Approval and Promulgation of State Implementation Plans: Idaho, 44915-44921 [E8-16973]

Download as PDF Federal Register / Vol. 73, No. 149 / Friday, August 1, 2008 / Rules and Regulations standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Department of Homeland Security Management Directive 5100.1 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have concluded under the Instruction that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2– 1, paragraph (34)(g), of the Instruction, from further environmental documentation. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES. List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. I For the reasons discussed in the preamble, the Coast Guard amends part 165 of Title 33, Code of Federal Regulations, as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: I Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. From 8 p.m. until 11:59 p.m. (PDT) on August 2nd, 2008, a temporary section § 165.T13–054 is added to read as follows: rfrederick on PROD1PC67 with RULES I § 165.T13–054 Safety Zone: Lake Washington, WA. (a) Location. The following area is a safety zone: The waters within an area 1000 feet radius centered on the point 47°34′15″ N, 122°16′10″ W on Lake Washington, Washington. VerDate Aug<31>2005 15:09 Jul 31, 2008 Jkt 214001 (b) Regulations. In accordance with the general regulations in 33 CFR part 165, subpart C, no vessel may enter, transit, moor, or anchor within this safety zone, except for vessels authorized by the Captain of the Port or his designated representatives. (c) Enforcement Period. From 8 p.m. until 11:59 p.m. on August 2nd, 2008 unless sooner cancelled by the Captain of the Port. Dated: July 22, 2008. Stephen P. Metruck, Captain, U.S. Coast Guard, Captain of the Port Puget Sound. [FR Doc. E8–17618 Filed 7–31–08; 8:45 am] BILLING CODE 4910–15–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R10–OAR–2008–0336; FRL–8697–1] Approval and Promulgation of State Implementation Plans: Idaho Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: SUMMARY: The EPA is approving revisions to Idaho’s State Implementation Plan (SIP) relating to open burning and crop residue disposal requirements and visible emissions. The Director of the Idaho Department of Environmental Quality (IDEQ) submitted a draft SIP revision to the EPA on April 15, 2008. The EPA proposed to approve this draft SIP revision on April 29, 2008, and stated that, if adopted by the State substantially unchanged from its current form, it would satisfy the requirements of the Clean Air Act (hereinafter the Act or CAA). 73 FR 23155. The Director of the IDEQ submitted a final SIP revision to the EPA on May 28, 2008. Based on EPA’s review of this final SIP revision, EPA’s analysis and review of the 2008 draft SIP revision (73 FR 23155), and comments received by the EPA during the public comment period on EPA’s proposed approval of the draft SIP revision, the EPA is approving the final SIP revision submitted by the IDEQ on May 28, 2008, because it satisfies the requirements of the CAA. The Director of the IDEQ also submitted a SIP revision relating to open burning and crop residue disposal requirements on May 22, 2003, which the EPA approved on July 11, 2005 (70 FR 39658). In a ruling issued on January 30, 2007, and amended on May 29, 2007, that approval was remanded and PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 44915 vacated by the U.S. Court of Appeals for the 9th Circuit in Safe Air for Everyone v. USEPA, 475 F.3d 1096, amended 488 F.3d 1088 (9th Cir 2007) (SAFE decision). In the EPA’s April 29, 2008, proposal discussed above, the EPA reproposed to approve the portion of the May 22, 2003, SIP revision that would not be changed by the draft SIP revision, if adopted, submitted on April 15, 2008. We are also finalizing our approval of this portion of the 2003 SIP revision because it satisfies the requirements of the Act and does not contravene the Court’s SAFE decision. DATES: This action is effective on September 2, 2008. ADDRESSES: The EPA has established a docket for this action under Docket Identification No. EPA–R10–OAR– 2008–0336. All documents in the docket are listed on the https:// www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through https:// www.regulations.gov or in hard copy at EPA Region 10, Office of Air, Waste, and Toxics (AWT–107), 1200 Sixth Avenue, Seattle, Washington 98101. The EPA requests that you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office’s official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays. FOR FURTHER INFORMATION CONTACT: Donna Deneen, (206) 553–6706, or by e-mail at deneen.donna@epa.gov. SUPPLEMENTARY INFORMATION: Judicial Review. Under section 307(b)(1) of the CAA, judicial review of this final rule is available only by filing a petition for review in the U.S. Court of Appeals for the 9th Circuit by September 30, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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. Moreover, under CAA section 307(b)(2), the requirements established by this final action may not be challenged separately in any civil or criminal proceedings brought to enforce these requirements. E:\FR\FM\01AUR1.SGM 01AUR1 44916 Federal Register / Vol. 73, No. 149 / Friday, August 1, 2008 / Rules and Regulations Throughout this document whenever ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean the EPA. Information is organized as follows: rfrederick on PROD1PC67 with RULES Table of Contents I. Background II. Final 2008 SIP Revision Request III. Comments Received During the EPA Public Comment Period IV. Final Action V. Statutory and Executive Order Reviews I. Background The EPA is approving revisions to Idaho’s SIP relating to open burning and crop residue disposal requirements and to a provision addressing visible emissions. This final approval encompasses a revision relating to IDAPA 58.01.01.600–603, 606, 617–623, and 625, submitted recently by the IDEQ to the EPA on May 28, 2008, and referred to here as the ‘‘2008 SIP revision request.’’ This final approval also encompasses a portion of a revision request relating to IDAPA 58.01.01.604, 607–610, 612, 613, 615 and 616 submitted by the IDEQ to the EPA on May 22, 2003, and referred to here as the ‘‘2003 SIP revision request.’’ On May 22, 2003, Idaho submitted to the EPA a requested revision to its SIP relating to open burning and crop residue disposal requirements. This 2003 SIP revision request contained a number of changes including editorial changes, the addition of a provision regarding the immediate abatement of open burning in emergencies, removal of a provision regarding discretionary approval of alternatives to open burning, and the addition of a provision to specify that crop residue burning was an allowable form of open burning. On July 11, 2005, the EPA approved Idaho’s 2003 SIP revision request, explaining that we considered it to be a clarification of Idaho’s prior SIP rather than a substantive amendment. 70 FR 39658 and 70 FR 41963 (2005 SIP approval). A citizen’s group filed a petition for judicial review of our 2005 SIP approval in the U.S. Court of Appeals for the 9th Circuit, claiming that the approval relaxed the existing SIP and that we were incorrect in viewing the 2003 SIP revision request as a clarification of the prior SIP. (Safe Air for Everyone v. USEPA, 475 F.3d 1096, amended 488 F.3d 1088 (9th Cir 2007)). On January 30, 2007 (as amended on May 29, 2007), the Court granted the petition for review, vacated the 2005 SIP approval, and remanded the matter to the EPA. Subsequent to the remand, Idaho initiated a negotiated process to revise the challenged portions of the 2003 SIP revision request. This negotiated VerDate Aug<31>2005 15:09 Jul 31, 2008 Jkt 214001 process included discussions with representatives of the State, the IDEQ, the Idaho State Department of Agriculture (ISDA), Safe Air For Everyone (SAFE), numerous agricultural organizations, and farmers who burn crop residue. As a result of the negotiations, the State has revised its approach to the open burning of crop residue, enacted new legislation addressing the practice, and developed rules for submission to the EPA. On April 15, 2008, Idaho submitted a draft SIP revision containing the state’s revised draft rules (the 2008 draft SIP revision request) and a request for parallel processing. The EPA proposed approval of the 2008 draft SIP revision request on April 29, 2008 (73 FR 23155), and explained in its discussion of parallel processing that it may take final action to approve a SIP revision request if the final version of the adopted state submission remains substantially unchanged from the submission on which the proposed approval rulemaking was based (73 FR 23156). In the same notice, the EPA proposed approval of the portion of the 2003 SIP revision request that would not be changed by the 2008 SIP revision request and that was not part of the federally approved Idaho SIP due to the Court’s remand and vacatur of our 2005 SIP approval of the 2003 submission. 73 FR 23155. The EPA did not parallel process the portion of the 2003 SIP revision request that was not changed by the 2008 draft SIP revision request or the 2008 SIP revision request because this portion of the 2003 SIP revision request had already been through the state public process, was adopted in its final form under state law, and was officially submitted to the EPA prior to our proposed approval on April 29, 2008 (73 FR 23155). More discussion on the basis for our approval can be found at 73 FR 23155 (April 29, 2008). II. Final 2008 SIP Revision Request Idaho initiated a 30-day public comment period on the 2008 draft SIP revision request and, on May 2, 2008, held a public hearing on the request. Idaho subsequently prepared and adopted its final version of the 2008 SIP revision request, and on May 28, 2008, submitted the resulting 2008 SIP revision request to the EPA for final action and approval. In response to public comments during the state public comment period on its draft SIP revision request, the IDEQ made several clarifications which it included in the final 2008 SIP revision request submitted to EPA. For example, the IDEQ made several clarifications in response to comments PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 from the Nez Perce Tribe to further clarify that the 2008 SIP revision request did not apply to crop residue burning on Indian Reservations in Idaho and to better clarify where certain technical information in the SIP, such as air monitoring data, pertained to the Nez Perce burn permit program and reservation lands rather than to the IDEQ and state lands. In response to comments from SAFE, the IDEQ clarified certain criteria for making burning decisions under IDAPA 58.01.01.621.01 and how the IDEQ intends to implement those criteria. For example, the IDEQ confirmed that it will use the data from the continuous PM 2.5 monitors it operates in deciding whether to permit burning in accordance with IDAPA 58.01.01.621.01. The IDEQ also confirmed that it would account for background smoke from wildfires and other burning, including emissions from wildfires and burning in tribal areas and in upwind states, in determining whether the levels that would prohibit burning in IDAPA 58.01.01.621.01 are exceeded or predicted to be exceeded. With respect to the prohibition in IDAPA 58.01.01.621.01.f on authorizing burns if conditions are such that institutions with sensitive populations will be adversely impacted or when the plume is predicted to impact such institutions, the IDEQ clarified that the prohibition would apply to burning within three miles of institutions with sensitive populations when wind speeds exceed 12 miles and that, generally, the wind speed should be within 3 to 8 miles per hour. The EPA has reviewed the revisions and the submitted clarifications made by the IDEQ in the final 2008 SIP revision request and has determined that the 2008 SIP revision request remains substantially unchanged from the 2008 draft SIP revision request on which the EPA’s proposed approval was based. Based on our review and analysis of the 2008 draft SIP revision request and associated proposed EPA approval on April 29, 2008 (73 FR 23155), Idaho’s public comment period and hearing on the draft 2008 SIP revision request and IDEQ’s responses to comments submitted to EPA following the State’s administrative process, and the comments the EPA received during the public comment period on EPA’s proposed approval, we are taking final action to approve the 2008 SIP revision request. Moreover, based on these factors, we also conclude that approval of the SIP will not interfere with any applicable requirement concerning attainment and reasonable further E:\FR\FM\01AUR1.SGM 01AUR1 Federal Register / Vol. 73, No. 149 / Friday, August 1, 2008 / Rules and Regulations progress or any other applicable requirement of the Clean Air Act. rfrederick on PROD1PC67 with RULES III. Comments Received During the EPA Public Comment Period The following summarizes the issues raised in comments on the EPA’s proposed approval on April 29, 2008 (73 FR 23155), and provides EPA’s responses to those issues. Comment: A number of commenters objected to agricultural field burning and asked the EPA not to approve the 2008 SIP revision request, citing health and general air quality concerns. Some commenters suggested that, by allowing field burning, agribusinesses were getting special treatment and that economic concerns were outweighing health concerns. One commenter added that there are viable alternatives to burning and that the end consumer should bear the true costs of products they demand. Response: The EPA is aware of and continues to be concerned about the health and welfare impacts associated with crop residue burning in Idaho. In reviewing a SIP revision, EPA’s task is to determine whether the SIP revision complies with the requirements of the Clean Air Act. As discussed in the proposal, the burning of crop residue is allowed under the 2008 SIP revision request only after first obtaining a permit and burn approval from the IDEQ. IDAPA 58.01.01.618–621. The IDEQ may approve a burn only if the IDEQ determines that ambient air quality levels do not exceed seventy five percent of the level of any NAAQS on any day and are not projected to exceed such level over the next 24 hours. In addition, the IDEQ must determine that ambient air quality levels have not reached, and are not forecasted to reach and persist at, eighty percent of the one hour action criteria for particulate matter under IDAPA 58.01.01.556.1 58.01.01.621.01. In making these determinations, the IDEQ must consider the expected emissions from the proposed burn, the proximity of the proposed burn to other burns, the moisture content of the fuels, the acreage, crop type and other fuel characteristics, existing and expected meteorological conditions, the proximity of the proposed burn to institutions with sensitive populations, public roadways, and airports, and other relevant factors. IDAPA 58.01.01.621. Other restrictions on the burning of crop 1 The current one hour action criteria under IDAPA 58.01.01.556 are an average of 80 µg/m3 for PM2.5 and an average of 385 µg/m3 for PM10. VerDate Aug<31>2005 15:09 Jul 31, 2008 Jkt 214001 residue are contained in IDAPA 58.01.01.617 through 623. In its response to comments during the state public comment process, the IDEQ made clear that it will consider the smoke contribution from other burns, including wildfires and prescribed burns, as well as the contribution from wildfires and other burning on Indian Reservations and upwind states in determining whether the conditions to allow burning are met. The IDEQ also made other important clarifications regarding how the IDEQ intends to implement those criteria. As explained in our proposal, the EPA has determined that the 2008 draft SIP revision request meets the requirements of the Clean Air Act, including section 110(l) of the Act, which prohibits the Administrator from approving a SIP revision ‘‘if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of [the Act].’’ 73 FR 23155 (April 29, 2008). Because the Administrator is required to approve a SIP revision that complies with the provisions of the Clean Air Act and applicable Federal regulations (see 42 U.S.C. 7410(k) and 40 CFR 52.02(a)) and the 2008 SIP revision request complies with those requirements, the EPA is taking final action to approve these revisions to the Idaho SIP. Comment: Several commenters supported EPA’s approval of the state’s draft 2008 SIP revision request or agricultural burning. Some thought that restricting field burning was unfair when other types of burning are allowed. Some raised concerns about the economic costs of not burning and losing grass fields and family farms, and in some cases claimed that burning improves air quality because it retains green spaces and prevents those areas from being developed. One commenter that supported burning also acknowledged that there are areas and instances where burning should be tightly monitored and controlled. Some thought burning should be tolerated because it occurs only for a short period during the year. Response: The EPA acknowledges these commenters’ support of the proposed rule. To the extent that the commenters are suggesting the 2008 SIP revision request is too restrictive, however, the EPA adds that it does not have the authority to add or remove restrictions in this rulemaking process and that, in its review of a SIP submission, the EPA’s role is to approve or disapprove state choices, based on whether they meet the criteria of the Clean Air Act. In this case, the State of PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 44917 Idaho chose to adopt and submit provisions relating to the burning of crop residue. Accordingly, this final action merely approves the state program as meeting Federal requirements and does not impose additional requirements. Comment: One commenter said that the EPA is rushing this decision without adequate time for proper study of the issue and consideration of a fee/ compensation program. The commenter further stated that growers should be required to pay sufficient compensation to those damaged by pollution from burning. Response: The Clean Air Act does not specifically require states to impose a fee or compensation requirement for burn programs. As discussed above, the EPA does not have the authority to add provisions to or to remove restrictions in the state program in this rulemaking process. In our review of a SIP submission, the EPA’s role is to approve or disapprove state choices, based on whether they meet the criteria of the Clean Air Act. In any event, Idaho House Bill 557 requires a $2/acre fee be paid to the IDEQ prior to burning. See also IDAPA 58.01.01.620. Section 110(a)(2)(E) of the Clean Air Act does require that the state have adequate funding and staff to carry out the provisions of its SIP. The State of Idaho has stated that it has adequate funding and personnel to carry out the procedures identified in the 2008 SIP revision request and refers to funds appropriated by the Idaho Legislature, future receipts for crop residue burning, and an increase in staff to accomplish these tasks (Section 1.6.2 of the 2008 SIP revision request). The EPA relies on these statements made by the IDEQ to conclude that the 2008 SIP revision request meets the requirements of section 110(a)(2)(E) of the Clean Air Act. The EPA is unclear about what the commenter means by stating that the EPA is rushing this decision without ‘‘proper study.’’ The EPA provided a 30 day public comment opportunity on its proposed approval of the 2008 draft SIP revision request at 73 FR 23155 (April 29, 2008). Based on the analysis and review in that proposal, consideration of public comments received by the EPA during the public comment period, and the final 2008 SIP revision request, the EPA concludes that the IDEQ’s 2008 SIP revision request meets the requirements of the Clean Air Act. Comment: One commenter stated that the cumulative effects of smoke generated by fire of all sorts needed to be limited and that there is a need for more and better data about where the smoke from field burning actually goes. E:\FR\FM\01AUR1.SGM 01AUR1 rfrederick on PROD1PC67 with RULES 44918 Federal Register / Vol. 73, No. 149 / Friday, August 1, 2008 / Rules and Regulations Response: In the 2008 SIP revision request, the IDEQ specifically acknowledged that regional coordination of burn decisions and smoke management is important in order to avoid unacceptable cumulative smoke impacts within and across jurisdictions. The IDEQ further explained that it would account for background smoke from wildfires and other burning, including emissions from wildfires and burning in tribal areas and in upwind states, in determining whether the levels that would prohibit burning in IDAPA 58.01.01.621.01 are exceeded or predicted to be exceeded. As noted above, we reviewed and analyzed the draft 2008 draft SIP revision request in our April 29, 2008, proposal and concluded that the draft 2008 SIP revision request met the requirements of the Clean Air Act. Comment: The Nez Perce Tribe stated that it supports the EPA’s approval of the revisions to Idaho’s SIP relating to the open burning and crop residue disposal requirements and visible emissions. The Tribe emphasized the importance of the EPA’s acknowledgment in the proposal that the Idaho SIP does not apply within the exterior boundaries of the 1863 Nez Perce Reservation. The Tribe also clarified that it was not a part of the negotiations that led to the development of the 2008 SIP revision request, but that the Tribe’s air quality program attended meetings in a technical assistance capacity. The Nez Perce Tribe stated that it is willing to continue to provide technical assistance to the IDEQ and looks forward to working with the IDEQ and the EPA on coordinating smoke management and burn decisions in the Clearwater airshed. Response: The EPA acknowledges the Nez Perce Tribe’s support for the EPA’s approval of Idaho’s SIP revision request, as well as the Tribe’s continued technical support on air quality efforts. As stated in our proposal, the EPA’s approval of Idaho’s 2008 SIP revision request does not apply to Indian Country in Idaho, including all lands within the exterior boundaries of the Nez Perce Reservation as described in the 1863 Nez Perce Treaty. 73 FR 23162. The EPA also acknowledges the Nez Perce Tribe’s role in the development of Idaho’s 2008 SIP revision request. Comment: The Montana Department of Environmental Quality (MDEQ) stated that it supports Idaho’s final rules on crop residue burning and the IDEQ’s efforts to control the emissions from crop residue burning. In addition, the MDEQ commended the IDEQ’s efforts to establish coordination between crop residue burners and other burners to VerDate Aug<31>2005 15:09 Jul 31, 2008 Jkt 214001 protect the NAAQS, noting that it particularly supports coordination with the Idaho/Montana Smoke Management Group. The MDEQ also noted its support of Idaho’s intent to further study interstate transport issues. Response: The EPA acknowledges the MDEQ’s support of Idaho’s final rules relating to the open burning of crop residue and acknowledges the importance of coordination among states and tribes in protecting air quality. Comment: Safe Air For Everyone (SAFE) stated that, in responding to comments during State administrative proceedings on the 2008 draft SIP revision request, the IDEQ made important commitments regarding implementation of the burn permit program and that SAFE was relying on those commitments to make the SIP effective. SAFE continued that the IDEQ and SAFE had come to a mutual understanding and agreement that both the IDEQ’s Response to Comments (included in Appendix E of the 2008 SIP revision request) and Appendix J of the 2008 SIP revision request are part of the SIP. SAFE requested that the EPA confirm that the IDEQ’s submitted Response to Comments and Appendix J are part of the federally approved SIP and that the criteria for burn determinations included in the IDEQ’s Response to Comments and Appendix J are requirements of the federally approved and federally enforceable SIP. With that understanding, SAFE stated that it fully supports the EPA’s approval of the Idaho 2008 SIP revision request. If the EPA does not recognize the criteria for burn determinations in the IDEQ’s Response to Comments and Appendix J as part of the federally approved and enforceable SIP, SAFE asserted that the Idaho SIP revision would not be lawful because it would not comply with the Clean Air Act and EPA’s implementing regulations for the reasons discussed in SAFE’s comments to the IDEQ during the state public comment period. In that event, SAFE requested that the EPA consider the comments SAFE submitted to the IDEQ during Idaho’s public comment period as objections to the EPA’s approval as well. Response: In a letter dated June 11, 2008, the IDEQ stated that it had reviewed SAFE’s comment letter to EPA, and that the IDEQ had submitted the Response to Comments and Appendix J with the intent that they be considered part of the Idaho 2008 SIP revision request. The IDEQ further acknowledged that, upon the EPA’s approval of the Idaho 2008 SIP revision PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 request, the 2008 SIP revision request will be federally enforceable. The EPA agrees that both the IDEQ’s Response to Comments and Appendix J are part of the 2008 SIP revision request, and, upon the EPA’s approval, will be part of the federally approved and federally enforceable Idaho SIP. Our approval of the 2008 SIP revision request relies upon the statements made by the IDEQ throughout the SIP revision, including those statements made in the IDEQ Response to Comments and Appendix J, regarding how the IDEQ intends to implement its crop residue burning program. This includes statements made by the IDEQ in its Response to Comments and Appendix J relating to the criteria for making burning decisions and how the IDEQ intends to implement those criteria. As part of our approval action, the EPA is including Idaho’s complete submitted 2008 SIP revision request, including the IDEQ’s Response to Comments and Appendix J, in the identification of plan section of the Code of Federal Regulations at 40 CFR 52.670. As we discussed in the proposal, the past ten years of air quality data show no monitored evidence that the burning of crop residue has led to a violation of the NAAQS. To the extent that the burning of crop residue may contribute to exceedances of the revised NAAQS for ozone and PM2.5, the provisions at IDAPA 58.01.01.617 through 623 of Idaho’s new crop residue burning program adequately address those concerns by preventing crop residue burning on days when a NAAQS exceedance may occur. In addition, the IDEQ provided supporting material, including the analysis of air quality, meteorology, emissions inventory, and non-regulatory modeling to show that the crop residue burning activity in the State of Idaho is not causing nor significantly contributing to a violation of the NAAQS. Based on the IDEQ’s SIP submission, including the IDEQ’s Response to Comments and Appendix J, and for the reasons discussed in our proposed approval notice, we conclude that our approval of the Idaho 2008 SIP revision request will not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the CAA. IV. Final Action For the reasons provided above and in our proposed rule, we are approving Idaho’s 2008 SIP revision request, including the revisions to allow the open burning of crop residue, and the provision addressing visible emissions. E:\FR\FM\01AUR1.SGM 01AUR1 Federal Register / Vol. 73, No. 149 / Friday, August 1, 2008 / Rules and Regulations Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action: • Is not a ‘‘significant regulatory action’’ subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • 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); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and • Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and the EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. 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. The EPA will submit a report containing this action 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 2 ‘‘Indian country’’ is defined under 18 U.S.C. 1151 as: (1) All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation, (2) all dependent Indian communities within the borders of the United States, whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State, and (3) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. Under this definition, EPA treats as reservations trust lands validly set aside for the use of a Tribe even if the trust lands have not been formally designated as a reservation. In Idaho, More specifically, we are approving the 2008 SIP revision request relating to IDAPA 58.01.01.600–603, 606, 617–623, and 625 that includes both changes to the general open burning rules that were contained in the 2003 SIP revision request and changes to those rules that specifically relate to crop residue burning. We are also approving the portion of the 2003 SIP revision request relating to IDAPA 58.01.01.604, 607– 610, 612, 613, 615 and 616 that was not changed by the 2008 draft SIP revision request and that was not part of the federally approved Idaho SIP due to the Court’s remand and vacatur of our 2005 SIP approval of the 2003 submission. We are approving the State’s submitted 2008 revisions and the unchanged 2003 submission provisions because they meet the requirements of the Clean Air Act. As discussed in the proposal, because Idaho has not demonstrated authority to implement and enforce IDAPA Chapter 58 within ‘‘Indian country’’ as defined in 18 U.S.C. 1151,2 this SIP approval does not extend to ‘‘Indian country’’ in Idaho. 73 FR 23162. rfrederick on PROD1PC67 with RULES V. Statutory and Executive Order Reviews VerDate Aug<31>2005 15:09 Jul 31, 2008 Jkt 214001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 44919 Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: July 16, 2008. Elin D. Miller, Regional Administrator, Region 10. I 40 CFR part 52 is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: I Authority: 42 U.S.C. 7401 et seq. Subpart N—Idaho 2. Section 52.670 is amended to read as follows: I a. In the table in paragraph (c): I i. By removing ‘‘[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)]’’ from the table heading. I ii. By removing the section heading ‘‘58.01.01—Rules for the Control of Air Pollution in Idaho’’ and adding in its place ‘‘Idaho Administrative Procedures Act (IDAPA) 58.01.01—Rules for the Control of Air Pollution in Idaho’’. I iii. By revising entries 600 through 603. I iv. By revising entries 606 through 610. I v. By revising entries 612 and 613. I vi. By revising entries 615 though 617. I vii. By adding in numerical order entries 618 though 623. I viii. By revising entry 625. I ix. By adding a section heading ‘‘State Statutes’’ and an entry for State Statutes ‘‘Section 1 of House Bill 557, codified at Idaho Code section 39–114’’ at the end of the table. I b. In paragraph (e) by adding an entry to the end of the table. I § 52.670 * Identification of plan. * * (c) * * * * * Indian country includes, but is not limited to, all lands within the exterior boundaries of the Coeur d’Alene Reservation, the Duck Valley Reservation, the Reservation of the Kootenai Tribe, the Fort Hall Indian Reservation, and the Nez Perce Reservation as described in the 1863 Nez Perce Treaty. E:\FR\FM\01AUR1.SGM 01AUR1 44920 Federal Register / Vol. 73, No. 149 / Friday, August 1, 2008 / Rules and Regulations EPA-APPROVED IDAHO REGULATIONS State citation State effective date Title/subject EPA approval date Explanations Idaho Administrative Procedures Act (IDAPA) 58.01.01—Rules for the Control of Air Pollution in Idaho * * Rules for Control of Open Burning .... 601 ............................. Fire Permits, Hazardous Materials and Liability. 4/2/08 602 ............................. Nonpreemption of Other Jurisdictions 4/2/08 603 ............................. General Restrictions ........................... 606 ............................. Categories of Allowable Burning ........ 4/2/08, 3/21/03, 5/1/94 4/2/08 607 ............................. Recreational and Warming Fires ....... 3/21/03 608 ............................. Weed Control Fires ............................ 5/1/94 609 ............................. Training Fires ..................................... 3/21/03 610 ............................. Industrial Flares .................................. 3/21/03 * 612 ............................. * * Landfill Disposal Site Fires ................. * 3/21/03 613 ............................. Orchard Fires ..................................... 3/21/03, 5/1/94 * 615 ............................. * * Dangerous Material Fires ................... * 3/21/03 616 ............................. Infectious Waste Burning ................... 3/21/03 617 ............................. Crop Residue ..................................... 4/2/08 618 ............................. Permit By Rule ................................... 4/2/08 619 ............................. Registration for Permit By Rule ......... 4/2/08 620 ............................. Registration Fee ................................. 4/2/08 621 ............................. rfrederick on PROD1PC67 with RULES * 600 ............................. Burn Determination ............................ 4/2/08 622 ............................. General Provisions ............................. 4/2/08 623 ............................. Public Notification ............................... 4/2/08 VerDate Aug<31>2005 15:09 Jul 31, 2008 Jkt 214001 PO 00000 Frm 00024 * 4/2/08 Fmt 4700 Sfmt 4700 * 8/1/08 [Insert page number where the document begins]. 8/1/08 [Insert page number where the document begins]. 8/1/08 [Insert page number where the document begins]. 8/1/08 [Insert page number where the document begins]. 8/1/08 [Insert page number where the document begins]. 8/1/08 [Insert page number where the document begins]. 8/1/08 [Insert page number where the document begins]. 8/1/08 [Insert page number where the document begins]. 8/1/08 [Insert page number where the document begins]. * * Previous EPA Approval Date 05 removed in response to cuit remand. Previous EPA Approval Date 05 removed in response to cuit remand. Previous EPA Approval Date 05 removed in response to cuit remand. Previous EPA Approval Date 05 removed in response to cuit remand. Previous EPA Approval Date 05 removed in response to cuit remand. Previous EPA Approval Date 05 removed in response to cuit remand. Previous EPA Approval Date 05 removed in response to cuit remand. Previous EPA Approval Date 05 removed in response to cuit remand. Previous EPA Approval Date 05 removed in response to cuit remand. * 8/1/08 [Insert page number where the document begins]. 8/1/08 [Insert page number where the document begins]. * * Previous EPA Approval Date 05 removed in response to cuit remand. Previous EPA Approval Date 05 removed in response to cuit remand. * 8/1/08 [Insert page number where the document begins]. 8/1/08 [Insert page number where the document begins]. 8/1/08 [Insert page number where the document begins]. 8/1/08 [Insert page number where the document begins]. 8/1/08 [Insert page number where the document begins]. 8/1/08 [Insert page number where the document begins]. 8/1/08 [Insert page number where the document begins]. 8/1/08 [Insert page number where the document begins]. 8/1/08 [Insert page number where the document begins]. * * Previous EPA Approval Date 05 removed in response to cuit remand. Previous EPA Approval Date 05 removed in response to cuit remand. E:\FR\FM\01AUR1.SGM 01AUR1 of 7/11/ 9th Cirof 7/11/ 9th Cirof 7/11/ 9th Cirof 7/11/ 9th Cirof 7/11/ 9th Cirof 7/11/ 9th Cirof 7/11/ 9th Cirof 7/11/ 9th Cirof 7/11/ 9th Cir- of 7/11/ 9th Cirof 7/11/ 9th Cir- of 7/11/ 9th Cirof 7/11/ 9th Cir- 44921 Federal Register / Vol. 73, No. 149 / Friday, August 1, 2008 / Rules and Regulations EPA-APPROVED IDAHO REGULATIONS—Continued State effective date State citation Title/subject 625 ............................. Visible Emissions ............................... * * 4/2/08 * EPA approval date Explanations 8/1/08 [Insert page number where the document begins]. * * * * State Statutes Section 1 of House Bill 557, codified at Idaho Code section 39–114. Open Burning of Crop Residue .......... 03/07/08 8/1/08 [Insert page number where the document begins]. (e) * * * EPA-APPROVED IDAHO NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES. Name of SIP provision Applicable geographic or nonattainment area * * Open Burning of Crop Residue State Implementation Plan Revision. * State-wide ................................. * * * * * [FR Doc. E8–16973 Filed 7–31–08; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 55 Outer Continental Shelf Air Regulations Update To Include New York State Requirements Environmental Protection Agency (EPA). ACTION: Final rule. rfrederick on PROD1PC67 with RULES AGENCY: 5/28/08 * * 8/1/08 [Insert page number where the document begins]. requirements for the State of New York is to regulate emissions from OCS sources in accordance with the requirements onshore. The requirements discussed below are incorporated by reference into the Code of Federal Regulations and are listed in the appendix to the OCS air regulations. Effective Date: This rule is effective on September 2, 2008. This incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register as of September 2, 2008. Jkt 214001 EPA has established a docket for this action under Docket ID Number EPA–R02–OAR–2007–0553. All documents in the docket are listed on the https://www.regulations.gov Web site. Publicly available docket materials are available either electronically through https://www.regulations.gov or in hard copy at the U.S. Environmental Protection Agency, Region 2, 290 Broadway, New York, New York 10007. ADDRESSES: SUMMARY: EPA is finalizing the update of the Outer Continental Shelf (OCS) Air Regulations proposed in the Federal Register on March 14, 2008. Requirements applying to OCS sources located within 25 miles of States’ seaward boundaries must be promulgated into part 55 and updated periodically to remain consistent with the requirements of the corresponding onshore area (COA), as mandated by section 328(a)(1) of the Clean Air Act (CAA). The portion of the OCS air regulations that is being updated pertains to the requirements for OCS sources in the State of New York. The intended effect of approving the OCS 16:04 Jul 31, 2008 * EPA approval date DATES: [EPA–R02–OAR–2007–0553; FRL–8688–3] VerDate Aug<31>2005 State submittal date FOR FURTHER INFORMATION CONTACT: Steven Riva, Air Programs Branch, U.S. Environmental Protection Agency, Region 2, 290 Broadway, New York, New York 10007; telephone number: (212) 637–4074; e-mail address: riva.steven@epa.gov. SUPPLEMENTARY INFORMATION: PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 Comments * Table of Contents I. Background Information II. Public Comment and EPA Response III. EPA Action IV. Administrative Requirements A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Coordination With Indian Tribal Government G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Congressional Review Act K. Petitions for Judicial Review I. Background Information Throughout this document, the terms ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to the U.S. EPA. On September 4, 1992, EPA promulgated 40 CFR part 55,1 which established requirements to control air pollution from OCS sources in order to 1 The reader may refer to the Notice of Proposed Rulemaking, December 5, 1991 (56 FR 63774), and the preamble to the final rule promulgated September 4, 1992 (57 FR 40792) for further background and information on the OCS regulations. E:\FR\FM\01AUR1.SGM 01AUR1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 73, Number 149 (Friday, August 1, 2008)]
[Rules and Regulations]
[Pages 44915-44921]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-16973]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2008-0336; FRL-8697-1]

Approval and Promulgation of State Implementation Plans: Idaho

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is approving revisions to Idaho's State Implementation
Plan (SIP) relating to open burning and crop residue disposal
requirements and visible emissions. The Director of the Idaho
Department of Environmental Quality (IDEQ) submitted a draft SIP
revision to the EPA on April 15, 2008. The EPA proposed to approve this
draft SIP revision on April 29, 2008, and stated that, if adopted by
the State substantially unchanged from its current form, it would
satisfy the requirements of the Clean Air Act (hereinafter the Act or
CAA). 73 FR 23155. The Director of the IDEQ submitted a final SIP
revision to the EPA on May 28, 2008. Based on EPA's review of this
final SIP revision, EPA's analysis and review of the 2008 draft SIP
revision (73 FR 23155), and comments received by the EPA during the
public comment period on EPA's proposed approval of the draft SIP
revision, the EPA is approving the final SIP revision submitted by the
IDEQ on May 28, 2008, because it satisfies the requirements of the CAA.
The Director of the IDEQ also submitted a SIP revision relating to
open burning and crop residue disposal requirements on May 22, 2003,
which the EPA approved on July 11, 2005 (70 FR 39658). In a ruling
issued on January 30, 2007, and amended on May 29, 2007, that approval
was remanded and vacated by the U.S. Court of Appeals for the 9th
Circuit in Safe Air for Everyone v. USEPA, 475 F.3d 1096, amended 488
F.3d 1088 (9th Cir 2007) (SAFE decision). In the EPA's April 29, 2008,
proposal discussed above, the EPA re-proposed to approve the portion of
the May 22, 2003, SIP revision that would not be changed by the draft
SIP revision, if adopted, submitted on April 15, 2008. We are also
finalizing our approval of this portion of the 2003 SIP revision
because it satisfies the requirements of the Act and does not
contravene the Court's SAFE decision.

DATES: This action is effective on September 2, 2008.

ADDRESSES: The EPA has established a docket for this action under
Docket Identification No. EPA-R10-OAR-2008-0336. All documents in the
docket are listed on the https://www.regulations.gov Web site. Although
listed in the index, some information may not be publicly available,
i.e., Confidential Business Information or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through https://
www.regulations.gov or in hard copy at EPA Region 10, Office of Air,
Waste, and Toxics (AWT-107), 1200 Sixth Avenue, Seattle, Washington
98101. The EPA requests that you contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to schedule your inspection. The
Regional Office's official hours of business are Monday through Friday,
8:30 to 4:30, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Donna Deneen, (206) 553-6706, or by e-
mail at deneen.donna@epa.gov.

SUPPLEMENTARY INFORMATION:
Judicial Review. Under section 307(b)(1) of the CAA, judicial
review of this final rule is available only by filing a petition for
review in the U.S. Court of Appeals for the 9th Circuit by September
30, 2008. Filing a petition for reconsideration by the Administrator of
this final rule does not affect the finality of this action 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. Moreover, under CAA section
307(b)(2), the requirements established by this final action may not be
challenged separately in any civil or criminal proceedings brought to
enforce these requirements.

[[Page 44916]]

Throughout this document whenever ``we,'' ``us,'' or ``our'' is
used, we mean the EPA. Information is organized as follows:

Table of Contents

I. Background
II. Final 2008 SIP Revision Request
III. Comments Received During the EPA Public Comment Period
IV. Final Action
V. Statutory and Executive Order Reviews

I. Background

The EPA is approving revisions to Idaho's SIP relating to open
burning and crop residue disposal requirements and to a provision
addressing visible emissions. This final approval encompasses a
revision relating to IDAPA 58.01.01.600-603, 606, 617-623, and 625,
submitted recently by the IDEQ to the EPA on May 28, 2008, and referred
to here as the ``2008 SIP revision request.'' This final approval also
encompasses a portion of a revision request relating to IDAPA
58.01.01.604, 607-610, 612, 613, 615 and 616 submitted by the IDEQ to
the EPA on May 22, 2003, and referred to here as the ``2003 SIP
revision request.''
On May 22, 2003, Idaho submitted to the EPA a requested revision to
its SIP relating to open burning and crop residue disposal
requirements. This 2003 SIP revision request contained a number of
changes including editorial changes, the addition of a provision
regarding the immediate abatement of open burning in emergencies,
removal of a provision regarding discretionary approval of alternatives
to open burning, and the addition of a provision to specify that crop
residue burning was an allowable form of open burning.
On July 11, 2005, the EPA approved Idaho's 2003 SIP revision
request, explaining that we considered it to be a clarification of
Idaho's prior SIP rather than a substantive amendment. 70 FR 39658 and
70 FR 41963 (2005 SIP approval). A citizen's group filed a petition for
judicial review of our 2005 SIP approval in the U.S. Court of Appeals
for the 9th Circuit, claiming that the approval relaxed the existing
SIP and that we were incorrect in viewing the 2003 SIP revision request
as a clarification of the prior SIP. (Safe Air for Everyone v. USEPA,
475 F.3d 1096, amended 488 F.3d 1088 (9th Cir 2007)). On January 30,
2007 (as amended on May 29, 2007), the Court granted the petition for
review, vacated the 2005 SIP approval, and remanded the matter to the
EPA.
Subsequent to the remand, Idaho initiated a negotiated process to
revise the challenged portions of the 2003 SIP revision request. This
negotiated process included discussions with representatives of the
State, the IDEQ, the Idaho State Department of Agriculture (ISDA), Safe
Air For Everyone (SAFE), numerous agricultural organizations, and
farmers who burn crop residue. As a result of the negotiations, the
State has revised its approach to the open burning of crop residue,
enacted new legislation addressing the practice, and developed rules
for submission to the EPA.
On April 15, 2008, Idaho submitted a draft SIP revision containing
the state's revised draft rules (the 2008 draft SIP revision request)
and a request for parallel processing. The EPA proposed approval of the
2008 draft SIP revision request on April 29, 2008 (73 FR 23155), and
explained in its discussion of parallel processing that it may take
final action to approve a SIP revision request if the final version of
the adopted state submission remains substantially unchanged from the
submission on which the proposed approval rulemaking was based (73 FR
23156). In the same notice, the EPA proposed approval of the portion of
the 2003 SIP revision request that would not be changed by the 2008 SIP
revision request and that was not part of the federally approved Idaho
SIP due to the Court's remand and vacatur of our 2005 SIP approval of
the 2003 submission. 73 FR 23155. The EPA did not parallel process the
portion of the 2003 SIP revision request that was not changed by the
2008 draft SIP revision request or the 2008 SIP revision request
because this portion of the 2003 SIP revision request had already been
through the state public process, was adopted in its final form under
state law, and was officially submitted to the EPA prior to our
proposed approval on April 29, 2008 (73 FR 23155). More discussion on
the basis for our approval can be found at 73 FR 23155 (April 29,
2008).

II. Final 2008 SIP Revision Request

Idaho initiated a 30-day public comment period on the 2008 draft
SIP revision request and, on May 2, 2008, held a public hearing on the
request. Idaho subsequently prepared and adopted its final version of
the 2008 SIP revision request, and on May 28, 2008, submitted the
resulting 2008 SIP revision request to the EPA for final action and
approval.
In response to public comments during the state public comment
period on its draft SIP revision request, the IDEQ made several
clarifications which it included in the final 2008 SIP revision request
submitted to EPA. For example, the IDEQ made several clarifications in
response to comments from the Nez Perce Tribe to further clarify that
the 2008 SIP revision request did not apply to crop residue burning on
Indian Reservations in Idaho and to better clarify where certain
technical information in the SIP, such as air monitoring data,
pertained to the Nez Perce burn permit program and reservation lands
rather than to the IDEQ and state lands.
In response to comments from SAFE, the IDEQ clarified certain
criteria for making burning decisions under IDAPA 58.01.01.621.01 and
how the IDEQ intends to implement those criteria. For example, the IDEQ
confirmed that it will use the data from the continuous PM 2.5 monitors
it operates in deciding whether to permit burning in accordance with
IDAPA 58.01.01.621.01. The IDEQ also confirmed that it would account
for background smoke from wildfires and other burning, including
emissions from wildfires and burning in tribal areas and in upwind
states, in determining whether the levels that would prohibit burning
in IDAPA 58.01.01.621.01 are exceeded or predicted to be exceeded. With
respect to the prohibition in IDAPA 58.01.01.621.01.f on authorizing
burns if conditions are such that institutions with sensitive
populations will be adversely impacted or when the plume is predicted
to impact such institutions, the IDEQ clarified that the prohibition
would apply to burning within three miles of institutions with
sensitive populations when wind speeds exceed 12 miles and that,
generally, the wind speed should be within 3 to 8 miles per hour.
The EPA has reviewed the revisions and the submitted clarifications
made by the IDEQ in the final 2008 SIP revision request and has
determined that the 2008 SIP revision request remains substantially
unchanged from the 2008 draft SIP revision request on which the EPA's
proposed approval was based. Based on our review and analysis of the
2008 draft SIP revision request and associated proposed EPA approval on
April 29, 2008 (73 FR 23155), Idaho's public comment period and hearing
on the draft 2008 SIP revision request and IDEQ's responses to comments
submitted to EPA following the State's administrative process, and the
comments the EPA received during the public comment period on EPA's
proposed approval, we are taking final action to approve the 2008 SIP
revision request. Moreover, based on these factors, we also conclude
that approval of the SIP will not interfere with any applicable
requirement concerning attainment and reasonable further

[[Page 44917]]

progress or any other applicable requirement of the Clean Air Act.

III. Comments Received During the EPA Public Comment Period

The following summarizes the issues raised in comments on the EPA's
proposed approval on April 29, 2008 (73 FR 23155), and provides EPA's
responses to those issues.
Comment: A number of commenters objected to agricultural field
burning and asked the EPA not to approve the 2008 SIP revision request,
citing health and general air quality concerns. Some commenters
suggested that, by allowing field burning, agribusinesses were getting
special treatment and that economic concerns were outweighing health
concerns. One commenter added that there are viable alternatives to
burning and that the end consumer should bear the true costs of
products they demand.
Response: The EPA is aware of and continues to be concerned about
the health and welfare impacts associated with crop residue burning in
Idaho. In reviewing a SIP revision, EPA's task is to determine whether
the SIP revision complies with the requirements of the Clean Air Act.
As discussed in the proposal, the burning of crop residue is allowed
under the 2008 SIP revision request only after first obtaining a permit
and burn approval from the IDEQ. IDAPA 58.01.01.618-621. The IDEQ may
approve a burn only if the IDEQ determines that ambient air quality
levels do not exceed seventy five percent of the level of any NAAQS on
any day and are not projected to exceed such level over the next 24
hours. In addition, the IDEQ must determine that ambient air quality
levels have not reached, and are not forecasted to reach and persist
at, eighty percent of the one hour action criteria for particulate
matter under IDAPA 58.01.01.556.\1\ 58.01.01.621.01. In making these
determinations, the IDEQ must consider the expected emissions from the
proposed burn, the proximity of the proposed burn to other burns, the
moisture content of the fuels, the acreage, crop type and other fuel
characteristics, existing and expected meteorological conditions, the
proximity of the proposed burn to institutions with sensitive
populations, public roadways, and airports, and other relevant factors.
IDAPA 58.01.01.621. Other restrictions on the burning of crop residue
are contained in IDAPA 58.01.01.617 through 623.
---------------------------------------------------------------------------

\1\ The current one hour action criteria under IDAPA
58.01.01.556 are an average of 80 [mu]g/m\3\ for PM2.5
and an average of 385 [mu]g/m\3\ for PM10.
---------------------------------------------------------------------------

In its response to comments during the state public comment
process, the IDEQ made clear that it will consider the smoke
contribution from other burns, including wildfires and prescribed
burns, as well as the contribution from wildfires and other burning on
Indian Reservations and upwind states in determining whether the
conditions to allow burning are met. The IDEQ also made other important
clarifications regarding how the IDEQ intends to implement those
criteria. As explained in our proposal, the EPA has determined that the
2008 draft SIP revision request meets the requirements of the Clean Air
Act, including section 110(l) of the Act, which prohibits the
Administrator from approving a SIP revision ``if the revision would
interfere with any applicable requirement concerning attainment and
reasonable further progress, or any other applicable requirement of
[the Act].'' 73 FR 23155 (April 29, 2008). Because the Administrator is
required to approve a SIP revision that complies with the provisions of
the Clean Air Act and applicable Federal regulations (see 42 U.S.C.
7410(k) and 40 CFR 52.02(a)) and the 2008 SIP revision request complies
with those requirements, the EPA is taking final action to approve
these revisions to the Idaho SIP.
Comment: Several commenters supported EPA's approval of the state's
draft 2008 SIP revision request or agricultural burning. Some thought
that restricting field burning was unfair when other types of burning
are allowed. Some raised concerns about the economic costs of not
burning and losing grass fields and family farms, and in some cases
claimed that burning improves air quality because it retains green
spaces and prevents those areas from being developed. One commenter
that supported burning also acknowledged that there are areas and
instances where burning should be tightly monitored and controlled.
Some thought burning should be tolerated because it occurs only for a
short period during the year.
Response: The EPA acknowledges these commenters' support of the
proposed rule. To the extent that the commenters are suggesting the
2008 SIP revision request is too restrictive, however, the EPA adds
that it does not have the authority to add or remove restrictions in
this rulemaking process and that, in its review of a SIP submission,
the EPA's role is to approve or disapprove state choices, based on
whether they meet the criteria of the Clean Air Act. In this case, the
State of Idaho chose to adopt and submit provisions relating to the
burning of crop residue. Accordingly, this final action merely approves
the state program as meeting Federal requirements and does not impose
additional requirements.
Comment: One commenter said that the EPA is rushing this decision
without adequate time for proper study of the issue and consideration
of a fee/compensation program. The commenter further stated that
growers should be required to pay sufficient compensation to those
damaged by pollution from burning.
Response: The Clean Air Act does not specifically require states to
impose a fee or compensation requirement for burn programs. As
discussed above, the EPA does not have the authority to add provisions
to or to remove restrictions in the state program in this rulemaking
process. In our review of a SIP submission, the EPA's role is to
approve or disapprove state choices, based on whether they meet the
criteria of the Clean Air Act. In any event, Idaho House Bill 557
requires a $2/acre fee be paid to the IDEQ prior to burning. See also
IDAPA 58.01.01.620.
Section 110(a)(2)(E) of the Clean Air Act does require that the
state have adequate funding and staff to carry out the provisions of
its SIP. The State of Idaho has stated that it has adequate funding and
personnel to carry out the procedures identified in the 2008 SIP
revision request and refers to funds appropriated by the Idaho
Legislature, future receipts for crop residue burning, and an increase
in staff to accomplish these tasks (Section 1.6.2 of the 2008 SIP
revision request). The EPA relies on these statements made by the IDEQ
to conclude that the 2008 SIP revision request meets the requirements
of section 110(a)(2)(E) of the Clean Air Act.
The EPA is unclear about what the commenter means by stating that
the EPA is rushing this decision without ``proper study.'' The EPA
provided a 30 day public comment opportunity on its proposed approval
of the 2008 draft SIP revision request at 73 FR 23155 (April 29, 2008).
Based on the analysis and review in that proposal, consideration of
public comments received by the EPA during the public comment period,
and the final 2008 SIP revision request, the EPA concludes that the
IDEQ's 2008 SIP revision request meets the requirements of the Clean
Air Act.
Comment: One commenter stated that the cumulative effects of smoke
generated by fire of all sorts needed to be limited and that there is a
need for more and better data about where the smoke from field burning
actually goes.

[[Page 44918]]

Response: In the 2008 SIP revision request, the IDEQ specifically
acknowledged that regional coordination of burn decisions and smoke
management is important in order to avoid unacceptable cumulative smoke
impacts within and across jurisdictions. The IDEQ further explained
that it would account for background smoke from wildfires and other
burning, including emissions from wildfires and burning in tribal areas
and in upwind states, in determining whether the levels that would
prohibit burning in IDAPA 58.01.01.621.01 are exceeded or predicted to
be exceeded.
As noted above, we reviewed and analyzed the draft 2008 draft SIP
revision request in our April 29, 2008, proposal and concluded that the
draft 2008 SIP revision request met the requirements of the Clean Air
Act.
Comment: The Nez Perce Tribe stated that it supports the EPA's
approval of the revisions to Idaho's SIP relating to the open burning
and crop residue disposal requirements and visible emissions. The Tribe
emphasized the importance of the EPA's acknowledgment in the proposal
that the Idaho SIP does not apply within the exterior boundaries of the
1863 Nez Perce Reservation. The Tribe also clarified that it was not a
part of the negotiations that led to the development of the 2008 SIP
revision request, but that the Tribe's air quality program attended
meetings in a technical assistance capacity. The Nez Perce Tribe stated
that it is willing to continue to provide technical assistance to the
IDEQ and looks forward to working with the IDEQ and the EPA on
coordinating smoke management and burn decisions in the Clearwater
airshed.
Response: The EPA acknowledges the Nez Perce Tribe's support for
the EPA's approval of Idaho's SIP revision request, as well as the
Tribe's continued technical support on air quality efforts. As stated
in our proposal, the EPA's approval of Idaho's 2008 SIP revision
request does not apply to Indian Country in Idaho, including all lands
within the exterior boundaries of the Nez Perce Reservation as
described in the 1863 Nez Perce Treaty. 73 FR 23162. The EPA also
acknowledges the Nez Perce Tribe's role in the development of Idaho's
2008 SIP revision request.
Comment: The Montana Department of Environmental Quality (MDEQ)
stated that it supports Idaho's final rules on crop residue burning and
the IDEQ's efforts to control the emissions from crop residue burning.
In addition, the MDEQ commended the IDEQ's efforts to establish
coordination between crop residue burners and other burners to protect
the NAAQS, noting that it particularly supports coordination with the
Idaho/Montana Smoke Management Group. The MDEQ also noted its support
of Idaho's intent to further study interstate transport issues.
Response: The EPA acknowledges the MDEQ's support of Idaho's final
rules relating to the open burning of crop residue and acknowledges the
importance of coordination among states and tribes in protecting air
quality.
Comment: Safe Air For Everyone (SAFE) stated that, in responding to
comments during State administrative proceedings on the 2008 draft SIP
revision request, the IDEQ made important commitments regarding
implementation of the burn permit program and that SAFE was relying on
those commitments to make the SIP effective. SAFE continued that the
IDEQ and SAFE had come to a mutual understanding and agreement that
both the IDEQ's Response to Comments (included in Appendix E of the
2008 SIP revision request) and Appendix J of the 2008 SIP revision
request are part of the SIP. SAFE requested that the EPA confirm that
the IDEQ's submitted Response to Comments and Appendix J are part of
the federally approved SIP and that the criteria for burn
determinations included in the IDEQ's Response to Comments and Appendix
J are requirements of the federally approved and federally enforceable
SIP. With that understanding, SAFE stated that it fully supports the
EPA's approval of the Idaho 2008 SIP revision request. If the EPA does
not recognize the criteria for burn determinations in the IDEQ's
Response to Comments and Appendix J as part of the federally approved
and enforceable SIP, SAFE asserted that the Idaho SIP revision would
not be lawful because it would not comply with the Clean Air Act and
EPA's implementing regulations for the reasons discussed in SAFE's
comments to the IDEQ during the state public comment period. In that
event, SAFE requested that the EPA consider the comments SAFE submitted
to the IDEQ during Idaho's public comment period as objections to the
EPA's approval as well.
Response: In a letter dated June 11, 2008, the IDEQ stated that it
had reviewed SAFE's comment letter to EPA, and that the IDEQ had
submitted the Response to Comments and Appendix J with the intent that
they be considered part of the Idaho 2008 SIP revision request. The
IDEQ further acknowledged that, upon the EPA's approval of the Idaho
2008 SIP revision request, the 2008 SIP revision request will be
federally enforceable.
The EPA agrees that both the IDEQ's Response to Comments and
Appendix J are part of the 2008 SIP revision request, and, upon the
EPA's approval, will be part of the federally approved and federally
enforceable Idaho SIP. Our approval of the 2008 SIP revision request
relies upon the statements made by the IDEQ throughout the SIP
revision, including those statements made in the IDEQ Response to
Comments and Appendix J, regarding how the IDEQ intends to implement
its crop residue burning program. This includes statements made by the
IDEQ in its Response to Comments and Appendix J relating to the
criteria for making burning decisions and how the IDEQ intends to
implement those criteria. As part of our approval action, the EPA is
including Idaho's complete submitted 2008 SIP revision request,
including the IDEQ's Response to Comments and Appendix J, in the
identification of plan section of the Code of Federal Regulations at 40
CFR 52.670.
As we discussed in the proposal, the past ten years of air quality
data show no monitored evidence that the burning of crop residue has
led to a violation of the NAAQS. To the extent that the burning of crop
residue may contribute to exceedances of the revised NAAQS for ozone
and PM2.5, the provisions at IDAPA 58.01.01.617 through 623 of Idaho's
new crop residue burning program adequately address those concerns by
preventing crop residue burning on days when a NAAQS exceedance may
occur. In addition, the IDEQ provided supporting material, including
the analysis of air quality, meteorology, emissions inventory, and non-
regulatory modeling to show that the crop residue burning activity in
the State of Idaho is not causing nor significantly contributing to a
violation of the NAAQS. Based on the IDEQ's SIP submission, including
the IDEQ's Response to Comments and Appendix J, and for the reasons
discussed in our proposed approval notice, we conclude that our
approval of the Idaho 2008 SIP revision request will not interfere with
any applicable requirement concerning attainment and reasonable further
progress or any other applicable requirement of the CAA.

IV. Final Action

For the reasons provided above and in our proposed rule, we are
approving Idaho's 2008 SIP revision request, including the revisions to
allow the open burning of crop residue, and the provision addressing
visible emissions.

[[Page 44919]]

More specifically, we are approving the 2008 SIP revision request
relating to IDAPA 58.01.01.600-603, 606, 617-623, and 625 that includes
both changes to the general open burning rules that were contained in
the 2003 SIP revision request and changes to those rules that
specifically relate to crop residue burning. We are also approving the
portion of the 2003 SIP revision request relating to IDAPA
58.01.01.604, 607-610, 612, 613, 615 and 616 that was not changed by
the 2008 draft SIP revision request and that was not part of the
federally approved Idaho SIP due to the Court's remand and vacatur of
our 2005 SIP approval of the 2003 submission. We are approving the
State's submitted 2008 revisions and the unchanged 2003 submission
provisions because they meet the requirements of the Clean Air Act.
As discussed in the proposal, because Idaho has not demonstrated
authority to implement and enforce IDAPA Chapter 58 within ``Indian
country'' as defined in 18 U.S.C. 1151,\2\ this SIP approval does not
extend to ``Indian country'' in Idaho. 73 FR 23162.
---------------------------------------------------------------------------

\2\ ``Indian country'' is defined under 18 U.S.C. 1151 as: (1)
All land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and including rights-of-way running through
the reservation, (2) all dependent Indian communities within the
borders of the United States, whether within the original or
subsequently acquired territory thereof, and whether within or
without the limits of a State, and (3) all Indian allotments, the
Indian titles to which have not been extinguished, including rights-
of-way running through the same. Under this definition, EPA treats
as reservations trust lands validly set aside for the use of a Tribe
even if the trust lands have not been formally designated as a
reservation. In Idaho, Indian country includes, but is not limited
to, all lands within the exterior boundaries of the Coeur d'Alene
Reservation, the Duck Valley Reservation, the Reservation of the
Kootenai Tribe, the Fort Hall Indian Reservation, and the Nez Perce
Reservation as described in the 1863 Nez Perce Treaty.
---------------------------------------------------------------------------

V. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
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);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and the EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
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. The EPA will submit a report containing this action 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).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Reporting and recordkeeping requirements.

Dated: July 16, 2008.
Elin D. Miller,
Regional Administrator, Region 10.

0
40 CFR part 52 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. Section 52.670 is amended to read as follows:
0
a. In the table in paragraph (c):
0
i. By removing ``[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)]'' from the table heading.
0
ii. By removing the section heading ``58.01.01--Rules for the Control
of Air Pollution in Idaho'' and adding in its place ``Idaho
Administrative Procedures Act (IDAPA) 58.01.01--Rules for the Control
of Air Pollution in Idaho''.
0
iii. By revising entries 600 through 603.
0
iv. By revising entries 606 through 610.
0
v. By revising entries 612 and 613.
0
vi. By revising entries 615 though 617.
0
vii. By adding in numerical order entries 618 though 623.
0
viii. By revising entry 625.
0
ix. By adding a section heading ``State Statutes'' and an entry for
State Statutes ``Section 1 of House Bill 557, codified at Idaho Code
section 39-114'' at the end of the table.
0
b. In paragraph (e) by adding an entry to the end of the table.

Sec. 52.670 Identification of plan.

* * * * *
(c) * * *

[[Page 44920]]

EPA-Approved Idaho Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
State
State citation Title/subject effective EPA approval date Explanations
date
--------------------------------------------------------------------------------------------------------------------------------------------------------
Idaho Administrative Procedures Act (IDAPA) 58.01.01--Rules for the Control of Air Pollution in Idaho
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
600................................. Rules for Control of Open 4/2/08 8/1/08 [Insert page number where Previous EPA Approval Date of
Burning. the document begins]. 7/11/05 removed in response
to 9th Circuit remand.
601................................. Fire Permits, Hazardous 4/2/08 8/1/08 [Insert page number where Previous EPA Approval Date of
Materials and Liability. the document begins]. 7/11/05 removed in response
to 9th Circuit remand.
602................................. Nonpreemption of Other 4/2/08 8/1/08 [Insert page number where Previous EPA Approval Date of
Jurisdictions. the document begins]. 7/11/05 removed in response
to 9th Circuit remand.
603................................. General Restrictions.......... 4/2/08, 8/1/08 [Insert page number where Previous EPA Approval Date of
3/21/03, the document begins]. 7/11/05 removed in response
5/1/94 to 9th Circuit remand.
606................................. Categories of Allowable 4/2/08 8/1/08 [Insert page number where Previous EPA Approval Date of
Burning. the document begins]. 7/11/05 removed in response
to 9th Circuit remand.
607................................. Recreational and Warming Fires 3/21/03 8/1/08 [Insert page number where Previous EPA Approval Date of
the document begins]. 7/11/05 removed in response
to 9th Circuit remand.
608................................. Weed Control Fires............ 5/1/94 8/1/08 [Insert page number where Previous EPA Approval Date of
the document begins]. 7/11/05 removed in response
to 9th Circuit remand.
609................................. Training Fires................ 3/21/03 8/1/08 [Insert page number where Previous EPA Approval Date of
the document begins]. 7/11/05 removed in response
to 9th Circuit remand.
610................................. Industrial Flares............. 3/21/03 8/1/08 [Insert page number where Previous EPA Approval Date of
the document begins]. 7/11/05 removed in response
to 9th Circuit remand.

* * * * * * *
612................................. Landfill Disposal Site Fires.. 3/21/03 8/1/08 [Insert page number where Previous EPA Approval Date of
the document begins]. 7/11/05 removed in response
to 9th Circuit remand.
613................................. Orchard Fires................. 3/21/03, 8/1/08 [Insert page number where Previous EPA Approval Date of
5/1/94 the document begins]. 7/11/05 removed in response
to 9th Circuit remand.

* * * * * * *
615................................. Dangerous Material Fires...... 3/21/03 8/1/08 [Insert page number where Previous EPA Approval Date of
the document begins]. 7/11/05 removed in response
to 9th Circuit remand.
616................................. Infectious Waste Burning...... 3/21/03 8/1/08 [Insert page number where Previous EPA Approval Date of
the document begins]. 7/11/05 removed in response
to 9th Circuit remand.
617................................. Crop Residue.................. 4/2/08 8/1/08 [Insert page number where .............................
the document begins].
618................................. Permit By Rule................ 4/2/08 8/1/08 [Insert page number where .............................
the document begins].
619................................. Registration for Permit By 4/2/08 8/1/08 [Insert page number where .............................
Rule. the document begins].
620................................. Registration Fee.............. 4/2/08 8/1/08 [Insert page number where .............................
the document begins].
621................................. Burn Determination............ 4/2/08 8/1/08 [Insert page number where .............................
the document begins].
622................................. General Provisions............ 4/2/08 8/1/08 [Insert page number where .............................
the document begins].
623................................. Public Notification........... 4/2/08 8/1/08 [Insert page number where .............................
the document begins].

[[Page 44921]]

625................................. Visible Emissions............. 4/2/08 8/1/08 [Insert page number where .............................
the document begins].

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
State Statutes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 1 of House Bill 557, Open Burning of Crop Residue.. 03/07/08 8/1/08 [Insert page number where .............................
codified at Idaho Code section 39- the document begins].
114.
--------------------------------------------------------------------------------------------------------------------------------------------------------

(e) * * *

EPA-Approved Idaho Nonregulatory Provisions and Quasi-Regulatory Measures.
--------------------------------------------------------------------------------------------------------------------------------------------------------
State
Name of SIP provision Applicable geographic or submittal EPA approval date Comments
nonattainment area date
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
Open Burning of Crop Residue State-wide.............. 5/28/08 8/1/08 [Insert page number where the .....................................
State Implementation Plan document begins].
Revision.
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. E8-16973 Filed 7-31-08; 8:45 am]
BILLING CODE 6560-50-P

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