[Federal Register Volume 63, Number 214 (Thursday, November 5, 1998)]
[Rules and Regulations]
[Pages 59722-59732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29663]


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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.
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------


[[Page 59732]]

[FR Doc.98-29663 Filed 11-4-98; 8:45 am]
BILLING CODE 6560-50-P