Approval and Promulgation of Air Quality Implementation Plan; Idaho

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA or Agency) is taking final action to approve the nonattainment and maintenance plan for particulate matter with an aerodynamic diameter less than or equal to ten micrometers (PM-10) for the Portneuf Valley, PM-10 nonattainment area in Idaho. EPA is also granting Idaho's request to redesignate the Portneuf Valley PM-10 nonattainment area to attainment for the National Ambient Air Quality Standards (NAAQS) for PM-10.

DATES:

This final rule is effective on August 14, 2006.

ADDRESSES:

EPA has established a docket for this action under Docket #, R10-OAR-2005-ID-0001. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, e.g. confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at EPA Region 10, Office of Air Waste and Toxics (AWT-107), 1200 Sixth Avenue, Seattle, WA. EPA requests that if possible you contact the contact listed in the FOR FURTHER INFORMATION CONTACT section, to schedule an appointment. Region 10 official business hours are 8:30 a.m. to 4:30 p.m. Monday through Friday, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT:

Steve Body, Office of Air, Waste and Toxics (AWT-107), EPA Region 10, 1200 Sixth Avenue, Seattle WA, 98101; telephone number: (206) 553-0782; fax number: (206) 553-0110; e-mail address: body.steve@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, whenever “we”, “us”, or “our” is used, we mean the EPA. Information is organized as follows:

I. Background Information

A. What are we approving in this action?

B. What comments did we receive on the proposal to approve the Plan and what are our responses?

C. What action are we taking on redesignation?

II. Summary of Final Action To Approve the State Submittal and Grant the State's Redesignation Request

III. Statutory and Executive Orders Review

I. Background Information

A. What are we approving in this action?

Under the authority of the Federal Clean Air Act (Clean Air Act or Act), EPA is taking final action to approve the State's moderate area nonattainment plan and the maintenance plan for the Portneuf Valley PM-10 nonattainment area for the 24 hour and annual PM-10 NAAQS. We are also granting the State's request to redesignate the area from nonattainment to attainment for PM-10.

On June 30, 2004, the Director of the Idaho Department of Environmental Quality (IDEQ) submitted plans to bring the Portneuf Valley PM-10 nonattainment area into attainment, and maintain attainment with the National Ambient Air Quality Standard (NAAQS) for PM-10 for an additional 10 years. The State also requested redesignation of the area to attainment for PM-10. The attainment plan, the maintenance plan, and the redesignation request are collectively referred to as the “State Submittal.”

On May 20, 2005, EPA proposed to approve the nonattainment area plan and the maintenance plan and to grant the redesignation request. See Notice of Proposed Rulemaking 70 FR 29243. As explained in the proposal, the State Submittal satisfies the Clean Air Act nonattainment and maintenance planning requirements, as well as the redesignation requirements. See the proposed action for a full description of the State submission and our evaluation of the Clean Air Act requirements.

B. What comments did we receive on our proposal to approve the “State Submittal”?

We received one comment letter on our proposed action to approve the State Submittal. The commenter, J.R. Simplot Company, requested that the State Submittal be revised to correct and clarify technical data and information related to the J.R. Simplot fertilizer facility (the Don Plant) located near Pocatello, Idaho and the shutdown of the Astaris (FMC) facility, located immediately adjacent to the J.R. Simplot, Don plant. In general the commenter requests that EPA revise the State Submittal before approving it. As explained below, EPA has the authority to review and take appropriate action on a State Implementation Plan (SIP) submitted to it. Revisions, if any, to a SIP submitted to EPA are made by the State, rather than EPA. After revision the State may resubmit the SIP to EPA for approval. Each specific comment and our response is summarized below:

Comment: The commenter requests that the emission inventory in the State Submittal be revised prior to EPA approval so that the plan accurately reflects the emission reductions that have occurred at the Don Plant and at the Astaris (formerly FMC) facility. J.R. Simplot Company says that over the past two decades, emissions from their Don Plant have been reduced by 15,000 tons/year. The commenter indicates that reductions of both primary and precursor emissions since 2001 from both the Don Plant and Astaris (FMC) facility are 6,880 tons/year. This reduction is primarily from the shutdown of the Astaris (FMC) facility in 2001, which accounts for 6,465 tons/year.

Response: The SIP air quality planning process is lengthy. It can take several years to develop the technical information and analysis needed to support a nonattainment or maintenance plan. Therefore, generally a State establishes a ‘base year’, usually the calendar year prior to initiation of the planning effort, as the starting point. This allows for the collection, verification, and use of complete annual data and information in the plan. The plan then contains consistent and comparable data, information, analyses, and measures as a basis for developing control measures and emission reductions needed to demonstrate attainment in the future attainment and maintenance years. Constantly changing conditions (meteorology, voluntary emission reductions, economic conditions, etc.) that occur after the base-year are not considered in the base year. The demonstration that the plan is adequate for attaining and maintaining the standard takes into consideration changes in allowable emissions that occur after the base year, including new enforceable and permanent emission limitations and facility shut-downs. The demonstration of attainment and maintenance in future years is based on allowable emissions.

The base year is 2000 for the State Submittal for the Portneuf Valley nonattainment area. The 2000 base year technical analysis in the State Submittal is based on air quality data, actual emissions from all sources, and meteorology collected in 2000. As explained in the proposal, the attainment emissions inventory for 2000 describes the level of emissions in the nonattainment area sufficient to attain the NAAQS.

Projected emissions in the State Submittal for the future years of 2005, 2010, 2015, and 2020, were based on allowable emissions. Allowable emissions were developed from enforceable emission limits in permits for the industrial sources, included the reduction in emissions associated with the Astaris shutdown, and estimated reasonable worst case emissions from area sources such as residential wood combustion and road dust. If a source installed controls and achieved emission reductions on a voluntary basis after the 2000 base year, these reductions were not considered in the State Submittal because future year air quality maintenance demonstrations must be based on permanent and enforceable emission limitations, not voluntary reductions.

The State developed the 2000 base year and future year emission estimates to demonstrate attainment and maintenance of the NAAQS, using EPA issued guidance and procedures. Future year emissions in the State Submittal for industrial sources were based on the permanent and enforceable emission limitations contained in permits and reflect the shutdown of the Astaris facility. The future year emissions in the State Submittal, for sources identified by J.R. Simplot in Table 1 of their comment letter, are based on allowable emissions and the shutdown of the Astaris facility, rather than emission reductions as presented in Table 1 of the comment letter. The allowable emissions are accurately accounted for in the State's future year allowable emission inventories.

The 2000 base year and future year emission inventories are comprehensive and accurate. The State has adequately demonstrated that the Portneuf Valley area has attained and will continue to maintain the PM-10 NAAQS at the projected emission levels. Even if actual emissions and concentrations are lower, as the commenter contends, it would not affect our finding that the area attains and the plan is adequate to maintain the standard.

Comment: The demonstration analysis provided in the Plan is conservative, meaning that projected air quality levels in future years may be over estimated and that actual measurements will be lower than predicted. The commenter believes that the speciated roll-back model overestimates the concentrations of PM-10 for future ambient air quality. The commenter believes that the Portneuf Valley area airshed could accommodate emissions greater than those relied on in the inventory of allowable emissions and still meet the PM-10 NAAQS. The commenter requests that the State Submittal be adjusted to allow for additional emissions.

Response: The Clean Air Act provides EPA with authority to review and take appropriate action on SIPs that a State submits to it. Therefore, if revisions to a SIP submission are necessary, such revisions would be made by the State, rather than by EPA, and then the revised plan resubmitted to EPA for approval.

As explained in the proposal and the TSD accompanying the proposed action, EPA determined that, based on air quality data for the area since the attainment date, control measures, speciated linear rollback modeling as well as dispersion modeling, trend analysis, chemical mass balance source apportionment and emission data the State adequately demonstrated that the area has attained and will maintain the PM-10 NAAQS in the future. See 70 FR 29248-49. Even if a commenter can demonstrate that the analysis for the Portneuf Valley area is conservative, is based on overestimated future year emissions, and could be revised to allow for additional emissions in the airshed, the analysis provided by the State still demonstrates attainment and maintenance of the NAAQS. Therefore, regardless of whether or not the emissions and concentrations are over-predicted in the State's analysis, the area still demonstrates attainment and maintenance of the standard. Concerns about the level of allowable emissions should be addressed to the State.

Comment: The commenter requests that EPA, prior to approval of the plan, correct the emission inventory to accurately reflect NO_X emissions and eligible emission reduction credits.

Response: As explained above, the State would need to make the requested revisions and resubmit the plan according to administrative procedures. We have reviewed the inventory of emissions of oxides of nitrogen (NO_X) for base year 2000 and the future years. The results of that review are explained in the TSD and proposal associated with this action. We believe the base year inventory is comprehensive, current (at the time of development), and accurate as required by the Act. Future year emission estimates are based on enforceable emission limitations for industrial sources as provided in the permits included in the State Submittal. In this instance, the emission inventory considers, among other things, the emissions associated with the limits in the J.R. Simplot Don Plant permit, but does not consider the voluntary emission reductions achieved by the facility. Thus the State Submittal correctly uses enforceable emission limits for future year emissions for industrial sources.

For clarification, should in the future, Idaho create emission credits, these emission credits would need to be included in the future year allowable emissions. Emission credits could be created, for example, if Idaho lowered an enforceable emission limitation, thus creating emissions credits based on the difference between the old and new emission limits. But, these emission credits are allowable emissions that could be emitted at some future date. Therefore, they would need to be identified and included in future year allowable emission inventories and taken into account in any attainment or maintenance demonstrations.

The proposed future year NO_X emission inventories are correct.

Comment: EPA did not provide in the proposal the specific language to be added in the regulations (40 CFR part 52) for the Portneuf Valley Plan. The commenter requests that the public and regulated community have the opportunity to review and comment on the specific language to be added to the Code of Federal Regulations before EPA approval of the SIP/Portneuf Air Plan.

Response: EPA believes that it is not necessary to include this language in the proposal. Idaho submitted the J.R. Simplot Don Plant operating permit as part of the State Submittal. EPA evaluated the emission limits, for each emission unit emitting PM-10 or precursors, as meeting RACT. (See the TSD accompanying the proposal.) The permit and the TSD are available for public review as part of the Docket for the proposal. These documents identify which emission units and emission limits are RACT and become part of the Federally enforceable SIP. Final approval of the State Submittal means that the permit for the J.R. Simplot Don Plant, included in the State Submittal, is Federally enforceable. EPA may, as appropriate, incorporate by reference enforceable emission limitations in the SIP. Regardless of whether the exact incorporation language is included in the Federal Register notice, the applicable permit provisions become incorporated into the Idaho SIP and are Federally enforceable. Providing the exact incorporation by reference language in the proposal is unnecessary.

We are incorporating by reference only those provisions in the operating permits that Idaho determined represent RACT as presented in Table 6-3 of the State Submittal. Those provisions are emission unit and pollutant specific and include any measurement techniques specified for determining compliance.

Conclusion based on comments received and EPA response:

After review of all comments provided during the public comment period, EPA has determined that the State's attainment and maintenance plan meets all the nonattainment and maintenance planning obligations provided in the Clean Air Act.

C. What action are we taking on redesignation?

EPA is approving the Portneuf Valley, Idaho PM-10 attainment and maintenance plan as submitted to EPA on June 30, 2004.

After review of all comments provided during the public comment period, EPA has evaluated the State's redesignation request and determined that it meets the redesignation criteria set forth in section 107(d)(3)(E) of the Clean Air Act. See Notice of Proposed Rulemaking, 70 FR 29250-52. Approval of the redesignation request changes the official designation of the Portneuf Valley, Idaho area from nonattainment to attainment for the PM-10 standard.

III. 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 approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. 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 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 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 approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045A, 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.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, 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. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a major rule as defined by 5 U.S.C. 804(2).

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 September 11, 2006. 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

40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Particulate matter
• Reporting and recordkeeping requirements

40 CFR Part 81

• Environmental protection
• Air pollution control
• National Parks and Wilderness areas

Due to the Regional Administrator's recusal in matters involving the Idaho Department of Environmental Quality, this decision has been delegated to the Deputy Regional Administrator.

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart N—Idaho

2. Section 52.670 is amended as follows:

a. In paragraph (c) by adding the following entries to the end of the table.

b. In paragraph (d) by adding the following entries to the end of the table.

PART 81—[AMENDED]

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

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

4. In § 81.313, the table entitled “Idaho—PM10” is amended by revising the entry for “Eastern Idaho IntraState AQCR 61: Power-Bannock Counties, part of (Pocatello). State Lands-Portneuf Valley Area” to read as follows: