[Federal Register: February 7, 2005 (Volume 70, Number 24)]
[Rules and Regulations]
[Page 6361-6364]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07fe05-18]
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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:
bonifacino.gina@epa.gov.
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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