Air quality implementation plans; approval and promulgation; various States: Idaho,

[Federal Register: July 11, 2005 (Volume 70, Number 131)]

[Rules and Regulations]

[Page 39658-39662]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr11jy05-10]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Docket ID-03-003; FRL-7936-1]

Approval and Promulgation of Air Quality Implementation Plan; Idaho

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA is approving revisions related to open burning and crop residue disposal requirements in Idaho's State Implementation Plan (SIP). The Idaho Department of Environmental Quality (IDEQ) submitted these revisions to EPA for inclusion in the Idaho SIP on May 22, 2003. These revisions were submitted for the purposes of clarifying existing regulations and complying with section 110 and part D of the Clean Air Act.

DATES: This action is effective on August 10, 2005.

ADDRESSES: Copies of the State's SIP revision and other information supporting this action are available for inspection at EPA Region 10, Office of Air, Waste, and Toxics (AWT-107), 1200 Sixth Avenue, Seattle, Washington 98101.

FOR FURTHER INFORMATION CONTACT: Donna Deneen, EPA Region 10, Office of Air, Waste, and Toxics (AWT-107), 1200 Sixth Avenue, Seattle, Washington 98101, or at (206) 553-6706.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. Background Information

   1. What revisions to the Idaho SIP are we approving?

   2. What comments did we receive on our proposal to approve these revisions? II. Summary of Final Action III. Statutory and Executive Orders Review

1. Background Information

   1. What Revisions to the Idaho SIP Are We Approving?

      We are approving revisions to the portion of Idaho's State Implementation Plan relating to open burning found at IDAPA 58.01.01.600 through 617. These revisions were submitted to EPA by the Director of the Idaho Department of Environmental Quality on May 22, 2003. EPA proposed to approve these revisions on June 7, 2004. 69 FR 31778. These revisions (1) add a section in Idaho's open burning regulations to clarify that crop residue disposal is an allowable category of open burning, (2) add a section in Idaho's regulations to clarify that IDEQ has the authority to require immediate abatement of open

      [[Page 39659]]

      burning in cases of emergency requiring immediate action to protect human health or safety, and (3) remove section 58.01.01.604-- Alternatives to Open Burning, from Idaho's rules. The revisions also include several editorial changes to IDAPA 58.01.01.600 through 617.

   2. What Comments Did We Receive on Our Proposal To Approve These Revisions?

      We received one comment letter on the June 7, 2004 proposal. This comment letter was from Safe Air for Everyone (SAFE) and was sent on behalf of that organization, the American Lung Association of Idaho/ Nevada, and the Idaho Conservation League. In general, the letter opposed the proposed SIP revision. The comments and our response are summarized as follows:

      Comment: The commenter indicates there is evidence of severe health impacts from grass residue burning and provides documentation in support of that claim. The information includes copies of an extensive declaration and transcripts from the preliminary injunction hearing for Safe Air for Everyone v. Wayne Meyer, et al., that took place between July 10-12, 2002.

      Response: EPA is aware of and continues to be concerned about the health and welfare impacts associated with crop residue burning in Idaho and is working with the State Department of Agriculture and the Idaho Department of Environmental Quality to improve Idaho's crop residue burning and smoke management program. Approval of the State's revisions to IDAPA 58.01.01.600 through 617 does not reflect a change in EPA's concern. Rather, EPA believes that the revisions are approvable because they clarify the existing provisions under Idaho law that allow the State to regulate this activity.

      Comment: The commenter contends that the existing SIP prohibits the open burning of crop residue and that the State's claim that the revision is simply a clarification of the existing SIP is flawed. The commenter believes that approval of IDAPA 58.01.01.617 would be a drastic relaxation and a modification of a control requirement in effect before November 15, 1990, and that the revision is therefore prohibited under section 193 of the Clean Air Act because the State did not comply with the requirements of that provision. The commenter also argues that the argument that this is not a SIP relaxation would lead to adverse impacts such as allowing crop residue burning during air pollution episodes and would even allow pathological or hazardous wastes to be burned.

      Response: The specific revision at IDAPA 58.01.01.01.617 being approved in this action provides: ``The open burning of crop residue on fields where the crops were grown is an allowable form of open burning if conducted in accordance with the Smoke Management and Crop Residue Disposal Act, Chapter 48, Title 22, Idaho Code, and the rules promulgated pursuant thereto, IDAPA 02.06.16, `Crop Residue Disposal Rules.' '' EPA does not believe that Idaho's existing SIP when viewed in its entirety prohibits the burning of crop residue. As discussed below, the addition of IDAPA 58.01.01.617 is not a change or modification of a control requirement in effect before November 15, 1990.

      As explained in the proposal, the State has consistently maintained that burning crop residue was never meant to be prohibited by the open burning rules. Provisions allowing the burning of crop residue were initially approved into the Idaho SIP on July 28, 1982. 47 FR 32534. (Section 1-1153.08 of these rules specifically identifies agricultural burning as a category of allowable burning.) As discussed more fully below, Idaho subsequently passed 1985 legislation recognizing burning of agricultural fields and, at the same time, altering the State's approach to field burning regulation. Thereafter, the Idaho Department of Health and Welfare submitted rules reflecting the approach of the 1985 legislation, and EPA approved them on July 23, 1993. 58 FR 39445. (See also docket for summary of state regulatory and EPA approval timeline regarding agricultural burning.) EPA recognizes that the rule language approved on July 23, 1993 reflecting the 1985 approach, does not, on its face, appear to identify crop residue as a category of allowed burning. However, an examination of the State's overall approach to field burning demonstrates that the State has consistently allowed the practice and never intended to prohibit it. It would therefore be unreasonable to conclude that the State intended to ban the burning of crop residue in any of its SIP submissions.

      In reaching this conclusion EPA considered such things as the legislative history of Idaho's provisions related to agricultural burning and smoke management (discussed below); the inclusion of field burning in the emissions inventories submitted for the State including the Statewide emission inventory for 1980; Memorandums of Understanding (MOU) to which Idaho is a party describing agricultural burning procedures; the 1994 Kootenai County Interim Air Quality Plan discussing impacts from field burning; correspondence; annual field burning reports; smoke management planning efforts and reports, and PM- 10 SIP submittals (e.g., ``PM-10 Air Quality Improvement Plan for Sandpoint'' (August, 1996) and ``Northern Ada County PM-10 SIP Maintenance Plan and Redesignation Request'' (September 25, 2002).)

      Idaho's legislative history, in particular, demonstrates that the State has consistently allowed the practice of crop residue burning. The State's 1985 Smoke Management Act specifically found that current knowledge supports the practice of burning grass seed fields. ``The legislature finds that current knowledge and technology support the practice of burning grass seed fields to control disease, weeds and pests and the practice of burning cereal crop residues where soil has inadequate decomposition capacity. It is the intent of the legislature to promote those agricultural activities currently relying on field burning and minimize any potential effects on air quality. It is further the intent of the legislature that the department shall not promulgate rules and regulations relating to a smoke management plan, but rather that the department cooperate with the agricultural community in establishing a voluntary smoke management program.'' Idaho Code 39-2301 (1985). Although this legislation was not specifically submitted to EPA as a SIP revision, it was included in a regulatory log as part of the rules submittal package approved on July 23, 1993 and was referenced in other SIP submittals. The 1996 PM-10 Air Quality Improvement Plan for Sandpoint, for instance, refers to the 1985 Smoke Management Act by explaining that ``agricultural burning in Kootenai and Benewah Counties is specifically addressed by Idaho Code 39-2301 which establishes a voluntary smoke management program to minimize the effects on air quality. The State law establishes a smoke management advisory board, sets a fee system and establishes the basic framework for a voluntary field burning program * * * .'' This reference to agricultural burning in the Sandpoint SIP submittal underscores the State's consistent view that even after approval of Idaho's open burning revisions in 1993, crop residue burning was not prohibited under the open burning provisions. The Sandpoint SIP was approved by EPA on June 26, 2002. 67 FR 43006.

      More recently, the Idaho legislature again found that ``the current knowledge and technology support the practice of burning crop residue to control disease, weeds, pests and to enhance crop

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      rotations.'' Idaho Code Chapter 48 Smoke Management and Crop Residue Disposal, 22-4801 (1999). The Act specifically provides that ``The open burning of crop residue grown in agricultural fields shall be an allowable form of open burning when the provisions of this chapter and any rules promulgated pursuant thereto and the environmental protection and health act and any rules promulgated thereto are met and when no other alternatives to burning are available * * *'' Idaho Code section 22-4803(1) (1999). The same language remains in the 2003 Smoke Management and Crop Residue Disposal Act. Idaho Code section 22-4801 (2003). Idaho's Crop Residue Disposal Rules are located at IDAPA 02.06.16. Thus, EPA believes that the State has consistently allowed the practice and never intended to prohibit it in its SIP. EPA has determined that the revision to include 58.01.01.617, is therefore consistent with the State's historical approach.\1\

      \1\ The commenter references a 1996 letter from the Idaho Attorney General's Office that indicated that field burning qualifies under the regulations as ``prescribed burning'' and thus is exempt from the prohibition on open burning. On its face this 1996 letter states that it does not constitute an Official Attorney General Opinion. EPA agrees with the commenter that the crop residue is not ``wildlands fuel'' and therefore disagrees with the analysis in the 1996 letter. A more recent 2004 letter from the Idaho Attorney General's Office indicated that while the prescribed burning category does not explicitly include crop residue disposal burning, the new section 617 was added to clarify that field burning is allowed and that the addition clarifies rather than relaxes the SIP. EPA agrees with the analysis in this letter.

      Review of EPA's past involvement in the issue also indicates that EPA understood agricultural burning to be allowed in Idaho and that the SIP does not prohibit it. EPA's acknowledgment that field burning is not prohibited has been documented in numerous ways over the years including, for example: EPA's response to PM10 SIP submittals for specific areas in Idaho (referenced above); EPA's February 2005 testimony before the Idaho State legislature; correspondence such as the February 18, 2004 letter from EPA to ISDA and EPA's other written annual assessments of Idaho's Agricultural Field Burning Program; EPA's participation in burn call decisions; EPA's participation in smoke management activities, such as those associated with the ISDA Crop Residue Disposal Advisory Committee; and Memorandums of Agreement or Memorandums of Understanding, such as the Memorandum of Agreement with the Nez Perce Tribe, IDEQ, ISDA, and EPA relating to Agricultural Smoke Management in the Clearwater Airshed, signed by EPA on October 18, 2002.

      In sum, EPA believes that approving the proposed SIP revision does not change or alter the existing SIP in Idaho which does not prohibit burning of crop residue. Rather this revision merely recognizes and clarifies that the burning of crop residue is not prohibited under the SIP so long as the burning is conducted in accordance with the Crop Residue Disposal Act and its regulations. It is EPA's position that the addition of IDAPA 58.01.01.617 is not a change or modification of a control requirement in effect before November 15, 1990. Therefore, the requirements of section 193 of the Act are satisfied.

      Finally, commenters' concern regarding adverse impacts resulting from crop residue burning during air pollution episodes is unfounded because the SIP would prevent burning in that instance. Additionally, commenters' concern regarding adverse impacts from burning pathological or hazardous wastes is unfounded because the SIP would prevent burning crop residue for that purpose.

      Comment: The SIP provision allowing for emergency action to protect public health and safety is illusory and the State does not have the ability or resources to enforce it.

      Response: The provision we are approving today, IDAPA 58.01.01.603.03, provides ``In accordance with Title 39, Chapter I, Idaho Code, the Department has the authority to require immediate abatement of any open burning in cases of emergency requiring immediate action to protect human health or safety.'' This provision simply makes clear that in accordance with Title 30, Chapter 1, Idaho Code the Department has the authority to require immediate abatement of open burning in cases requiring immediate action. Specifically, the State emergency authority at Idaho Code section 39-113 provides for the issuance of an order if the director finds that a generalized condition of air pollution exists and that it creates an imminent and substantial endangerment to the public health or welfare constituting an emergency requiring immediate action to protect human health or safety. This emergency authority provision at Idaho Code section 39-113 is part of the SIP and the provision at IDAPA 58.01.01.603.03 approved in this action strengthens the existing SIP authority.

      Comment: The commenter maintains that there is no demonstration under CAA section 110(l) that the proposed revision would not interfere with the attainment and maintenance of the NAAQS, and contends the revision would interfere with attainment and maintenance.

      Response: The proposed SIP revision is merely a clarification of the existing SIP and does not change or otherwise relax an existing control measure and therefore will not interfere with any applicable requirements concerning attainment and reasonable further progress or other applicable requirement of the Act. EPA believes that the requirement of section 110(l) is satisfied.

      Comment: The proposed SIP revision failed to provide for consultation under CAA section 110(a)(2)(M) with local political subdivisions like Bonner County.

      Response: Bonner County and other local political subdivisions were provided the opportunity to comment on the proposed SIP revision through the announcement of a public hearing in the State's Idaho Administrative Bulletin. IDEQ held subsequently a public hearing on September 11, 2002.

      Comment: The proposal to allow crop residue burning is inconsistent with air toxic requirements.

      Response: Section 112 of the Clean Air Act addresses air toxic requirements. Agricultural facilities such as those that engage in crop residue burning are not one of the listed categories of major or area sources of hazardous air pollutant emissions regulated under section 112 of the Clean Air Act. As a result, there are no EPA emission standards under section 112 regulating this activity. Therefore, it is currently impossible for crop residue burning to interfere with an applicable requirement under section 112. We encourage the commenter to work with the State to better address any air toxics associated with crop residue burning.

      Comment: The removal of the alternatives requirement in section 58.01.01.604 is ``unseemly'' and transforms the decision into one in which all that matters is the grower's profits.

      Response: EPA agrees that using alternatives to open burning should be encouraged. To that end, EPA continues to support the research and development of alternatives to burning. However, the alternatives provision in IDAPA section 58.01.01.604 is discretionary and the State need not exercise it. Moreover, the State has not, to date, chosen to exercise it. Therefore EPA concludes that removal of this provision does not constitute a relaxation because it is not comparable to the removal of a control measure from a SIP. EPA notes that Idaho has another mechanism to evaluate the use of crop residue burning. Under the 2003 Smoke

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      Management and Crop Residue Disposal Act, open burning of crop residue is allowed only after the Director of Agriculture determines there are no economically viable alternatives to burning. Idaho Code section 22- 4803. Thus, removing the alternatives requirement in IDAPA Section 58.01.01.604 does not change the need for the Director to make an affirmative, defensible decision that there are no economically viable alternatives.

      Comment: There is no showing that the revision will not adversely effect reasonable progress towards visibility improvement in Class I areas or that, due to effects from crop residue burning in Canada, the SIP is consistent with United States' obligations under international laws and treaties.

      Response: As explained above, the proposed SIP revision does not change or otherwise relax the existing crop residue disposal program or the existing practice in the State of Idaho. Because the program remains unchanged, approval of the SIP revision will not adversely affect reasonable progress towards visibility improvement in Class I areas or conflict with the United States' obligations under international laws and treaties.

      Comment: The commenter requests that EPA hold a public hearing on the proposed revision, preferably in Northern Idaho.

      Response: The comment received was thorough, fully documented and clearly articulated the concerns of the commenters. EPA has determined that a public hearing is not necessary.

2. Summary of Final Action

   EPA is approving all of the revisions to the Rules for the Control of Air Pollution in Idaho, section 58.01.01.600 through section 58.01.01.617, as submitted by IDEQ on May 22, 2003.

3. 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, I certify 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 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.).

   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 August 10, 2005. 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 52

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

   Dated: June 29, 2005. Daniel D. Opalski, Acting Regional Administrator, Region 10.

   0 Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

   PART 52--[AMENDED]

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

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

   Subpart N--Idaho

   0 2. In Sec. 52.670(c), the table in paragraph (c) is amended by revising the entries for 600 through 603, removing the entry for 604, revising the entries for 606 through 610, 612, 613, 615, 616 and adding the entry for 617 after existing entry 616 to read as follows:

   Sec. 52.670 Identification of plan.

   * * * * *

   (c) * * *

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   Idaho Administrative Procedures Act (IDAPA) Chapter 58, Rules for the Control of Air Pollution in Idaho, Previously Codified at IDAPA Chapter 39 (Appendix A.3)

   58.01.01--Rules for the Control of Air Pollution in Idaho

   State State citation

   Title/subject

   effective date EPA approval date Explanations

   * * * * * * * 600..................... Rules for Control of Open

   3/21/03 07/11/05 [Insert page Burning.

   number where the document begins]. 601..................... Fire Permits, Hazardous

   3/21/03 07/11/05 [Insert page Materials and Liability.

   number where the document begins]. 602..................... Nonpreemption of Other

   3/21/03 07/11/05 [Insert page Jurisdictions.

   number where the document begins]. 603..................... General Restrictions......

   3/21/03 07/11/05 [Insert page 5/1/94 number where the document begins]. 606..................... Categories of Allowable

   3/21/03 07/11/05 [Insert page Burning.

   number where the document begins]. 607..................... Recreational and Warming

   3/21/03 07/11/05 [Insert page Fires.

   number where the document begins]. 608..................... Weed Control Fires........

   5/1/94 07/11/05 [Insert page number where the document begins]. 609..................... Training Fires............

   3/21/03 07/11/05 [Insert page number where the document begins]. 610..................... Industrial Flares.........

   3/21/03 07/11/05 [Insert page number where the document begins]. * * * * * * * 612..................... Landfill Disposal Site

   3/21/03 07/11/05 [Insert page Fires.

   number where the document begins]. 613..................... Orchard Fires.............

   3/21/03 07/11/05 [Insert page 5/1/94 number where the document begins]. * * * * * * * 615..................... Dangerous Material Fires..

   3/21/03 07/11/05 [Insert page number where the document begins]. 616..................... Infectious Waste Burning..

   3/21/03 07/11/05 [Insert page number where the document begins]. 617..................... Crop Residue Disposal.....

   3/21/03 07/11/05 [Insert page number where the document begins].

   * * * * *

   [FR Doc. 05-13557 Filed 7-8-05; 8:45 am]

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