Environmental Protection Agency (EPA).
Today, EPA is proposing to rescind the finding that the pre-existing PM-10 standards and the accompanying designation and classification are no longer applicable in Northern Ada County/Boise, Idaho (“Ada County”). The EPA had previously taken final action regarding the applicability of the pre-existing PM-10 standards for Ada County, Idaho on March 12, 1999. A recent ruling of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) has undermined the basis for EPA's previous determination on the applicability of the pre-existing PM-10 standards. In the ruling, the court vacated the revised national ambient air quality standards (NAAQS) for PM-10, the existence of which served as the underlying basis for EPA's regulations governing such applicability determinations and, thus, the specific finding that the pre-existing PM-10 standards no longer applied in Ada County, Idaho. Since the court has vacated the revised PM-10 standards that we issued in 1997, there are no Federal PM-10 standards currently applicable in that area as required under the Clean Air Act (CAA). The State's approved PM-10 standards remain in effect. Therefore, today we are proposing to rescind the finding that the pre-existing PM-10 standards are no longer applicable in Ada County, Idaho, and to reinstate the applicability of the pre-existing PM-10 standards. Under this proposal, we would reinstate the designation and classification that previously applied in Northern Ada County/Boise with respect to the pre-existing PM-10 standards. EPA has discussed this with the State of Idaho. Further, in today's action EPA is proposing to delete 40 CFR 50.6(d), thus ensuring that the pre-existing PM-10 standards will continue to apply to all areas.
Your comments must be submitted on or before July 26, 2000 in order to be considered.Start Printed Page 39322
You may comment in various ways:
On paper. Send paper comments (in duplicate, if possible) to the Air and Radiation Docket and Information Center (6102), Attention: Docket No. A-2000-13, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW, Washington, DC 20460, telephone (202) 260-7548.
Electronically. Send electronic comments to EPA at: A-and-R-Docket@epa.gov. Avoid sending confidential business information. We accept comments as e-mail attachments or on disk. Either way, they must be in WordPerfect 5.1 or 6.0 or ASCII file format. Avoid the use of special characters and any form of encryption. You may file your comments on this proposed rule online at many Federal Depository Libraries. Be sure to identify all comments and data by Docket number A-2000-13.
Public inspection. You may read the proposed rule (including paper copies of comments and data submitted electronically, minus anything claimed as confidential business information) at the Office of Air and Radiation Docket and Information Center located at 401 M Street, SW, Washington, DC 20460. They are available for public inspection from 8:30 a.m. to 5:30 p.m., Monday through Friday, excluding legal holidays. A reasonable fee may be charged for copying.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Questions about this proposal should be addressed to Gary Blais (Office of Air Quality Planning and Standards, Air Quality Strategies and Standards Division, Integrated Policy and Strategies Group, MD-15, Research Triangle Park, NC 27711, telephone (919) 541-3223 or e-mail to firstname.lastname@example.org. To ask about policy matters specifically regarding Northern Ada County/Boise, call Bonnie Thie, EPA Region 10, Office of Air Quality (OAQ-107), EPA, Seattle, Washington, (206) 553-1189.End Further Info End Preamble Start Supplemental Information
Table of Contents
A. What was the basis for EPA's previous rulemaking actions finding that the pre-existing PM-10 standards no longer apply in Northern Ada County, Idaho?
B. What effect does the recent court decision have on today's proposed action?
II. What action is EPA proposing to take today?
III. What is the effect of rescinding the previous finding that the pre-existing PM-10 standards no longer apply in Ada County?
A. What additional planning options could the State of Idaho pursue?
IV. What administrative requirements are we considering in writing today's proposed rule?
A. Executive Order 12866: Regulatory Impact Analysis
B. Regulatory Flexibility Act
C. Unfunded Mandates
D. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks
E. Executive Order 13132: Federalism
F. Executive Order 13084: Consultation and Coordination with Indian Tribal Governments
G. Paperwork Reduction Act
H. Executive Order 12898: Environmental Justice
I. National Technology Transfer and Advancement Act
A. What was the basis for EPA's Previous Rulemaking Actions Finding that the Pre-existing PM-10 Standards no Longer Apply in Ada County, Idaho?
On July 18, 1997 (62 FR 38856), we issued a regulation replacing the pre-existing PM-10 standards with revised PM-10 standards at a level of 150 μg/m3 on a daily basis, and 50 μg/m3 on an annual basis. We based the form of the revised daily standard on the 3-year average of the 99th percentile concentration value for each of those years measured at each monitor within an area. We based the form of the revised annual standard on the 3-year average of the annual mean concentration for each of those years at each monitor within an area. The new standards, which became effective on September 16, 1997, were issued to provide increased protection to the public, especially children, the elderly, and other at-risk populations.
Also, on July 18, 1997, we announced that the effective date of the revocation of the pre-existing PM-10 NAAQS would be delayed and that, therefore, the existing standards and associated designations and classifications would continue to apply for an interim period. We did this to provide continuity in public health protection during the transition from the pre-existing to the new PM NAAQS. We provided, by regulation, that the pre-existing PM-10 standards would no longer apply to an area attaining those standards based on 3 years of quality-assured monitoring data, and certain other criteria. The regulation indicating the conditions under which the pre-existing PM-10 standards would no longer apply was clearly premised upon the existence of the newly-revised PM standards, and the implementation scheme developed for those standards. See 63 FR 38652, 38701.
The criteria in the regulation at 40 CFR 50.6(d) for determining that the pre-existing PM-10 NAAQS would no longer be applicable for an area, and guidance issued subsequently by EPA, reflect and are consistent with a memorandum issued by President Clinton that same day (62 FR 38421, 38428, July 18, 1997).
On March 12, 1999 (64 FR 12257), we issued final rules approving the State of Idaho's request that EPA revoke the pre-existing PM-10 NAAQS, along with the associated designation and classification, for Ada County because the area had attained those standards and had satisfied the revocation criteria found in 40 CFR 50.6(d). We therefore took action 175 F.3d 1027 (D.C. Cir., 1999) determining that the pre-existing PM-10 standards no longer applied in Ada County.
B. What Effect Does the Recent Court Decision Have on Today's Proposed Action?
On May 14, 1999, the U.S. Court of Appeals for the D.C. Circuit issued an opinion questioning the constitutionality of the CAA authority to review and revise the NAAQS, as applied in EPA's revision to the ozone and particulate matter NAAQS. American Trucking Association, et al., v. EPA, et al., and consolidated cases. The Court stopped short of finding the statutory grant of authority unconstitutional, instead providing EPA with another opportunity to develop a determinate principle for promulgating NAAQS under the statute. In its decision, the Court found there was adequate evidence in the rulemaking record to justify EPA's choice to regulate both coarse and fine particulate matter pollution. Nevertheless, the Court went on to find that the Agency's decision to issue separate, but overlapping, regulations governing fine particles (defined as having an aerodynamic diameter of 2.5 microns or less) and regulations governing coarse particles (defined as having an aerodynamic diameter of 10 microns or less, which, therefore, includes particles sized at 2.5 microns and below) was unreasonable. In the Court's view, implementation of both PM NAAQS together would have led to “double regulation” of the PM-2.5 component of the revised PM-10 NAAQS and potential underregulation of pollution above the 2.5 micron size. Consequently, the Court determined that EPA had acted in an arbitrary and capricious manner, and vacated the revised PM-10 NAAQS. Start Printed Page 39323
The Ada County revocation rulemaking was based on the existence of the revised PM-10 standards, as well as the transition policy that was put in place to facilitate implementation of those standards. Since the Court vacated those standards, we have no justification for leaving in place a determination that would deprive members of the public in the Ada County area of any Federal protection from high levels of coarse particulate matter pollution. Such a result is untenable, especially when the Agency itself concluded that increased health protection was necessary when it issued its revised PM NAAQS. We therefore, feel the appropriate course is to propose an action that would rescind our previous finding that the pre-existing PM-10 standards are no longer applicable in Ada County. Through restoration of the pre-existing PM-10 standards, we will ensure continued CAA health protection for members of the public living in Ada County, Idaho.
II. What Action Is EPA Proposing To Take Today?
Today, we are proposing to rescind the Agency's March 12, 1999 finding that the pre-existing PM-10 standards no longer apply in Ada County (64 FR 12257). The intended effect of this proposal, once it undergoes public comment and we take final action, will be that the applicability of the pre-existing PM-10 standards will be restored in Ada County. A consequence of this action, when completed, will be the return of the nonattainment designation and classification associated with those standards.
Further, we are proposing to amend 40 CFR parts 50, 52 and 81 as follows: (1) Part 50, section 50.6(d) will be deleted in its entirety consistent with our decision that the pre-existing PM-10 standards, as reflected in subsections (a) and (b) of 50.6, should continue to apply in all areas. The effect of this action would be that the pre-existing PM-10 standards, as codified at 40 CFR 50.6(a) and (b), would remain applicable to all areas; and (2) part 52, section 52.676, which codified the revocation of the pre-existing PM-10 NAAQS and the removal of the nonattainment designation, will be deleted in its entirety. As a consequence of this action, part 81, § 81.313 will be revised to indicate that the pre-existing PM-10 standards and nonattainment designation apply to Ada County.
III. What Is the Effect of Rescinding the Previous Finding That the Pre-Existing PM-10 Standards No Longer Apply in Ada County?
The requirements of section 176 of the CAA (U.S.C. 7506), designed to coordinate transportation and air quality planning, will apply immediately upon the effective date of the final action, as it would have the effect of reestablishing the nonattainment designation. We note that the D.C. Circuit has held that EPA could not provide a 1-year grace period for applicability of these transportation regulations, but rather that transportation requirements would apply as a matter of law. Sierra Club v. EPA, 129 F.3d 137 (D.C. Cir. 1997). Therefore, EPA believes that to interpret the CAA most consistently with the case law, the transportation requirements would apply again to any area that has a nonattainment designation reestablished. This will be the case for Ada County if we take final action consistent with today's proposal.
The requirements that would now apply are included in 40 CFR parts 51 and 93. The EPA and the Department of Transportation issued guidance on May 14, 1999 and June 18, 1999, respectively, clarifying the requirements for transportation and air quality planning. These documents can be found in the docket.
When these requirements begin applying to an affected area, the area must have a current transportation plan and program that is consistent with the air quality implementation plan to receive Federal approval or funding for transportation projects. Ada County's transportation improvement program expired on January 8, 1999. Ada County does have an approved PM-10 State Implementation Plan (SIP) (61 FR 27019, May 30, 1996) which contains motor vehicle emissions budgets. To demonstrate that the requirements under section 176 are met, the transportation plan and program would need to be consistent with the budgets in the approved SIP prior to this proposal taking effect.
New Source Review Requirements: The NSR program which was linked to the CAA section 107 designation and classification that was in effect in Ada County (when EPA found that the pre-existing PM-10 standard no longer applied), will again apply under the approved SIP immediately upon rescission of that finding.
Idaho's SIP defines the term “nonattainment area” as simply any area designated as nonattainment under section 107(d) of the CAA. Therefore, EPA's previous designation of the Ada County area as nonattainment made it a nonattainment area for all purposes under Idaho's SIP rules. Therefore, Idaho's part D NSR rules that previously applied prior to March 12, 1999, the date of EPA's determination that the pre-existing PM-10 standards no longer applied, would again apply in Ada County to new and modified major sources of PM-10 automatically upon finalization of this action.
A. What Additional Planning Options Could the State of Idaho Pursue?
An option which is always available under the Clean Air Act is for an area such as Ada County to apply for a redesignation to attainment. The requirements for redesignation are listed in section 107(d)(3) and EPA guidance. The essence of the redesignation requirements is that an area develop and adopt air quality plans which will be protective of public health for the long-term by ensuring the continued achievement of the air quality standard at issue, in this case PM-10.
The State of Idaho and Ada and Canyon County representatives have been working on a comprehensive multi-county air quality plan—the Treasure Valley Airshed Management Plan. EPA understands that the State is working to complete, implement, and submit the requirements listed in section 107(d)(3). In addition, the State and Ada County representatives are considering measures necessary to implement existing PM-10 control strategies and other measures necessary to ensure continued progress and no net increase in PM-10 emissions from transportation projects while any such plan is developed.
IV. What Administrative Requirements Have We Considered in Writing Today's Proposed Rule?
A. Executive Order 12866: Regulatory Impact Analysis
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; Start Printed Page 39324
(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 Agency has determined that this proposed regulatory action is not significant. The OMB agrees and is exempting this proposed regulatory action from Executive Order 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., EPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities (5 U.S.C. 603 and 604), unless EPA certifies that the rule will not have a significant impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000. The EPA is proposing that this rule, in its final form, will not have a significant impact on a substantial number of small entities because the determination that the pre-existing PM-10 standards again apply in Ada County does not itself directly 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 the rule's impact on entities subject to the requirements of the rule). Instead, this rule merely establishes that the previous PM-10 standard again applies in Ada County. For the most part, any requirements applicable to small entities that may indirectly apply as a result of this action would be imposed independently by the State under its SIP, not by EPA through this action. Moreover, to the extent this rule would automatically trigger the applicability of certain SIP requirements to small entities (e.g., NSR), this rule cannot itself be tailored to address small entities that would be subject to those requirements.
One requirement that may apply immediately upon this action in Ada County is the requirement under CAA section 176(c) and associated regulations to demonstrate conformity of Federal actions to SIPs. However, those rules only apply directly to Federal agencies and metropolitan planning organizations (MPOs), which by definition are designated only for metropolitan areas with populations of at least 50,000 and thus do not meet the definition of small entities under the RFA. Therefore, I certify that this action will not have a significant impact on a substantial number of small entities within the meaning of those terms for RFA purposes.
C. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least-burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.
Today's action, if finalized, would 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. This rule would reinstate the applicability of the pre-existing PM-10 standards and the designation and classification status of Ada County. The consequences of this action may result in some additional costs within the affected area; however, the Agency believes that these costs would not exceed $100 million per year in the aggregate.
One mandate that may apply as a consequence of this action in Ada County is the requirement under CAA section 176(c) and associated regulations to demonstrate conformity of Federal actions to SIPs. These rules apply to Federal agencies and MPOs making conformity determinations. The EPA concludes that such conformity determinations will not cost $100 million or more in the aggregate annually. Finally, Idaho's part D NSR rules will apply again if we take final action on this proposal, however we don't believe the incremental costs of these rules compared with the prevention of significant deterioration (PSD) rules currently in place in Ada County, plus the costs of conformity determinations, would exceed $100 million or more in the aggregate in any 1 year.
D. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks
Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 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.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This proposed rule is not subject to Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866, and it implements a previously promulgated health or safety-based Federal standard, and does not itself involve decisions that affect environmental health or safety risks.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that 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.” Under Section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism 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 State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism Start Printed Page 39325implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.
The EPA concludes that this rule will not have substantial federalism implications, as specified in Section 6 of Executive Order 13132 (64 FR 43255, August 10, 1999), because, as noted previously, this rule would simply reinstate the applicability of the previous PM-10 standard and the associated air quality designation for Ada County and will not directly impose significant new requirements on Ada County, or substantially alter the relationship or the distribution of power and responsibilities between Idaho and the Federal government.
Although EPA has determined that Section 6 of Executive Order 13132 does not apply, EPA nonetheless consulted on numerous occasions with a broad range of State and local officials both prior to and in the course of developing this proposed rule. These included contacts with members and staffs of the State's congressional offices, representatives of the Governor, the State Attorney General's Office, the Department of Environmental Protection, and affected local metropolitan planning offices. During these discussions, concerns were raised by Idaho regarding the impact of reinstatement of the preexisting PM-10 standards on current planning endeavors, including transportation improvement programs. In this context, and in order to understand whether there might be potential alternative planning options, the State sought clarification from EPA on its view of the legal implications of the D.C. Circuit's American Trucking opinion. EPA's response to these queries is summarized in Section I of this notice. Additionally, EPA was able to assure the State that transportation programs undertaken prior to finalization of reinstatement of the standards and designation would not be affected by that action. Finally, although EPA could not resolve all of Idaho's concerns regarding the impact of this action on certain air quality planning initiatives, the Agency committed itself to work closely with the State, within the limits permitted by the requirements of the Clean Air Act, to minimize any unnecessary impacts.
F. 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 OMB, 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 officials 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.”
Today's proposed rule does not significantly or uniquely affect the communities of Indian tribal governments. This proposed action does not involve or impose any requirements that directly affect Indian tribes. Under EPA's tribal authority rule, tribes are not required to implement CAA programs but, instead, have the opportunity to do so. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.
G. Paperwork Reduction Act
This proposal does not contain any information collection requirements which require OMB approval under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
H. Executive Order 12898: Environmental Justice
Under Executive Order 12898, each Federal agency must make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations. Today's proposed action reinstating the pre-existing PM-10 standard does not adversely affect minorities and low-income populations.
I. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing new regulations. To comply with NTTAA, the EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.
The EPA believes that VCS are inapplicable to this proposed action. Today's proposed action does not require the public to perform activities conducive to the use of VCS.Start List of Subjects
List of Subjects
- Environmental protection
- Air pollution control
- Carbon monoxide
- Nitrogen dioxide
- Particulate matter
- Sulfur oxides
End List of Subjects Start Signature
Dated: June 2, 2000.
Carol M. Browner,
For the reasons set out in the preamble, chapter I, title 40 of the Code of Federal Regulations is proposed to be amended as follows:Start Part
1. The authority citation for part 50 continues to read as follows:
2. Section 50.6(d) is proposed to be removed.
1. The authority citation for part 52 continues to read as follows:
2. Section 52.676 is proposed to be removed.
1. The authority citation for part 81 continues to read as follows:
2. In § 81.313, the entries for “Ada County” and “Metropolitan Boise Intrastate AQCR 64” in the table entitled “Idaho PM-10” are proposed to be revised to read as follows:
|Boise||Effective date of final rule||Nonattainment||Effective date of final rule||Moderate|
|Northern Boundary-Beginning at a point in the center of the channel of the Boise River, where the line between sections 15 and 16 in Township 3 north (T3N), range 4 east (R4E), crosses said Boise River; thence, west down the center of the channel of the Boise River to a point opposite the mouth of More's Creek; thence, in a straight line north 44 degrees and 38 minutes west until the said line intersects the north line of T5N (12 Ter. Ses. 67); thence west to the northwest corner of T5N, R1W Western Boundary-Thence, south to the northwest corner of T3N, R1W; thence east to the northwest corner of section 4 of T3N, R1W; thence south to the southeast corner of section 32 of T2N, R1W; thence, west to the northwest corner of T1N, R1W; thence, south to the southwest corner of section 32 of T2N, R1W; thence, west to the northwest corner of T1N, R1W; thence south to the southwest corner of T1N, R1W Southern Boundary-Thence, east to the southwest corner of section 33 of T1N, R4E Eastern Boundary-Thence, north along the north and south center line of Townships T1N, R4E, T2N, R4E, and T3N, R4E, Boise Meridian to the beginning point in the center of the channel of the Boise River|
|* * * * * * *|
|Metropolitan Boise Intrastate AQCR 64||11/15/90||Unclassifiable|
|(Excluding Ada County Boise PM-10 nonattainment area)|
[FR Doc. 00-14854 Filed 6-23-00; 8:45 am]
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