[Federal Register Volume 64, Number 58 (Friday, March 26, 1999)]
[Rules and Regulations]
[Pages 14620-14624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7424]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[UT10-1-6700a; UT-001-0014a; UT-001-0015a; FRL-6314-8]
Approval and Promulgation of Air Quality Implementation Plans;
Utah; Foreword and Definitions, Revision to Definition for Sole Source
of Heat and Emissions Standards, Nonsubstantive Changes; General
Requirements, Open Burning and Nonsubstantive Changes; and Foreword and
Definitions, Addition of Definition for PM10 Nonattainment
Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action approving State
Implementation Plan (SIP) revisions submitted by the Governor of the
State of Utah. On July 11, 1994, the Governor submitted a SIP revision
for the purpose of establishing a modification to the definition for
``Sole Source of Heat'' in UACR R307-1-1; this revision also made a
change to UACR R307-1-4, ``Emissions Standards.'' On February 6, 1996,
a SIP revision to UACR R307-1-2 was submitted by the Governor of Utah
which contains changes to Utah's open burning rules, requiring that the
local county fire marshal has to establish a 30-day open burning window
in order for open burning to be allowed in areas outside of
nonattainment areas. Other minor changes are made in this revision to
UACR R307-1-2.4, ``General Burning'' and R307-1-2.5, ``Confidentiality
of Information.'' In addition, on July 9, 1998, SIP revisions were
submitted that would add a definition for ``PM10
Nonattainment Area'' to UACR R307-1-1. This action is being taken under
section 110 of the Clean Air Act.
DATES: This rule is effective on May 26, 1999 without further notice,
unless EPA receives adverse comment by April 26, 1999. If adverse
comment is received, EPA will publish a timely withdrawal of the direct
final rule in the Federal Register informing the public that the rule
will not take effect.
ADDRESSES: Written comments may be mailed to Richard R. Long, Director,
Air and Radiation Program, Mailcode 8P-AR, Environmental Protection
Agency (EPA), Region VIII, 999 18th Street, Suite 500, Denver,
Colorado, 80202-2466. Copies of the documents relevant to this action
are available for public inspection during normal business hours at the
Air and Radiation Program, Environmental Protection Agency, Region
VIII, 999 18th Street, Suite 500, Denver, Colorado, 80202 and copies of
the Incorporation by Reference material are available at the Air and
Radiation Docket and Information Center, Environmental Protection
Agency, 401 M Street, SW, Washington, DC 20460. Copies of the State
documents relevant to this action are available for public inspection
at the Utah Department of Environmental Quality, Division of Air
Quality, 150 North 1950 West, Salt Lake City, Utah 84114-4820.
FOR FURTHER INFORMATION CONTACT: Cindy Rosenberg, EPA, Region VIII,
(303) 312-6436.
SUPPLEMENTARY INFORMATION: On July 11, 1994, February 6, 1996, and July
9, 1998, the State of Utah submitted formal revisions to its State
Implementation Plan (SIP). The July 11, 1994, SIP submittal consists of
a modification to the definition for ``Sole Source of Heat'' in UACR
R307-1-1, as well as a nonsubstantive change to UACR R307-1-4,
``Emissions Standards.'' The February 6, 1996, submittal made revisions
to UACR R307-1-2 and contains changes to Utah's open burning rules to
require that the local county fire marshal establish a 30-day open
burning window in order for open burning to be allowed in areas outside
of nonattainment areas. Other minor changes are made in this revision
to UACR R307-1-2.4, ``General Burning'' and R307-1-2.5,
``Confidentiality of Information.'' The July 9, 1998, submittal adds a
definition for ``PM10 Nonattainment Area'' to UACR R307-1-1.
I. Background
On July 11, 1994, the definition for ``Sole Source of Heat'' was
revised in UACR R307-1-1 such that households with only small portable
heaters are included in the definition to allow these households to
burn during mandatory no-burn periods. Revisions were also made to UACR
R307-1-4 to include a new sub-section on ``PM10 Contingency
Plans;'' these plans were requested to be withdrawn by the Governor in
a November 9, 1998, letter to the Regional Administrator. EPA returned
the portions of these plans with a letter to the Governor on January
29, 1999. However, a nonsubstantive change was made in this section as
a result of the revision. This change moves section 4.13.3 D to section
4.13.3.E. For the purposes of ease and efficiency for the State, the
revised sub-section numbering is being approved.
On February 6, 1996, the State of Utah submitted its revised open
burning regulations in order to make them more consistent with Utah
Code 65A-8-9. The State rules that were approved earlier in the SIP
allow for more leniency with respect to open burning windows than does
the Utah Code.
The following are requirements for open burning under Utah Code
65A-8-9 which pertain to the rule change addressed by the SIP:
1. June 1 through October 31 of each year is to be a closed fire
season throughout the State.
2. The state forester has jurisdiction over the types of open
burning allowed with a permit during the closed fire season.
The open burning requirement that was previously in the Utah SIP
pertaining to this rule change is as follows:
For areas outside of Salt Lake, Davis, Weber, and Utah Counties
(nonattainment areas), open burning is allowed during the periods of
March 30 through May 30 and September 15 through October 30 with a
permit issued by the authorized local authority.
The open burning requirement that was adopted by the Utah Air
Quality Board on September 6, 1995 is as follows:
For areas outside of the designated nonattainment areas, open
burning is allowed during the March 30 through May 30 period and the
September 15 through October 30 period if the local county fire marshal
has established a 30-day window for such open burning to occur with a
permit issued by the authorized local authority and the state forester
has allowed for such permit to be issued.
On July 9, 1998, the State submitted a revision to UACR R307-1-1,
``Foreword and Definitions.'' The State of Utah's new definition is
such that, `` `PM10 Nonattainment Area' means Salt Lake
County, Utah County, or Ogden City.'' This definition was included in
the State rules in order to ensure that all requirements for
PM10 nonattainment areas remain in effect after the
revocation of the pre-existing NAAQS for PM10.
[[Page 14621]]
II. Summary of SIP Revision
A. Review of Revisions
1. Review of the Changes to ``Foreword and Definitions'' Regulations
Concerning the Definition for ``Sole Source of Heat''
The residential woodburning regulation revision was developed by
the Utah Division of Air Quality with input from local governments and
the public. The Air Quality Board approved two changes to the
woodburning rule at the December 9, 1993, hearing which were later
submitted by the Governor. The revision to R307-1-1 redefines the
definition for ``Sole Source of Heat.'' This change defines which
households may continue burning during woodburning bans so that those
households with small portable heaters still qualify under the
definition of households for which wood or coal burning is the only
source of heat. The second revision which was made to the residential
woodburning regulations under R307-1-4.13, specifies the actions which
must be taken if contingency measures are implemented in the Salt Lake,
Davis or Utah County nonattainment areas. These plans were requested to
be withdrawn by the Governor in a November 9, 1998, letter to the
Regional Administrator. EPA returned the portions of these plans with a
letter to the Governor on January 29, 1999. However, a nonsubstantive
change was made in this section as a result of the revision. This
change moves section 4.13.3 D to section 4.13.3.E. For the purposes of
ease and efficiency for the State, the revised sub-section number is
being approved, and thus, there will be no section 4.13.3.D.
2. Review of the Changes to General Requirements Regulations Concerning
Open Burning Regulations and Minor Changes to Rules
Utah made revisions to its open burning regulations for areas
outside of nonattainment areas because they were found to be in
conflict with Utah Code 65A-8-9. The Code prohibits open burning
between June 1 and October 31, unless a permit has been issued, whereas
the open burning regulations allowed burning between March 30 and May
30 and between September 15 and October 30 in areas outside of
nonattainment areas. The change to the open burning rule requires that
the local county fire marshal establish a 30-day window during the
spring and fall open burning windows in areas outside of Salt Lake,
Davis, Weber, and Utah Counties in order for open burning to occur. In
regards to the fall window, upon the decision of the state forester
under Section 65A-8-9 of the Utah Code, the local county fire marshal
may establish a 30-day period between September 15 and October 30 as an
open burning period in which permits are required to conduct open
burning. These changes were made under UACR R307-1-2.4.4. The proposed
changes had originally not included the fall open burning window, but
after adverse public comment the proposed rule was changed to allow for
fall burning under the above provisions.
Other minor changes were made to the open burning regulations as
well. Section R307-1-2.4, ``General Burning'' has had numbers added to
it to make it more consistent with Utah Code 19-2-114. Section R307-1-
2.4.3.C is corrected to refer to Subsection R307-17-3 in place of
section 4.13.3 of the regulations. More minor changes were also made
throughout the open burning regulations to change capitalization and to
correct references.
Minor changes were also made under R307-1-2.5, ``Confidentiality of
Information'' including a changed statutory reference in R307-1-
2.5.1.B. Additional changes were made to correct references and
capitalization of section headings.
3. Review of the Changes to ``Foreword and Definitions'' Regulations
Concerning the Addition of a Definition for PM10
Nonattainment Areas
On January 7, 1998, the Air Quality Board approved the addition of
the definition for ``PM10 Nonattainment Area.'' This
revision ensures that the currently designated nonattainment areas
within the State for PM10 will be held to the same
requirements after the pre-existing PM10 NAAQS are revoked
as they were prior to the revocation of the NAAQS. This action is
important in order to prevent the areas from backsliding during the
interim period between the revocation of the NAAQS and the designation
of the areas under the revised standards for PM10.
B. Procedural Background
The CAA requires States to observe certain procedural requirements
in developing SIP revisions for submittal to EPA. Section 110(a)(2) of
the CAA provides that each SIP revision be adopted after going through
a reasonable notice and public hearing process prior to being submitted
by a State to EPA. EPA has evaluated each of the above Governor's
submittals and discusses them below.
1. July 11, 1994 submittal: Copies of the proposed changes were
made available to the public and the State held public hearings for the
changes to ``Foreword and Definitions'' and ``Emissions Standards'' on
October 5, 1993, October 6, 1993, October 7, 1993, and October 13,
1993. The changes to the State's rules were adopted by the Air Quality
Board on December 9, 1993 and became effective on January 31, 1994; the
revision was formally submitted by the Governor on July 11, 1994. EPA
determined the submittal was complete on September 22, 1994. A portion
of this revision included PM10 contingency plans which were
requested to be withdrawn by the Governor in a November 9, 1998, letter
to the Regional Administrator. EPA returned this portion of the
submittal with a letter to the Governor on January 29, 1999.
2. February 6, 1996 submittal: Copies of the proposed changes were
made available to the public and the State held public hearings for the
changes to ``General Requirements'' on July 14 (two separate hearings),
17, 18, and 19, 1995. The changes to the State's rule were adopted by
the Air Quality Board on September 6, 1995 and became effective on
October 31, 1995; the new open burning regulations, along with the
other nonsubstantive changes to ``General Requirements,'' were formally
submitted by the Governor on February 6, 1996. EPA determined the
submittal was complete on August 14, 1996.
3. July 9, 1998 submittal: Copies of the proposed changes were made
available to the public and the State held public hearings for the
changes to ``Foreword and Definitions'' on December 16, 1997 and
January 5, 1998. The changes to the State's rule were adopted by the
Air Quality Board on January 7, 1998 and became effective on January 8,
1998; the new definition was formally submitted by the Governor on July
9, 1998. EPA determined the submittal was complete on October 16, 1998.
III. Final Action
EPA is approving the Governor's submittal of July 11, 1994, to
revise the definition for ``Sole Source of Heat'' to define which
households may continue burning during woodburning bans so that those
households with small portable heaters still qualify under the
definition of households for which wood or coal burning is the only
source of heat. EPA is also approving a change made under ``Emissions
Standards,'' which moves section 4.13.3 D to section 4.13.3.E. EPA is
approving the submittal of February 6, 1996, which made changes to
Utah's open burning regulations (in ``General Burning'') to require
that the local county fire marshal establish a 30-day window
[[Page 14622]]
during which open burning activities may occur in areas outside of
nonattainment areas during the spring and fall closed burning seasons.
This applies to all areas in the State outside of Salt Lake, Davis,
Weber, and Utah Counties where the state forester has permitted the
local county fire marshal to establish the open burning window. Minor
changes were also made to R307-1-2.4, ``General Burning'' as well as
R307-1-2.5, ``Confidentiality of Information.'' Lastly, EPA is
approving the Governor's submittal of July 9, 1998, adding a definition
for ``PM10 Nonattainment Area'' in R307-1-1 to ensure that
requirements for nonattainment areas are retained in Salt Lake County,
Utah County, and Ogden City after the pre-existing PM10
NAAQS are revoked.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in the ``Proposed Rules'' section of today's
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the SIP revision should
adverse comments be filed. This rule will be effective May 26, 1999
without further notice unless the Agency receives adverse comments by
April 26, 1999. If the EPA receives adverse comments, EPA will publish
a timely withdrawal in the Federal Register informing the public that
the rule will not take effect. EPA will address all public comments in
a subsequent final rule based on the proposed rule. The EPA will not
institute a second comment period on this action. Any parties
interested in commenting must do so at this time.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
B. Executive Order 12875
Executive Order 12875: Enhancing the Intergovernmental Partnership
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a state, local,
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected state, local, and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of state, local, and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule does not create a mandate on State, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of Executive
Order 12875 do not apply to this rule.
C. 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 E.O.
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.
This rule is not subject to E.O. 13045 because it does not involve
decisions intended to mitigate environmental health or safety risks.
D. Executive Order 13084
Executive Order 13084: Consultation and Coordination With Indian Tribal
Governments
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly affects 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 the Office of Management and Budget, 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 rule
does not significantly or uniquely affect the communities of Indian
tribal governments. Accordingly, the requirements of section 3(b) of
Executive Order 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This final rule will not have a significant impact on a
substantial number of small entities because SIP approvals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP approval does not
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Clean Air Act, preparation of flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976);
42 U.S.C. 7410(a)(2).
F. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 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
[[Page 14623]]
aggregate; or to 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.
EPA has determined that the approval action promulgated does 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 Federal action approves pre-
existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
G. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. section 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 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. This rule is not a
``major rule'' as defined by 5 U.S.C. section 804(2).
H. Petitions for Judicial Review
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 May 26, 1999. 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: March 11, 1999.
William P. Yellowtail,
Regional Administrator, Region VIII.
40 CFR part 52 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 TT--Utah
2. Section 52.2320 is amended by adding paragraph (c)(41) to read
as follows:
Sec. 52.2320 Identification of plan.
* * * * *
(c) * * *
(41) On July 11, 1994 the Governor of Utah submitted revisions to
the Utah State Implementation Plan (SIP) to revise the definition for
``Sole Source of Heat'' under UACR R307-1-1, ``Foreword and
Definitions,'' to allow the exemption of those households with small
portable heating devices from mandatory no-burn periods. This revision
also made changes to the residential woodburning regulations under UACR
R307-1-4.13.3 ``No-Burn Periods,'' which specifies the actions which
must be taken if contingency measures are implemented in the Salt Lake,
Davis or Utah County nonattainment areas. These plans were requested to
be withdrawn by the Governor in a November 9, 1998, letter to the
Regional Administrator. EPA returned the portions of these plans with a
letter to the Governor on January 29, 1999. A nonsubstantive change was
made in this section as a result of the revision which moves section
4.13.3 D to section 4.13.3.E; this change was also approved by EPA. On
February 6, 1996 the Governor of Utah submitted revisions to the Utah
State Implementation Plan to revise Utah's open burning regulations,
under UACR R307-1-2.4, to require that the local county fire marshal
establish 30-day open burning windows during the spring and fall closed
burning seasons in areas outside of Salt Lake, Davis, Weber, and Utah
Counties as granted by the state forester. There were also minor
changes made to the open burning regulations under UACR R307-1-2.4,
``General Burning'' and minor changes made to UACR R307-1-2.5
``Confidentiality of Information.'' On July 9, 1998 the Governor of
Utah submitted revisions to the Utah SIP to add a definition for
``PM10 Nonattainment Area,'' under UACR R307-1-1, ``Foreword
and Definitions,'' to ensure that all requirements for nonattainment
areas are retained in Salt Lake County, Utah County and Ogden City
after the pre-existing PM10 standards are revoked.
(i) Incorporation by reference.
(A) UACR R307-1-1, a portion of ``Foreword and Definitions,''
revision of definition for ``Sole Source of Heat,'' as adopted by Utah
Air Quality Board on December 9, 1993, effective on January 31, 1994.
(B) UACR R307-1-4, a portion of ``Emissions Standards,'' as adopted
by Utah Air Quality Board on December 9, 1993, effective on January 31,
1994.
(C) UACR R307-1-2, a portion of ``General Requirements,'' open
burning changes and nonsubstantive wording changes, as adopted by Utah
Air Quality Board on September 6, 1995, effective on October 31, 1995.
(D) UACR R307-1-1, a portion of ``Foreword and Definitions,'
addition of definition for ``PM10 Nonattainment Area,'' as
adopted by Utah Air Quality Board on January 7, 1998, effective on
January 8, 1998.
(ii) Additional Material.
(A) July 20, 1998, fax from Jan Miller, Utah Department of Air
Quality, to Cindy Rosenberg, EPA Region VIII, transmitting Utah Code
65A-8-9, regarding closed fire seasons.
(B) October 21, 1998, letter from Richard R. Long, Director, EPA
Air and Radiation Program, to Ursula Trueman, Director, Utah Division
of Air Quality, requesting that Utah withdraw the submitted Salt Lake
and Davis County PM10 Contingency Measure SIP revisions, the
Utah County PM10 Contingency Measure SIP revisions, and the
Residential Woodburning in Salt Lake, Davis and Utah Counties
PM10 Contingency Measure SIP revision.
(C) November 9, 1998, letter from the Governor of Utah, to William
Yellowtail, EPA Region VIII Administrator, requesting that the
submitted Salt Lake and Davis County and Utah County PM10
Contingency Measure SIP revisions and the Residential Woodburning in
Salt Lake, Davis and Utah Counties PM10 Contingency Measure
SIP revision be withdrawn.
(D) December 16, 1998, letter from Larry Svoboda, EPA Region VIII,
to Ursula Trueman, Utah Department of Air Quality, clarifying revisions
that were made to UACR R307-1-4.
(E) January 5, 1999, letter from Ursula Trueman, Utah Department of
Air Quality, to William Yellowtail, EPA Region VIII Administrator,
concurring on EPA's clarification of revisions that were made to UACR
R307-1-4.
[[Page 14624]]
(F) January 29, 1999, letter from William Yellowtail, EPA Region
VIII Administrator, to the Governor of Utah returning the Salt Lake and
Davis County and Utah County PM10 Contingency Measure SIP
revisions and the Residential Woodburning in Salt Lake, Davis and Utah
Counties PM10 Contingency Measure SIP revision.
[FR Doc. 99-7424 Filed 3-25-99; 8:45 am]
BILLING CODE 6560-50-P
