[Federal Register Volume 62, Number 68 (Wednesday, April 9, 1997)]
[Rules and Regulations]
[Pages 17093-17095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9108]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[UT-001-0001a; FRL-5802-2]
Clean Air Act Approval and Promulgation of Air Quality
Implementation Plan Revision for Utah; Visibility Protection
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA approves a revision to Utah's State Implementation Plan
(SIP) for Visibility Protection, as submitted by the Governor with a
letter dated July 25, 1996. The revision was adopted by the State in
1993 to address comments received from the 1992 Utah Legislature's
Administrative Rules Review Committee regarding the need to remove a
visibility policy statement from a regulation format (since it was not
a rule). The State responded by deleting the policy statement from the
Utah Air Conservation Regulations and adding the text into the
Visibility Protection SIP. This submittal was a necessary
``housekeeping'' step to bring the federally approved SIP up-to-date
with administrative revisions that took place at the State in 1993.
DATES: This action will become effective on June 9, 1997 unless adverse
comments are received by May 9, 1997. If the effective date is delayed,
timely notice will be published in the Federal Register.
ADDRESSES: Comments should be addressed to: Richard R. Long, Director,
Air Program, EPA Region VIII at the address listed below. Copies of the
State's submittal and other information are available for inspection
during normal business hours at the following locations: Air Program,
Environmental Protection Agency, Region VIII, 999 18th Street, suite
500, Denver, Colorado 80202-2405; and Utah Department of Environmental
Quality, Division of Air Quality, 150 North 1950 West, P.O. Box 144820,
Salt Lake City, Utah 84114-4820.
FOR FURTHER INFORMATION CONTACT: Amy Platt, 8P2-A, Environmental
Protection Agency, Region VIII, (303) 312-6449.
SUPPLEMENTARY INFORMATION:
I. Background
Section 169A of the Clean Air Act (CAA or Act),1 42 U.S.C.
7491, establishes as a National goal the prevention of any future, and
the remedying of any existing, anthropogenic visibility impairment in
mandatory Class I Federal areas 2 (referred to herein as the
``National goal'' or ``National visibility goal''). Section 169A calls
for EPA to, among other things, issue regulations to assure reasonable
progress toward meeting the National visibility goal, including
requiring each State with a mandatory Class I Federal area to revise
its SIP to contain such emission limits, schedules of compliance and
other measures as may be necessary to make reasonable progress toward
meeting the National goal. CAA section 169A(b)(2). Section 110(a)(2)(J)
of the CAA, 42 U.S.C. 7410(a)(2)(J), similarly requires SIPs to meet
the visibility protection requirements of the CAA.
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\1\ The Clean Air Act is codified, as amended, in the U.S. Code
at 42 U.S.C. 7401, et seq.
\2\ Mandatory class I Federal areas include international parks,
national wilderness areas, and national memorial parks greater than
five thousand acres in size, and national parks greater than six
thousand acres in size, as described in section 162(a) of the Act
(42 U.S.C. 7472(a)). Each mandatory Class I Federal area is the
responsibility of a ``Federal land manager'' (FLM), the Secretary of
the department with authority over such lands. See section 302(i) of
the Act, 42 U.S.C. 7602(i).
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EPA promulgated regulations that require affected States to, among
other things, (1) coordinate development of SIPs with appropriate
Federal Land Managers (FLMs); (2) develop a program to assess and
remedy visibility impairment from new and existing sources; and (3)
develop a long-term (10-15 years) strategy to assure reasonable
progress toward the National visibility goal. See 45 FR 80084, December
2, 1980 (codified at 40 CFR 51.300-51.307). The regulations provide for
the remedying of visibility impairment that is reasonably attributable
to a single existing stationary facility or small group of existing
stationary facilities. These regulations require that the SIPs provide
for periodic review, and revision as appropriate, of the long-term
strategy not less frequently than every three years, that the review
process include consultation with the appropriate FLMs, and that the
State provide a report to the public and EPA that includes an
assessment of the State's progress toward the National visibility goal.
See 40 CFR 51.306(c).
The Utah Governor submitted a SIP revision for Visibility
Protection with a letter dated April 26, 1985. The submittal met the
requirements for visibility monitoring (40 CFR 51.305) and visibility
New Source Review (40 CFR 51.307). EPA approved the submittal on May
30, 1986 (51 FR 19550).
On November 24, 1987 (52 FR 45132), EPA disapproved the SIPs of
states, including Utah, that failed to comply with the requirements of
the provisions of 40 CFR 51.302 (visibility general plan requirements)
and 51.306 (visibility long-term strategy). EPA also incorporated
corresponding Federal plans and regulations into the SIPs of these
states pursuant to section 110(c)(1) of the CAA, 42 U.S.C. 7410(c)(1).
[[Page 17094]]
The Governor of Utah submitted a SIP revision for visibility
protection with a letter dated December 11, 1987. The submittal
satisfied requirements for visibility general plan requirements (40 CFR
51.302) and visibility long-term strategy (40 CFR 51.306). EPA approved
this SIP revision on January 17, 1989 (54 FR 1694), and this revision
replaced the Federal plans and regulations in the Utah Visibility
Protection SIP.
The April 26, 1985 submittal and December 11, 1987 submittal
discussed above currently constitute the Utah Visibility Protection
SIP.
II. This Action
With a letter dated July 25, 1996, the Governor of Utah submitted a
revision to the Utah Visibility Protection SIP. This submittal was a
necessary ``housekeeping'' step to bring the federally approved SIP up-
to-date with administrative revisions that took place at the State in
1993.
In 1992, the Utah Legislature reviewed the State's air quality
rules and requested that the Utah Air Quality Board's policy on scenic
views be removed from the rules, since it was a policy statement and
not a rule. The Board responded by deleting the pertinent section of
the rules and adding the text to the Visibility Protection SIP. The
changes became effective on March 29, 1993.
A. Analysis of State Submission
1. Procedural Background
The CAA requires States to observe certain procedural requirements
in developing implementation plans and plan revisions for submission to
EPA. Section 110(a)(2) of the CAA provides that each implementation
plan submitted by a State must be adopted after reasonable notice and
public hearing. Section 110(l) of the CAA similarly provides that each
revision to an implementation plan submitted by a State under the CAA
must be adopted by such State after reasonable notice and public
hearing.
To entertain public comment, the Utah Air Quality Board (UAQB),
after providing adequate notice, held a public hearing on January 28,
1993 to consider the proposed revisions to the Utah Visibility
Protection SIP and Utah Air Conservation Regulations. Subsequent to the
public hearing, the UAQB adopted the revisions on March 26, 1993, and
the revisions became effective on March 29, 1993. The Governor of Utah
submitted the revisions to EPA with a letter dated July 25, 1996.
2. Content of SIP Revision
a. Utah Air Conservation Regulation R307-5 Deleted and Text Added to
Visibility Protection SIP
The Utah Legislature's Administrative Rules Review Committee
reviewed R307-5 and found it to be a policy statement of the UAQB
rather than a rule. In fact, the title of the rule was ``Policy of the
Air Conservation Committee Concerning the Protection of Scenic Views
Associated with the Mandatory Class I Areas from Significant Impairment
for Visibility.'' This rule was deleted and the bulk of it was added to
the text of the Utah SIP, Section 15,3 Visibility Protection, in a
new subsection 15.10. This policy statement, which had already been
approved in rule format, is simply being transferred to the SIP text as
follows.
\3\ Please note that Utah has renumbered its SIP since the State
adoption of these revisions. Visibility protection is now in Section
XVII of the SIP. However, the revision for the renumbering has not
been acted on yet by EPA.
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The State recognizes that visibility and the ability to see the
great scenic views in Southern Utah is a rare and unique treasure
and should be preserved, both for the benefit and pleasure of Utah
residents, and to support our large tourist industry. In addition to
the distance one can see, the clarity, color, and detail of the
visible features are also important.
The [Air Conservation] Committee recommends that the Governor of
Utah seek the cooperation of the Western Governors' Association to
establish a task force on regional haze. The task force should be
composed of state air program directors and would provide a
recommendation to the Governor on the management of regional haze.
The task force would be expected to hold hearings, create work
groups, involve local area governments and federal agencies (EPA and
National Park Service) in developing information and formulating
recommendations. Based on the recommendations of the task force, the
governors would develop a policy on controlling regional haze for
the protection of visibility in the western United States where
visibility is an important ``treasure'' and resource.
EPA agrees that the above statement represents policy, not
regulation, and therefore, the administrative ``housekeeping'' action
of deleting the language from the Air Conservation Regulations and
adding it to the text of the Visibility Protection SIP was appropriate.
The revision is approvable.
b. Utah Air Conservation Regulation R307-2 Amended
As a result of revising the Visibility Protection section of the
SIP to create a new subsection 15.10 that contains the policy regarding
scenic views, R307-2 also was amended. This rule, R307-2, incorporates
the entire Utah SIP by reference and was amended to reflect the revised
adoption date by the UAQB for subsection 15.10. EPA is not acting on
this amendment to R307-2 because EPA's action in this document is
specific to the Visibility Protection section of the SIP and not the
entire Utah SIP.
III. Final Action
EPA is approving a revision to the Utah Visibility Protection SIP
as submitted to EPA with a letter dated July 25, 1996. This revision
deletes R307-5, which contained the Utah Air Quality Board's policy
statement on scenic views, and transfers the policy statement to the
text of the Visibility Protection SIP in a new subsection 15.10. EPA is
not acting on the amended R307-2.
EPA is publishing this action without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective June 9, 1997 unless, by May 9, 1997, adverse or critical
comments are received.
If EPA receives such comments, this action will be withdrawn before
the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will be
addressed in a subsequent final rule based on this action serving as a
proposed rule. EPA will not institute a second comment period on this
action. Any parties interested in commenting on this action should do
so at this time. If no such comments are received, the public is
advised that this action will be effective on June 9, 1997.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to a SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
IV. Administrative Requirements
A. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10,
[[Page 17095]]
1995 memorandum from Mary Nichols, Assistant Administrator for Air and
Radiation. The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify 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 government entities with jurisdiction over populations
of less than 50,000.
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 impose any new requirements, I certify
that it does not have a significant impact on any small entities
affected. Moreover, due to the nature of the Federal-state relationship
under the Act, preparation of a regulatory flexibility analysis would
constitute Federal inquiry into the economic reasonableness of state
action. The Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66
(1976); 42 U.S.C. 7410(a)(2).
C. 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 aggregate; or to
the private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
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 proposes to
approve pre-existing requirements under State or local law, and imposes
no new Federal requirements. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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
General Accounting Office prior to publication of this rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
E. 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 June 9, 1997. 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, Nitrogen dioxide, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides.
Dated: March 14, 1997.
Max H. Dodson,
Acting Regional Administrator.
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. 7401-7671q.
2. Section 52.2320 is amended by adding paragraph (c)(36) to read
as follows:
Sec. 52.2320 Identification of plan.
* * * * *
(c) * * *
(36) The Governor of Utah submitted a revision to Utah's State
Implementation Plan (SIP) for Visibility Protection with a letter dated
July 25, 1996. The revision was made to add a new subsection 15.10 to
the SIP to include a policy statement regarding scenic views which was
deleted from the Utah Air Conservation Regulations.
(i) Incorporation by reference.
(A) Utah State Implementation Plan, Subsection 15.10, Policy of the
Air Conservation Committee Concerning the Protection of Scenic Views
Associated with Mandatory Class I Areas from Significant Impairment for
Visibility, adopted on March 26, 1993, and effective on March 29, 1993.
(ii) Additional material.
(A) A July 25, 1996 letter from Michael O. Leavitt, Utah Governor,
to Jack McGraw, EPA Region VIII Acting Regional Administrator, in which
it was communicated, among other things, that the Utah Air Quality
Board deleted R307-5 from the Utah Air Conservation Regulations. The
deletion was effective March 29, 1993.
[FR Doc. 97-9108 Filed 4-8-97; 8:45 am]
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