04-12700. Clean Air Act Approval and Promulgation of State Implementation Plans; Idaho

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The EPA is proposing to approve 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:

Comments must be received on or before July 7, 2004.

ADDRESSES:

Submit your comments, identified by Docket ID No. ID-03-003, by one of the following methods:

A. Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments.

B. E-mail: [e-mail]

C. Fax: [phone]

D. Mail: Office of Air Quality, Attn: Environmental Protection Agency, Attn: Donna Deneen, Mailcode: OAQ-107, 1200 Sixth Avenue, Seattle, WA 98101.

E. Hand Delivery: Environmental Protection Agency Region 10, Attn: Donna Deneen (OAQ-107), 1200 Sixth Avenue, Seattle, WA 98101, 9th floor. Such deliveries are only accepted during EPA's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. ID-03-003. EPA's policy is that all comments received will be included in the public docket without change, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov, or e-mail. The Federal regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in an index. Although listed in the index, some information may not be publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Publicly available docket materials are available in hard copy at EPA Region 10, Office of Air Quality, 1200 Sixth Avenue, Seattle, Washington 98101. A copy of the file, as it exists on the date of proposal, is also available for public viewing at EPA's Idaho Operations Office at EPA Region 10, Idaho Operations Office, 1435 N. Orchard St., Boise, ID 83706. EPA is open Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding legal holidays. Please contact the individual listed in the For Further Information Contact section to schedule your inspection.

FOR FURTHER INFORMATION CONTACT:

Donna Deneen, Office of Air Quality, Region 10, OAQ-107, Environmental Protection Agency, 1200 Sixth Avenue, Seattle, WA 98101; phone: [phone]; fax number: [phone]; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background Information

1. What Revisions to the Idaho SIP Are We Proposing To Approve?

2. Why Are We Proposing To Approve These Revisions?

3. Summary of Proposed Action

II. Statutory and Executive Orders Review

I. Background Information

1. What Revisions to the Idaho SIP Are We Proposing To Approve?

We are proposing to approve 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. The revisions include modifications of existing language, the addition of two clarifying provisions, and the deletion of a never-before-used provision. More discussion on these revisions is provided below.

2. Why Are We Proposing To Approve These Revisions?

We are proposing to approve these revisions related to open burning in Idaho's SIP because they serve to clarify and strengthen the State's existing SIP and are consistent with Clean Air Act requirements. Of the provisions that IDEQ modified (i.e., not added or deleted), all are either editorial revisions, clarifications of existing provisions, or process revisions. By the nature of these types of modifications, they have no substantive impact on rule requirements and, therefore, are approvable.

IDEQ added two clarifying sections to its rules. The first is section 58.01.01.603.02—Emergency Authority. This section provides that IDEQ has the authority to require immediate abatement of open burning in cases of emergency requiring immediate action to protect human health or safety. This provision clarifies the existing authority provided in Idaho Code Chapter 39 Title 1 (and approved at 68 FR 2217, January 16, 2003) to require immediate abatement of air pollution in emergency cases. Idaho Code section 39-112. Section 58.01.01.603.02 is approvable because it clarifies and therefore strengthens the existing federally-approved requirements.

IDEQ added a second clarifying section at 58.01.01.617. This section clarifies that crop residue disposal is an allowable category of open burning. The current Idaho SIP states that “The purpose of section 606 through 616 is to establish categories of open burning that are allowed when done according to prescribed conditions. Unless specifically exempted each category in section 606 through 616 is subject to all of sections 600 through 604.” IDAPA 58.01.01.606. The new clarifying section at 58.01.01.617 is intended to clarify that the open burning of crop residue on fields where the crops were grown is also an allowable form of open burning if conducted in accordance with Idaho's Smoke Management and Crop Residue Disposal Act, Chapter 48, Title 22, Idaho Code, and the rules promulgated thereto, IDAPA 02.06.16. “Crop Residue Disposal Rules.” As explained below, IDEQ has never prohibited open burning of crop residue or included regulation of it as part of a control strategy. As a result, this new provision is not a substantive change from existing provisions or the longstanding practice to burn crop residue within the State of Idaho.

The existing federally-approved open burning requirements for Idaho do not specifically address the open burning of crop residue. As explained in a letter from the State of Idaho Office of the Attorney General, the Smoke Management Act (SMA) was enacted in 1985. At this time the legislature found 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). In the 1999 Smoke Management and Crop Residue Disposal Act, the Idaho legislature transferred the SMA responsibilities from IDEQ to the Idaho Department of Agriculture. 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 rotations.” Idaho Code Chapter 48 Smoke Management and Crop Residue Disposal, 22-4801 (1999). The Act specifically provided 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). The Crop Residue Disposal Rules are located at IDAPA 02.06.16.

In 2003, to avoid potential confusion and make clear that the State's general prohibition of open burning is not intended to apply to crop residue, Idaho added section 58.01.01.617 to the IDEQ's general open burning regulations promulgated under the Environmental Protection and Health Act. The letter from the Idaho Attorney General's Office explained that by explicitly stating that burning of crop residue is an allowable form of open burning, the State intended to clarify, and not relax, the existing regulations in Idaho concerning crop residue burning. Therefore, the new section is approvable.

Finally, IDEQ deleted one section, section 58.01.01.604—Alternatives to Open Burning, from its rules. Under this provision, two years from the date an economical and reasonable alternative to a specific usage of open burning is approved by the Director of IDEQ, that usage of open burning is no longer allowed. This provision conflicts with the newer provision in the 2003 Smoke Management and Crop Residue Disposal Act which provides that open burning of crop residue is allowed only after the Director of the Idaho Department of Agriculture determines there are no economically viable alternatives to burning. Idaho Code section 22-4803. Under IDAPA section 58.01.01.604, the approval of alternatives is discretionary and to date has not been used. While EPA continues to encourage alternatives to open burning of crop residue, the removal of this provision has no substantive impact on existing federally-approved requirements. Therefore, we propose to approve the removal of section 58.01.01.604 from the Idaho SIP.

3. Summary of Proposed Action

EPA is proposing to approve all of the amendments to the Rules for the Control of Air Pollution in Idaho, section 58.01.01.600 through section 58.01.01.617, as submitted on May 22, 2003.

II. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed 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 proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed 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 proposes to approve 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 proposed 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 proposes to approve 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 proposed 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 proposed 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 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: May 27, 2004.

L. John Iani,

Regional Administrator, Region 10.