[Federal Register Volume 70, Number 24 (Monday, February 7, 2005)]
[Rules and Regulations]
[Pages 6361-6364]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[WA-04-005; FRL-7866-3]


Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes: Washington; Yakima County 
Nonattainment Area Boundary Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency is taking final action to 
correct an error in the initial delineation of the boundary of the 
Yakima County nonattainment area (Yakima NAA) for particulate matter 
with an aerodynamic diameter less than or equal to a nominal 10 
micrometers (PM-10). This correction revises the boundary of the Yakima 
NAA to exclude a small portion that lies within the exterior boundary 
of the Yakama Indian Reservation. The excluded area will revert to an 
unclassifiable designation, consistent with the original and current 
designation of the Yakama Indian Reservation.

EFFECTIVE DATE: This rule is effective on March 9, 2005.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. WA-04-005. Publicly available docket materials are available in 
hard copy at EPA Region 10, Office of Air, Waste, and Toxics (AWT-107), 
1200 Sixth Avenue, Seattle, Washington 98101. This Docket facility is 
open from 8:30-4, Monday through Friday, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: Gina Bonifacino, Office of Air, Waste 
and Toxics (OAWT-107), EPA Region 10, 1200 Sixth Avenue, Seattle, 
Washington 98101, (206) 553-2970, or e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,'' 
``us'' or ``our'' is used, we mean EPA. Information is organized as 
follows:

Table of Contents

I. Background
II. What Comments Did EPA Receive on the Proposed Action?
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    On November 29, 2004, EPA solicited public comment on a proposal to 
correct the boundary of the Yakima County nonattainment area (Yakima 
NAA) for particulate matter with an aerodynamic diameter less than or 
equal to a nominal 10 micrometers (PM-10) by excluding approximately 
six square miles of Yakama Indian Reservation land. Section 
107(d)(4)(B) of the Clean Air Act (CAA or the Act) sets out the general 
process by which areas were to be designated nonattainment for the 
national ambient air quality standards (NAAQS) for PM-10 upon enactment 
of the 1990 Clean Air Act amendments. The Act states that each area 
that had been identified by EPA as a PM-10 Group I area \1\ prior to 
the 1990 CAA Amendments is designated nonattainment for PM-10 by 
operation of the law upon enactment of the 1990 CAA Amendments. Prior 
to enactment of the 1990 CAA amendments, EPA published technical 
corrections clarifying the boundaries of concern for some of the areas 
previously identified as Groups I and II areas. See 55 FR 45799. 
October 31, 1990. With this action, the Yakima County Group I area was 
revised to correspond to a rectangular study area that encompassed

[[Page 6362]]

the cities of Yakima, Selah, and Union Gap and surrounding areas. The 
revised Yakima County Group I area included approximately six square 
miles of fee land within the exterior boundaries of the Yakama Indian 
Reservation.
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    \1\ Group I areas were areas that, at the time the particulate 
matter indicator was changed from total suspended particulate (TSP) 
to PM-10, were estimated to have a high probability of exceeding the 
PM-10 NAAQS.
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    EPA now believes that it mistakenly construed then-existing air 
quality data and, as a consequence, incorrectly included this small 
portion of the Yakama Indian Reservation within the Yakima County Group 
I area that would later become the Yakima NAA. When EPA delineated the 
boundary of the Yakima County Group I area in 1990, EPA policy called 
for drawing the boundary based on political boundaries unless there was 
technical information identifying particular sources contributing to 
violations of the NAAQS that warranted a different approach. In other 
words, EPA policy called for not including land within the exterior 
boundaries of the Yakama Indian Reservation as part of the Yakima Group 
I area unless there was information showing that sources within the 
Yakama Indian Reservation contributed to the PM-10 violations recorded 
on state lands. At the time of the determination of the boundaries of 
the Yakima Group I area, which by operation of the law became the 
Yakima NAA, there was no technical information provided by Washington 
indicating that sources on the Yakama Indian Reservation contributed to 
the violations of the PM-10 NAAQS that had been recorded on monitors in 
the city of Yakima. EPA policy therefore called for using political 
boundaries to delineate the nonattainment area. As such, EPA erred in 
including a portion of the Yakama Indian Reservation in the Yakima NAA.
    Accordingly, under the authority of section 110 (k) (6) of the CAA, 
EPA is revising the boundary of the Yakima NAA to exclude the portion 
within the exterior boundary of the Yakama Indian Reservation. A 
detailed description of our action was published in the Federal 
Register on November 29, 2004. See 69 FR 69338.

II. What Comments Did EPA Receive on the Proposed Action?

    EPA received the following comments from one commenter on December 
28, 2004.
    Comment:
    Although the PM-10 emissions originating within the portion of the 
Yakima PM-10 NAA south of Ahtanum Creek and within the exterior 
boundary of the Yakima Indian Reservation are minimal and did not 
contribute to the original classification of the NAA as a Group 1 area 
in 1987, we believe that other large rural and agricultural areas south 
and west of the City of Yakima that remain in the nonattainment area 
and that had similar land uses, population densities and commercial 
uses in 1987 also made a minimal contribution to the PM-10 emissions 
for the NAA. Air dispersion modeling documented in the 1989 and 1992 
supplements indicates that the predicted highest values will generally 
occur in the City of Yakima. We believe the air dispersion modeling is 
an accurate presentation of the PM-10 distribution across the NAA, and 
request the proposed boundary revision to remove the area south of 
Ahtanum Creek of the NAA include all of the rural and agricultural 
lands in the NAA with similar land uses, population densities, 
commercial uses and transportation patterns to those of the tribal 
portion of the NAA.
    Response:
    As discussed in the proposal, EPA is basing its decision to revise 
the boundary of the Yakima NAA on its policy for determining the 
boundaries of PM-10 nonattainment areas, as well as air quality 
considerations. See 69 FR 69340. November 29, 2004. When EPA delineated 
the boundary of the Yakima County Group 1 area through technical 
corrections in 1990, EPA's policy called for using political boundaries 
associated with the area where the monitored violations occurred and in 
which it is reasonably expected that sources contributing to the 
violations are located. See 57 FR 43846, 43848 (September 22, 1992). 
The Yakima NAA includes the City of Yakima, as well as the cities of 
Selah and Union Gap and surrounding areas with sources contributing to 
the violations.\2\ Together, the Cities of Selah, Union Gap and 
surrounding areas comprise a portion of Yakima County and therefore are 
within a single political boundary.
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    \2\ See the Technical Support Document for a discussion of these 
sources.
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    In contrast, the area south of Ahtanum Creek that is the subject of 
this action is within the boundary of the Yakama Indian Reservation, 
which is a different political jurisdiction than Yakima County. At the 
time of determination of the boundaries of the Yakima Group I area, 
there was no technical information provided by Washington indicating 
that sources on the Yakama Indian Reservation contributed to the 
violations of the PM-10 NAAQS that had been recorded on monitors in the 
city of Yakima. Because this area is a different political jurisdiction 
and did not contribute to the violations, EPA is correcting its error 
in including a portion of the Yakama Indian Reservation in the Yakima 
NAA. In contrast, the other rural and agricultural areas within Yakima 
County that the commenter seeks to remove from the NAA are subject to 
the same political jurisdiction as the area where the violations 
occurred.
    Comment:
    As an alternative to removing these state rural and agricultural 
lands from the NAA, the commenter requests that EPA determine that the 
area south of Ahtanum Creek be redesignated to attainment.
    Response:
    Section 107 (d) (3) (E) of the Clean Air Act, and the General 
Preamble to Title 1 ( 57 FR 13498) provide the criteria for 
designation. These criteria are further clarified in a policy and 
guidance memorandum from John Calcagni, Director, Air Quality 
Management Division, EPA Office of Air Quality Planning and standards 
dated September 4, 1992, Procedures for Processing Requests to 
Redesignate Areas to attainment. The criterion that the Administrator 
has fully approved a maintenance plan for the area as meeting the 
requirements of section 175A of the Act is among the criteria for 
redesignation outlined in this memo.
    In a concurrent action published today, EPA is redesignating the 
Yakima NAA (with the boundary revised to exclude lands within the 
Yakama Indian Reservation) to attainment for PM-10. EPA refers the 
reader to a November 29, 2004 action proposing to approve the Limited 
Maintenance Plan entitled Yakima PM 10 Limited Maintenance Plan and 
Redesignation Request, Yakima County and the redesignation request for 
the Yakima NAA. See 69 FR 69342. Section 2.12 of the Limited 
Maintenance Plan, submitted by the State of Washington and approved by 
EPA in a concurrent action published today, states that the plan does 
not include the portion of the NAA within the exterior boundary of the 
Yakama Indian Reservation. In a concurrent action published today, EPA 
is clarifying that the SIP it is approving does not extend to lands 
which are within the boundaries of the Yakama Indian Reservation.
    Therefore, the area within the Yakama Indian Reservation does not 
meet the criteria for redesignation to attainment. As discussed in the 
proposal, this area will revert to an unclassifiable designation.

III. Final Action

    The Environmental Protection Agency is revising the boundary of the 
Yakima NAA to exclude the portion of the Yakima NAA that is within the 
exterior

[[Page 6363]]

boundary of the Yakama Indian Reservation. This correction changes the 
boundary of the Yakima NAA to read as follows:
    The area bounded on the south by a line from UTM coordinate 
694000mW, 5157000mN, west to 681000mW, 5157000mN, thence north along a 
line to coordinate 681000mN, 5172000mN, thence east to 694000mW, 
5172000mN, thence south to the beginning coordinate 694000mW, 
5157000mN, excluding the area within the exterior boundary of the 
Yakama Indian Reservation.
    The excluded area will revert to an unclassifiable designation 
consistent with the original and current designation of the Yakama 
Indian Reservation.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely corrects the description of a nonattainment area to exclude land 
that did not contribute to the nonattainment problem and was under a 
different regulatory jurisdiction and does not impose any additional 
requirements on state, local or tribal governments or the private 
sector. Accordingly, the Administrator certifies that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
Because this rule approves pre-existing requirements under state law 
and does not impose any additional enforceable duty beyond that 
required by state law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Public Law 104-4).
    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.'' Under section 5(b) of Executive 
Order 13175, EPA may not issue a regulation that has tribal 
implications, that imposes substantial direct compliance costs, and 
that is not required by statute, unless the Federal government provides 
the funds necessary to pay the direct compliance costs incurred by 
tribal governments, or EPA consults with tribal officials early in the 
process of developing the proposed regulation. Under section 5(c) of 
Executive Order 13175, EPA may not issue a regulation that has tribal 
implications and that preempts tribal law, unless the Agency consults 
with tribal officials early in the process of developing the 
regulation. EPA has concluded that this rule may have tribal 
implications. EPA's action will remove a portion of the Yakama Indian 
Reservation from the Yakima NAA. However, it will neither impose 
substantial direct compliance costs on tribal governments, nor preempt 
tribal law. Thus, 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 consulted with representatives of tribal governments 
early in the process of developing this rule to permit them to have 
meaningful and timely input into its development. 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.
    This action also does not have Federalism implications because it 
does not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999). This action merely corrects the description of a 
nonattainment area to exclude land that did not contribute to the 
nonattainment problem and was under a different regulatory jurisdiction 
and does not alter the relationship or the distribution of power and 
responsibilities established in the CAA. This rule also is not subject 
to Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because 
it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Dated: January 21, 2005.
Ronald A. Kreizenbeck,
Acting Regional Administrator, Region 10.

0
Part 81, chapter I, title 40 of the Code of Federal Regulations are 
amended as follows:

PART 81--[AMENDED]

0
1. The authority citation for part 81 continues to read as follows:

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

0
2. In Sec.  81. 348 , the table entitled ``Washington-PM-10'' is 
amended by revising the entry for ``Yakima County'' table to read as 
follows:


Sec.  81.348  Washington.

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[[Page 6364]]



                                                                    Washington--PM-10
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                                                                Designation                                           Classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                              Date                        Type                        Date                        Type
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                                                                      * * * * * * *
Yakima County...........................     11/15/90  Nonattainment............................     11/15/90  Moderate.
    The area bounded on the south by a
     line from UTM coordinate 694000mW,
     5157000mN, west to 681000mW,
     5157000mN, thence north along a
     line to coordinate 681000mN,
     5172000mN, thence east to 694000mW,
     5172000mN, thence south to the
     beginning coordinate 694000mW,
     5157000mN, excluding the area
     within the exterior boundary of the
     Yakama Indian Reservation
 
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[FR Doc. 05-1994 Filed 2-4-05; 8:45 am]
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