primary site in 1997, the first full year of monitoring 
for the area. The number of exceedances had decreased to four in 1999, 
when FMC began installing some control equipment and implementing some 
emission reduction measures in anticipation of promulgation of the FMC 
FIP.\12\ By 2001, the first full year the FMC FIP was in place and the 
final year the FMC facility was fully operational, there were no 
exceedances recorded on the FRMs and three exceedances recorded on the 
TEOM. Beginning in 2002, the first year after the FMC facility ceased 
production, the FRMs at the primary site reported one exceedance of the 
24-hour PM-10 standard in 2002 and one in 2006.\13\ The TEOM at the 
primary site, which operated every day, recorded one exceedance per 
year in each of 2002, 2004, 2005, and 2006, and three in 2008. All of 
the exceedances that have been recorded since FMC ceased production of 
elemental phosphorous in December 2001 occurred on days with sustained 
winds of more than 20 mph for several hours. The exceedances in the 
relevant data years for this determination are discussed more fully in 
section D below.
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    \12\ Table dated April 26, 2010, summarizing the number of 
exceedances of the 24-hour PM-10 standard in the Fort Hall 
nonattainment area since 1997.
    \13\ Although EPA believes the data collected at the FRMs and 
TEOM from 2004 through 2006 are generally indicative of air quality 
in the Fort Hall PM-10 nonattainment area, they did not meet all 
quality assurance/quality control (QA/QC) requirements and therefore 
may not be used to determine whether or not the Fort Hall area is in 
attainment with the 24-hour PM-10 standard. See 40 CFR 58.11(a) and 
58.20; 71 FR 61242 (October 17, 2006); see also 40 CFR 58.14 (2006).
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D. Determination of Attainment

    As discussed above, section 188(b)(2) of the CAA requires EPA to 
determine within six months of the applicable attainment date whether 
the Fort Hall PM-10 nonattainment area attained the PM-10 NAAQS by the 
extended attainment date of December 31, 1996. Under the terms of the 
most recent amendment to the Consent Decree with Sierra Club, EPA is 
required to sign a notice for publication in the Federal Register by 
August 31, 2010 containing either EPA's final determination that the 
Fort Hall PM-10 nonattainment area has attained the PM-10 NAAQS or 
EPA's final determination as to whether the area attained or failed to 
attain the PM-10 NAAQS by the extended attainment date of December 31, 
1996 and identifying the appropriate reclassification of the area 
pursuant to 42 U.S.C. 7513(b)(2)(A).
    EPA is proposing to determine that the area has attained the PM-10 
standard based on the most recent three years of complete, quality-
assured data for 2007-2009. Preliminary data for 2010 also indicate 
that the area continues to attain the standard. EPA regulations require 
that a determination of attainment be based on three consecutive years 
of data that meet the quality assurance and quality control 
requirements of 40 CFR part 58, appendix A. EPA has confirmed that 
complete air quality data in AQS for 2007, 2008, and 2009 meet quality 
assurance and quality control requirements for use in determining 
attainment with the 24-hour PM-10 standard.
    For calendar years 2007 through 2009, the data recorded for the 
Fort Hall PM-10 nonattainment area show generally low levels of PM-10, 
with 99 percent of the daily average concentrations below 83 [mu]g/m\3\ 
(less than two-thirds of the standard) and annual average PM-10 
concentrations of 23 [mu]g/m\3\, 28 [mu]g/m\3\ and 19 [mu]g/m\3\ for 
2007, 2008, and 2009, respectively.\14\ There were no exceedances of 
the standard in 2007, three exceedances in 2008, and no exceedances in 
2009.
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    \14\ AQS PM-10 raw data report for primary site and Ballard 
site, 2007-2009.
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    There were no exceedances of the PM-10 standard measured at the 
primary site filter-based FRM monitors or at the Ballard site. Table 1 
identifies all the monitors that were operating in the Fort Hall 
nonattainment area during the 2007 through 2009 period, and the number 
of PM-10 exceedances recorded at each.

  Table 1--Number of Exceedances of the 24-Hour PM-10 Standard in the Fort Hall PM-10 Nonattainment Area From January 1, 2007 Through December 31, 2009
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                                                        Primary site--      Primary site--
                                                          Primary FRM          Audit FRM        Primary site--    Primary site-- BAM  Ballard site-- FRM
                                                         160770011 \a\       160770011 \a\    TEOM 160770011 \b\     160770011 \b\       160050020 \a\
                        Year                           (Data from 01/01/   (Data from 01/01/   (Data from 01/01/   (Data from 09/01/   (Data from 04/21/
                                                      2007 through 12/31/ 2007 through 12/31/ 2007 through 09/23/ 2009 through 12/31/ 2008 through 12/31/
                                                             2009)               2009)               2008)               2009)               2009)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2007................................................                   0                   0                   0                  NA                  NA
2008................................................                   0                   0               \c\ 3                  NA                   0
2009................................................                   0                   0                   0                   0                   0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Every-three-day sampling.
\b\ Continuous monitor.
\c\ Hourly wind speeds of more than 26 mph and sustained hourly wind speeds of more than 20 mph for several hours on the day of each exceedance.

    The calculated number of expected exceedances of the PM-10 standard 
(in days per year) for 2007-2009 is 0.0 for the primary site FRMs, 1.0 
\15\ for the primary site TEOM and BAM,\16\ and 0.0 for the Ballard 
site FRM. Because neither the primary site TEOM and BAM data nor the 
Ballard site FRM data are complete for 2007-2009,\17\ the data from 
these monitors may not be used for a determination of attainment. The 
data from these monitors may, however, be

[[Page 26903]]

used to determine that an area has not attained the standard, a showing 
that is less stringent than a showing that an area has attained the 
standard. In this case, neither the expected exceedance rate of 1.0 
(for the primary site TEOM and BAM) nor the exceedance rate of 0.0 (for 
Ballard site FRM) show that the area has failed to attain the PM-10 
standard,
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    \15\ The value of 1.0 accounts for the three exceedances that 
occurred in 2008.
    \16\ The TEOM and BAM data are combined; the data for these two 
monitors was submitted under the same code in AQS and is considered 
one monitoring record.
    \17\ The primary site TEOM ceased operations on September 23, 
2008, and the replacement primary site BAM did not begin collecting 
valid data until September 1, 2009. The Ballard site FRM did not 
begin operating until April 21, 2008.
---------------------------------------------------------------------------

    The data from the primary site FRMs are complete for 2007-2009 and 
therefore may be used for a determination of attainment. The expected 
exceedance rate of 0.0 for the primary site FRMs is equal to or less 
than the expected exceedance rate of 1.0 that is allowed under the PM-
10 NAAQS. Because complete data from the primary site FRMs show an 
expected exceedance rate equal to or below the PM-10 standard, because 
the other monitors at the primary and Ballard sites show expected 
exceedance rates equal to or less than the PM-10 standard, and because, 
based on data available to date, there have been no additional 
exceedances of the PM-10 standard in the nonattainment area in 2010, 
EPA concludes that the area has met the standard. EPA therefore 
proposes to determine that the Fort Hall PM-10 nonattainment area has 
attained the 24-hour PM-10 NAAQS.\18\
---------------------------------------------------------------------------

    \18\ If this proposal is finalized, and EPA subsequently 
determines, after notice-and-comment rulemaking, that the area no 
longer is attaining the NAAQS, EPA will publish such determination 
in the Federal Register.
---------------------------------------------------------------------------

    EPA has carefully reviewed the monitoring data, meteorological data 
and other available information regarding the exceedances that occurred 
at the TEOM in 2008. The meteorological data for this review came from 
a meteorological station that was co-located with the PM-10 monitors at 
the primary site. Because each of the PM-10 exceedances was recorded on 
a continuous monitor, it is possible to compare hourly PM-10 levels on 
the day of each exceedance with hourly wind speed measured at the 
meteorological station. On all three days when exceedances were 
recorded, hourly spikes in PM-10 levels corresponded to increases in 
hourly wind speeds.\19\ Hourly wind speeds of more than 26 mph and 
sustained hourly wind speeds of more than 20 mph for several hours were 
measured on all three days.
---------------------------------------------------------------------------

    \19\ Memo from Donna Deneen to the Fort Hall Docket, dated April 
26, 2010, regarding PM-10 Exceedances and Wind Speeds on April 15, 
May 20, and August 26, 2008.
---------------------------------------------------------------------------

    All three exceedances were flagged timely by the Sho-Ban Tribes as 
high wind events under EPA's Exceptional Events Rule (72 FR 13560, 
March 22, 2007). Under EPA's Exceptional Events Rule, EPA may exclude 
data from regulatory determinations related to exceedances or 
violations of the NAAQS if it is adequately demonstrated that an 
exceptional event caused the exceedance or violation. 40 CFR 50.1, 
50.14. In this case, EPA need not determine whether the flagged 
exceedances can be considered as caused by ``exceptional events'' under 
the Exceptional Events Rule. For the purposes of the current attainment 
determination, inclusion of these exceedances does not affect EPA's 
determination of the area's attainment status. In other words, even if 
EPA includes all three days of exceedances monitored at the TEOM in 
2008, the data show that the area attained the PM-10 standard and under 
the existing monitoring record, EPA's proposed determination that the 
area has attained the standard is not dependent on whether the 2008 
exceedances qualify for exclusion under the Exceptional Events Rule. If 
in the future we determine that it is appropriate to evaluate whether 
the exceedances qualify as caused by exceptional events and may be 
excluded from regulatory determinations, we will do so at that time in 
accordance with the Exceptional Events Rule.

III. Proposed Action

A. Proposed Determination of Attainment

    EPA is, by this document, proposing to determine that the Fort Hall 
nonattainment area has attained the 24-hour PM-10 standard, based on 
complete, quality-assured monitoring data for 2007-2009, and data 
available to date for 2010. This proposed finding of attainment is not 
a proposed redesignation to attainment under CAA section 107(d)(3). If 
this proposal is finalized, the designation status in 40 CFR part 81 
for the Fort Hall PM-10 nonattainment area would remain moderate 
nonattainment until such time as the area is redesignated to attainment 
as provided in CAA section 107(d)(3). If this proposal is finalized, 
and EPA subsequently determines after notice and comment rulemaking, 
that the area is no longer attaining the NAAQS, EPA will publish such 
determination in the Federal Register.

B. Withdrawal of June 19, 1998 Proposal

    It has now been twelve years since EPA proposed to make a finding 
of nonattainment for the Fort Hall PM-10 nonattainment area (63 FR 
33605, June 19, 1998). In light of all the changes that have taken 
place over that time, including the promulgation of the FIP, the 
cessation of the production of elemental phosphorous at FMC, the low 
levels of PM-10 recorded in the area, and the consent decree with 
Sierra Club that provides for an attainment determination for the Fort 
Hall PM-10 nonattainment area based on 2007-2009 data, EPA is 
withdrawing its June 19, 1998 proposed rulemaking and issuing this 
proposal in its place. Accordingly, EPA will not be responding to 
comments on the June 19, 1998 proposal. Any person who wishes to 
comment on EPA's proposed finding that the Fort Hall nonattainment area 
attained the 24-hour PM-10 standard as of December 31, 2009 should do 
so at this time.

IV. Statutory and Executive Order Reviews

    This action proposes to make a determination based on air quality 
data, and would, if finalized, not result in the imposition of any 
additional Federal requirements. For that reason, this proposed action:
    <bullet> Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
    <bullet> Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997); is not a significant regulatory action subject 
to Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
    <bullet> Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible

[[Page 26904]]

methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications, as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
proposed rule merely makes a required determination based on air 
quality data and would neither impose substantial direct compliance 
costs on tribal governments, nor preempt tribal law, the requirements 
of sections 5(b) and 5(c) of the Executive Order do not apply to this 
rule. Consistent with EPA policy, EPA nonetheless provided a 
consultation opportunity to the Shoshone-Bannock Tribes in a letter to 
the Chairman of the Fort Hall Business Council, dated January 25, 2010, 
offering the Tribes the opportunity to consult on this determination 
and have meaningful and timely input into this proposed decision. In 
the spirit of Executive Order 13175, and consistent with EPA policy to 
promote communications between EPA and tribal governments, EPA 
specifically solicits additional comment on this proposed rule from 
tribal officials.

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, Intergovernmental 
relations, Particulate matter, Reporting and recordkeeping 
requirements.

    Dated: May 3, 2010.
Dennis J. McLerran,
Regional Administrator, EPA Region 10.
[FR Doc. 2010-11139 Filed 5-12-10; 8:45 am]
BILLING CODE 6560-50-P


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