Federal Register / Vol. 73, No. 83 / Tuesday, April 29, 2008 / Proposed Rules 23155 

comments on these proposed 

regulations. 

Dates, Times, and Locations of Public 

Meetings: See SUPPLEMENTARY

INFORMATION section for meeting dates, 

times, and locations. 

FOR FURTHER INFORMATION CONTACT: 

Zollie Stevenson, Jr., U.S. Department of 

Education, 400 Maryland Ave., SW., 

room 3W230, Washington, DC 20202–

6132. Phone: at 202–260–1824. If you 

use a telecommunications device for the 

deaf (TDD), you may call the Federal 

Relay Service (FRS) at 1–800–877–8339. 

SUPPLEMENTARY INFORMATION: On April 

23, 2008, the Secretary published an 

NPRM in the Federal Register (73 FR 

22020) to amend certain of the Title I 

regulations. The purpose of these 

proposed regulations is to build on the 

advancements of State accountability 

and assessment systems over the six 

years since NCLB was signed into law, 

while incorporating key feedback from 

the field into an even clearer vision of 

what it takes to educate each and every 

one of our Nation’s school children. The 

proposed regulations would clarify and 

strengthen current Title I regulations in 

the areas of assessment, accountability, 

supplemental educational services 

(SES), and public school choice. Issuing 

regulations that strengthen Title I 

implementation in these areas will help 

bring about higher-quality assessments 

and stronger accountability for results, 

as well as provide parents with the 

information they need to make informed 

decisions about public school choice 

and SES. A copy of the NPRM is 

available at http://www.ed.gov/policy/ 

elsec/reg/proposal/index.html. 

The Department is accepting public 

comments on the NPRM through June 

23, 2008. Comments must be submitted 

in writing to the Department in 

accordance with the instructions in the 

NPRM. We look forward to receiving 

your comments on these proposed 

regulations to ensure that they 

accomplish our intended objectives. 

Public Meetings 

The Department will also be holding 

four public meetings to receive 

comments on the NPRM. The meetings 

will occur on the following dates at the 

times and locations indicated: 

Wednesday, May 14, 2008 

Hilton Boston Back Bay Hotel, 40 

Dalton Street, Boston, MA 02115, Time: 

9 a.m.–12 p.m. & 2 p.m.–5 p.m., Meeting 

Room: Fenway Room. 

Thursday, May 15, 2008 

Georgia Perimeter College, Dunwoody 

Campus, 2101 Womack Road, 

Dunwoody, GA 30338, Time: 9 a.m.–12 

p.m. & 2 p.m.–5 p.m., Meeting Room: 

Auditorium, C1100, North Campus. 

Monday, May 19, 2008 

Sheraton Kansas City Sports Complex 

Hotel, 9103 East 39th Street, Kansas 

City, MO 64133, Time: 9 a.m.–12 p.m. 

& 2 p.m.–5 p.m., Meeting Room: Royal 

Ballroom. 

Thursday, May 22, 2008 

W Hotel, 1112 4th Avenue, Seattle, 

WA 98101, Time: 9 a.m.–12 p.m. & 2 

p.m.–5 p.m., Meeting Room: Great Room 

1. 

Individuals who wish to present 

comments during a public meeting 

should register at Special.Events@ed.gov 

at least one week before the public 

meeting. Any meeting time that remains 

after the Web site registrations are 

processed will be made available on the 

day of the meeting. Individuals who 

have not registered on the Web site and 

who wish to present comments should 

do so at the on-site registration desk on 

the day of the meeting. We will process 

Web-site and on-site registrations on a 

first-come, first-served basis. 

Each individual will be allowed three 

minutes to present comments. 

Individuals are requested to submit 

three written copies and an electronic 

file (CD or diskette) of their comments 

at the meeting, which should be labeled 

with their name and contact 

information. Transcripts of these 

meetings, along with any written 

comments received, will be made a part 

of the official rulemaking record. 

The meeting site is accessible to 

individuals with disabilities. 

Individuals who need accommodations 

in order to attend the meeting (e.g., 

interpreting services, assistive listening 

devices, materials in alternative formats) 

should notify Frances Hopkins at 

Special.Events@ed.gov or call 202–205–

6268 no later than 14 days prior to the 

meeting the individual will attend. We 

will attempt to meet requests for 

accommodations after this date, but 

cannot guarantee their availability. 

Electronic Access to This Document 

You may view this document, as well 

as all other Department of Education 

documents published in the Federal 

Register, in text or Adobe Portable 

Document Format (PDF) on the Internet 

at the following site: http://www.ed.gov/ 

news/fedregister. 

To use PDF you must have Adobe 

Acrobat Reader, which is available free 

at this site. If you have questions about 

using PDF, call the U.S. Government 

Printing Office (GPO), toll free, at 1–

888–293–6498; or in the Washington, 

DC, area at (202) 512–1530. 

Note: The official version of this document 

is the document published in the Federal 

Register. Free Internet access to the official 

edition of the Federal Register and the Code 

of Federal Regulations is available on GPO 

Access at http://www.gpoaccess.gov/nara/ 

index.html 

Dated: April 24, 2008. 

Kerri L. Briggs, 

Assistant Secretary for Elementary and 

Secondary Education. 

[FR Doc. E8–9351 Filed 4–28–08; 8:45 am] 

BILLING CODE 4000–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R10–OAR–2008–0336; FRL–8559–3] 

Approval and Promulgation of State 

Implementation Plans: Idaho 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing to 

approve 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 is 

proposing to approve this draft SIP 

revision at Idaho’s request because, if 

adopted by the State in its current form, 

it would satisfy the requirements of the 

Clean Air Act (hereinafter the Act or 

CAA). The State has scheduled a public 

hearing on this draft revision for May 2, 

2008. 

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). A State public hearing for 

this revision was held on September 11, 

2002. 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). The EPA is re-proposing 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 proposing to approve this 

portion of the SIP revision because it 

satisfies the requirements of the Act and 

does not contravene the Court’s SAFE 

decision. 

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23156 Federal Register / Vol. 73, No. 83 / Tuesday, April 29, 2008 / Proposed Rules 

DATES: Written comments must be 

received on or before May 29, 2008. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R10- 

OAR–2008–0336, by one of the 

following methods: 

A. http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

B. Mail: Donna Deneen, EPA, Office of 

Air, Waste, and Toxics (AWT–107), 

1200 Sixth Avenue, Suite 900, Seattle, 

Washington 98101 

C. Hand Delivery: EPA, Region 10 

Mailroom, 9th Floor, 1200 Sixth 

Avenue, Seattle, Washington 98101. 

Attention: Donna Deneen, Office of Air 

Waste, and Toxics (AWT–107). Such 

deliveries are only accepted during 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R10–OAR–2008–

0336. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at 

http://www.regulations.gov, 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 http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means the 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 the EPA without 

going through http:// 

www.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, the 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 the EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, the 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 

electronic docket are listed in the 

http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

i.e., CBI 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 in http:// 

www.regulations.gov or in hard copy 

during normal business hours at the 

Office of Air, Waste and Toxics, EPA 

Region 10, 1200 Sixth Avenue, Seattle, 

Washington 98101. 

FOR FURTHER INFORMATION CONTACT: 

Donna Deneen, (206) 553–6706, or by email at R10–Public_Comments@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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. Proposed Action 

A. General Open Burning Rules at IDAPA 

58.01.01.600 through 616 

B. Crop Residue Disposal Rules at IDAPA 

58.01.01.617 through 623, Provision 

Addressing Visible Emissions at IDAPA 

58.01.01.625, and New Legislation 

1. Background 

2. Section 110(l) Requirements 

3. Section 193 Requirements 

III. Scope of Proposed Action 

IV. Statutory and Executive Order Reviews 

I. Background 

The EPA is proposing to approve 

revisions to Idaho’s SIP relating to open 

burning and crop residue disposal 

requirements and to a provision 

addressing visible emissions. This 

proposed approval encompasses a draft 

revision (IDAPA 58.01.01.600–603, 606, 

617–623, and 625), submitted by the 

IDEQ on April 15, 2008 (the 2008 draft 

SIP revision request) and a portion of a 

revision request (IDAPA 58.01.01.604, 

607–610, 612, 613, 615 and 616) 

submitted by the IDEQ on May 22, 2003. 

(We will refer to this portion of the May 

22, 2003, SIP revision request as the 

‘‘2003 SIP revision request.’’) 

Idaho has requested that the EPA 

‘‘parallel process’’ the 2008 draft SIP 

revision request. Parallel processing 

means that the EPA proposes 

rulemaking action on a state’s rule 

revision before the state regulation is 

adopted in final form under state law. 

See 40 CFR part 51, appendix V, section 

2.3. Parallel processing generally saves 

total processing time and allows the SIP 

revision, if approved, to become 

effective sooner than under the 

traditional federal review process. 

Under the traditional process the EPA 

does not first propose to approve or 

disapprove a SIP revision request until 

it has been finally adopted under state 

law. Under parallel processing, the EPA 

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. If there 

are significant changes in the State’s 

final submission, the EPA would not 

take final action approving this 

proposal. 

The EPA is not parallel processing the 

portion of the 2003 SIP revision request 

that would not be changed by the 2008 

draft SIP revision request, if adopted. 

This portion of the 2003 SIP revision 

request has already been through the 

state public process and adopted in its 

final form under state law, and remains 

officially submitted to the EPA. We 

expect that Idaho will make no further 

changes to these already adopted and 

submitted provisions. Therefore it is not 

necessary to parallel process the request 

to approve these revisions. Rather, in 

today’s notice the EPA proposes to 

approve these provisions as currently 

adopted under State law, based on our 

expectation that they will not be 

changed in the State’s adoption of its 

2008 SIP revision request. 

History of the 2003 and 2008 SIP 

Revision Requests 

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 

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Federal Register / Vol. 73, No. 83 / Tuesday, April 29, 2008 / Proposed Rules 23157 

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. As described in more 

detail below, 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 has 

developed draft rules for submission to 

the EPA. 

II. Proposed Action 

For the reasons discussed below, this 

action proposes to approve the State’s 

draft revised open burning rules, 

including the revisions to allow the 

open burning of crop residue, and the 

provision addressing visible emissions. 

More specifically, we are proposing to 

approve the 2008 draft SIP revision 

request (IDAPA 58.01.01.600–603, 606, 

617–623, and 625) that includes both 

draft changes to the general open 

burning rules that were contained in the 

2003 SIP revision request and draft 

changes to those rules that specifically 

relate to crop residue burning. We are 

also proposing to approve the portion of 

the 2003 SIP revision request (IDAPA 

58.01.01.604, 607–610, 612, 613, 615 

and 616) that would not be changed by 

the 2008 draft SIP revision request and 

that is currently 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 

proposing to approve the draft 2008 

revisions and the unchanged 2003 

submission provisions because they 

meet the requirements of the Clean Air 

Act. 

For organizational ease, section A 

below provides a discussion of the 

changes submitted to IDAPA 

58.01.01.600 through 616, which we 

will refer to as Idaho’s general open 

burning rules. Section B below 

discusses IDAPA 58.01.01.617 through 

623, which we will refer to as Idaho’s 

crop residue burning rules. We will also 

discuss in Section B the provision 

addressing visible emissions at IDAPA 

58.01.01.625.05 and a new statutory 

provision, Idaho House Bill 557, which 

authorizes the open burning of crop 

residue and the IDEQ’s adoption of 

implementing rules. 

The EPA has also prepared a 

Technical Support Document (TSD) 

with more detailed information about 

the SIP revisions Idaho has asked us to 

approve. The TSD is available for 

review as part of the docket for this 

action. 

A. General Open Burning Rules at 

IDAPA 58.01.01.600 through 616 

Due to the Court’s remand and 

vacatur of our 2005 SIP approval of the 

2003 SIP revision request, our most 

recent approval of the general open 

burning rules in Idaho’s SIP that 

remains in effect was published on 

January 16, 2003 (68 FR 2217) (2003 SIP 

approval). That 2003 SIP approval was 

not challenged by any party. Since then, 

the IDEQ has made a number of changes 

to its general open burning rules. IDAPA 

58.01.01.600–616. These changes were 

submitted in both the 2003 SIP revision 

request and the 2008 draft SIP revision 

request, and include the following: 

Minor modifications of existing 

language, the addition of a provision 

related to emergency authority, and the 

deletion of a never-used provision 

relating to alternatives to open burning. 

Minor Modifications to Existing 

Language 

The IDEQ made minor modifications 

to the language in IDAPA 58.01.01.600–

602, 606–610, 612–613, and 615–616. 

These modifications to existing 

language are either editorial revisions, 

clarifications of existing provisions, or 

process revisions. The TSD identifies 

each provision, indicates whether it was 

submitted in the 2003 or 2008 SIP 

revision requests, and describes how the 

modification compares to the existing 

federally approved SIP as reflected in 

the 2003 SIP approval. By the nature of 

these types of modifications, they have 

no substantive impact on rule 

requirements and, therefore, meet the 

requirements of the Act and are 

approvable. 

Emergency Authority Provision 

The IDEQ also revised IDAPA 

58.01.01.603.02 to provide that ‘‘In 

accordance with Title 39, Chapter 1, 

Idaho Code, the Department [IDEQ] has 

the authority to require immediate 

abatement of open burning in cases of 

an emergency requiring immediate 

action to protect human health or 

safety.’’ This provision, submitted as 

part of the 2003 SIP revision request, 

reiterates the existing authority 

provided in Title 39, Chapter 1, Idaho 

Code (and approved in the 

unchallenged 2003 SIP approval) to 

require immediate abatement of air 

pollution in emergency cases and 

clarifies that the emergency authority 

may be used for open burning. Idaho 

Code section 39–112. Because the 

addition of this provision clarifies and 

does not change the IDEQ’s emergency 

authority in the existing SIP to protect 

human health or safety, it is approvable. 

Alternatives to Open Burning. 

In the 2003 SIP revision request, the 

IDEQ also deleted IDAPA 

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 the IDEQ, 

that usage of open burning is no longer 

allowed. Under IDAPA section 

58.01.01.604, the approval of 

alternatives is discretionary and to date 

has not been used. While the EPA 

continues to encourage alternatives to 

open burning, the removal of this 

provision has no substantive impact on 

existing federally-approved 

requirements that would have been 

affected had the IDEQ Director ever 

approved such an alternative. Therefore 

we propose to approve the removal of 

section 58.01.01.604 from the Idaho SIP. 

In light of the nature of the revisions 

discussed above to IDAPA 

58.01.01.600–602, 606–610, 612–613, 

and 615–616 (editorial, process 

revisions, clarification of the emergency 

provision, and the deletion of a 

discretionary and never-used before 

provision), we are proposing to approve 

these revisions because they meet all of 

the requirements of the Clean Air Act. 

See the Technical Support Document 

for specific comparisons of these 

revisions to the existing federally 

approved SIP as reflected by the 2003 

SIP approval. 

B. Crop Residue Disposal Rules at 

IDAPA 58.01.01.617 through 623, 

Provision Addressing Visible Emissions 

at IDAPA 58.01.01.625 and New 

Legislation 

The crop residue disposal rules at 

IDAPA 58.01.01.617 through 623 and 

the provision addressing visible 

emissions at IDAPA 58.01.01.625 and 

accompanying materials supporting 

these rules are contained in the 2008 

draft SIP revision request. According to 

the 2008 draft SIP revision request, 

these rules were submitted as a result of 

the Ninth Circuit Court of Appeals 

decision in Safe Air for Everyone v. 

USEPA, 475 F.3d 1096, amended 488 

F.3d 1088 (9th Cir 2007) and of the 

subsequent efforts of stakeholders. The 

stakeholders negotiated an agreement 

after the Court’s decision to ensure 

protection of the public health and the 

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23158 Federal Register / Vol. 73, No. 83 / Tuesday, April 29, 2008 / Proposed Rules 

1Section 1153.08 of these rules specifically 

identifies agricultural burning as a category of 

allowable burning. 

2Section 52–103 Idaho Code provides ‘‘Nothing 

which is done or maintained under the express 

authority of a statute can be deemed a nuisance.’’

environment and that allows growers to 

burn crop residue when certain 

conditions are met. 

Below is a history of the 2008 draft 

SIP revision request, the stakeholder 

agreement points, our analysis of the 

resulting statute and administrative 

rules, and the basis for our proposed 

approval of these provisions in the 2008 

SIP revision request. 

1. Background 

The open burning of agricultural 

fields is a historic agricultural practice 

in Idaho. As early as 1970, Idaho 

adopted open burning rules that 

specifically included agricultural 

burning as a category of allowable 

burning. The EPA approved these 

provisions into the Idaho SIP on May 

31, 1972, and re-approved them on July 

28, 1982. 37 FR 10861 and 47 FR 

32530.1 A series of events, including the 

Idaho Legislature’s enactment of the 

1985 Smoke Management Act (House 

Bill 246, 41st Legislature, 1985), which 

specifically acknowledged crop residue 

burning and prohibited the IDEQ from 

regulating it, led to the subsequent 

submission of a SIP revision in the early 

1990s that no longer included crop 

residue burning as an allowable form of 

open burning. The EPA approved this 

revision to Idaho’s SIP on July 23, 1993. 

58 FR 39445. (As further addressed 

below, it was this EPA SIP approval in 

1993 that first rendered, albeit 

unintentionally, open burning of 

agricultural fields a prohibited act under 

the approved Idaho SIP, as interpreted 

by the 9th Circuit.) 

In 1999, the Idaho Legislature 

repealed the 1985 Smoke Management 

Act and in its place enacted the Smoke 

Management and Crop Residue Disposal 

Act (House Bill 342, 55th legislature, 

1999). This Act authorized ISDA to 

promulgate rules regarding crop residue 

disposal and removed the prohibition 

against the IDEQ from doing so. The 

IDEQ subsequently amended its rules to 

recognize the open burning of crop 

residue. This rule, IDAPA 58.01.01.617, 

was submitted in 2003 to the EPA as a 

SIP clarification and the EPA approved 

that rule in 2005. 70 FR 39658 (July 11, 

2005). SAFE filed a petition for judicial 

review, asserting that the SIP previously 

prohibited crop residue burning and 

now allowed it as a result of the EPA’s 

2005 approval of the 2003 SIP revision 

request. SAFE claimed that the EPA 

incorrectly viewed the previously 

approved SIP as already allowing open 

burning of agricultural fields. The Ninth 

Circuit Court of Appeals agreed with 

SAFE’s arguments, granted the petition 

for review, vacated the EPA’s 2005 SIP 

approval of the 2003 SIP revision 

request, and remanded it back to the 

EPA to consider the amendment a 

change to the pre-existing SIP rather 

than a clarification. The Ninth Circuit 

determined that the pre-existing SIP did 

not allow the open burning of crop 

residue and that further analysis under 

Clean Air Act sections 110(l) and 193 by 

the EPA was required. The decision 

made clear that under the existing 

federally approved SIP, open burning of 

crop residue on state lands in Idaho was 

prohibited. 

Subsequent to the Ninth Circuit’s 

decision, the parties to the lawsuit, and 

other key stakeholders, began 

discussions regarding the open burning 

of crop residue (crop residue burning) 

program and the SIP revision submittal 

components required to satisfy the Act. 

Central parties to these discussions 

included representatives from SAFE, 

IDEQ, ISDA, and numerous agricultural 

organizations and farmers who burn 

crop residue. EPA did not participate 

directly in the stakeholder discussions, 

but was kept informed of their progress. 

After several months of discussion, an 

independent mediator was hired by the 

State to assist in the negotiation of an 

agreement among the non-federal 

stakeholders. 

In December 2007, agreement points 

among the non-federal stakeholders 

were reached. The State summarizes the 

agreement in the 2008 draft SIP revision 

request as an agreement (1) that DEQ 

would administer the crop residue 

burning program (in the past the ISDA 

administered the program), (2) to model 

the program after the Nez Perce Tribe 

crop residue burning program, 

specifically to protect air quality to 75% 

of the NAAQS, (3) to incorporate the 

transparency aspects of the Washington 

State Department of Ecology program, 

(4) to examine the adequacy of the 

existing monitoring network, (5) to 

build in cooperation with other smoke 

management regulators, (6) to conduct 

monitoring and exposure studies if grant 

money is available, and (7) to conduct 

an air quality analysis prior to 

authorizing the annual open burning of 

20,000 acres or more of bluegrass. 

Legislation 

Subsequent to the December 2007 

agreement among the non-federal 

stakeholders, House Bill 557 was 

drafted to reflect the agreement points. 

The bill was passed by the Idaho 

Legislature, signed by the Governor and 

became effective on March 7, 2008. 

House Bill 557 adds a new section, 

section 38–114, to the Environmental 

Protection and Health Act. This section 

establishes a crop residue program 

within the IDEQ. It specifically provides 

that the open burning of crop residue to 

develop physiological conditions 

conducive to increase crop yields, or 

control diseases, insects, pests or weed 

infestations, shall be an allowable form 

of open burning, such that it is 

expressly authorized as referenced in 

Section 52–108 Idaho Code,2 so long as 

the open burning is conducted in 

accordance with the provisions of this 

section and the rules promulgated 

pursuant to this chapter. It also amends 

Idaho’s Public Records Act to allow for 

the disclosure of information regarding 

property locations of fields to be 

burned, persons responsible for the 

burn, and acreage and crop type for crop 

residue to be burned. 

Importantly, the Bill also requires any 

person desiring to burn crop residue to 

obtain prior approval from the IDEQ, 

and, further, provides that the IDEQ is 

prohibited from approving a burn if it 

determines that ambient air quality 

levels: ‘‘(a) [a]re exceeding, or are 

projected to exceed, seventy-five 

percent (75%) of the level of any 

national ambient air quality standard 

(NAAQS) on any day, and these levels 

are projected to continue or recur over 

at least the next twenty-four (24) hours; 

or (b) [h]ave reached, or are forecasted 

to reach and persist at, eighty percent 

(80%) of the one (1) hour action criteria 

for particulate matter pursuant to 

section 556 of IDAPA 58.01.01, rules for 

the control of air pollution in Idaho.’’

Idaho Code Section 39–114(3)(a). 

House Bill 557 also explains that 

IDEQ will make available to the public, 

prior to the burn, information regarding 

the date of the burn, location, acreage 

and crop type. Furthermore, the Bill 

requires the IDEQ to conduct additional 

air quality analysis if the agricultural 

community desires to burn more than 

20,000 acres of bluegrass within the 

state. Additionally, the Bill requires a 

$2/acre fee be paid to IDEQ prior to 

burning. 

Negotiated Rulemaking 

After House Bill 557 was passed, the 

Idaho Department of Environmental 

Quality Board adopted rules 

implementing House Bill 557 and 

reflecting the December 2007 agreement 

relating to crop residue disposal. At the 

same time, a provision addressing 

visible emissions was added at IDAPA 

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3 Idaho’s negotiated rulemaking process is an 

informal process open to the public and intended 

to improve the substances of proposed rules by 

drawing upon shared information, expertise and 

technical abilities possessed by the affected 

persons; to arrive at a consensus on the content of 

the rule; to expedite formal rule-making; and to 

lessen the likelihood that affected persons will 

resist enforcement or challenge the rules in court. 

See Section 67–5220, Idaho Code and IDAPA 

04.11.01.810 through 819. 

4The current on hour action criteria under 

IDAPA 58.01.01.556 is an average of 80 u ́ g/m3 for 

PM2.5 and an average of 385 u ́ g/m3 for PM10. 

58.01.01.625.05 providing that the 

visible emissions requirements in 

IDAPA 58.01.01.625 shall not apply to 

the open burning of crop residue. These 

crop residue disposal rules and the new 

provision addressing visible emissions 

were developed through Idaho’s 

negotiated rulemaking process.3 This 

process was open to the public and 

included representatives from the 

negotiation team. The rules and visible 

emissions provision became effective on 

April 2, 2008. A state public hearing is 

scheduled for May 2, 2008. 

In summary, the negotiated rules 

provide for the open burning of crop 

residue through a Permit by Rule 

program at IDAPA 58.01.01.617 through 

623 and address visible emissions 

requirements at IDAPA 58.01.01.625.05. 

These rule changes are discussed below. 

Description of the Crop Residue (Permit 

by Rule) Burning Program 

IDAPA 58.01.01.617 provides that the 

open burning of crop residue on fields 

where the crops were grown is an 

allowable form of open burning if 

conducted in accordance with 

provisions contained in IDAPA 

58.01.01.618 through 623. Under these 

rules, no person shall conduct an open 

burn of crop residue without obtaining 

the applicable permit by rule. IDAPA 

58.01.01.618 contains the general 

requirements for obtaining a permit by 

rule, IDAPA 58.01.01.619 and 620 

contain the registration and fee 

requirements for obtaining a permit by 

rule, IDAPA 58.01.01.621 contains burn 

determination criteria and a Web site 

notification process, IDAPA 

58.01.01.622 provides general 

provisions (covering such items as 

training requirements, reporting 

requirements, and certain limitations on 

burning), and IDAPA 58.01.01.623 

provides requirements for public 

notification. In brief, under these 

requirements, a person desiring to burn 

crop residue must register at least thirty 

days in advance of the date of the 

proposed burn, pay a fee at least seven 

days prior to the burn, contact DEQ for 

initial approval at least 12 hours prior 

to the burn, obtain final approval from 

the IDEQ the morning of the burn, and 

submit a post-burn report to the IDEQ. 

In addition, all persons intending to 

dispose of crop residue through burning 

must abide by all of the general 

provisions in IDAPA 58.01.01.622. 

The burn criteria for the IDEQ to 

approve a request to burn are described 

in IDAPA 58.01.01.621. Importantly, 

before approving a permittee’s request 

to burn, the IDEQ must determine that 

ambient air quality levels do not exceed 

seventy five percent of the level of any 

National Ambient Air Quality Standards 

(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 

58.01.01.556.4 Thus, IDEQ will not 

approve a burn if these levels are 

expected to be exceeded as a result of 

the burn. In determining whether to 

approve the burn, DEQ 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 58.01.01.621.01. 

The IDEQ must also notify the public as 

provided in IDAPA 58.01.01.623. 

The new rules include a number of 

general provisions that apply to all 

persons intending to dispose of crop 

residue through burning. For example, 

the rules allow burning to be conducted 

only on designated burn days, and 

provide that burning shall not be 

conducted on weekends, holidays or 

after sunset or before sunrise. 

Additionally, the person conducting the 

burn must have a portable 

communication device, like a cellular 

phone; must attend crop residue 

burning training; and must submit a 

post burn report to IDEQ. IDAPA 

58.01.01.622.01. 

An Operating Guide to be developed 

by IDEQ will serve as the main crop 

residue burning Smoke Management 

Program implementation tool. The 

Operating Guide will incorporate the 

applicable agreement points in the 

December 2007 agreement, air quality 

rule requirements, elements of the Nez 

Perce smoke management program, 

elements of the Washington smoke 

management program, and elements 

specific to Idaho’s program including 

specific meteorological, air quality, and 

burn parameters required for burn 

approval. More information about the 

Operating Guide can be found in 

Section 6.1.6 of the 2008 draft SIP 

revision request. 

The IDEQ has not submitted this 

Operating Guide as part of its 2008 SIP 

revision request, and the EPA is not 

relying on it, or its details, for purposes 

of proposing approval of the SIP. 

Further, the Operating Guide may not be 

read, or be changed, in a way that 

substantively modifies the terms that are 

approved into the SIP. Only by formally 

adopting under State law and 

submitting revised statutory and/or 

regulatory requirements to the EPA, may 

a State seek to revise its federally 

approved and enforceable SIP, and EPA 

approval of such submission is required 

before a SIP’s enforceable requirements 

may be modified. Therefore, the EPA 

considers Idaho’s Operating Guide, once 

it is developed, to not have any 

potential effect on the SIP requirements 

we are proposing to approve today. 

Provision Addressing Visible Emissions 

at IDAPA 58.01.01.625 

IDAPA 58.01.01.625.05 contains a 

general 20% opacity visible emission 

limitation and provides that EPA 

Method 9 at 40 CFR Part 60 is generally 

the appropriate test method. In 2008, as 

part of the negotiated rulemaking, IDEQ 

added a new provision to IDAPA 

58.01.01.625 to specify that section 625 

‘‘shall not apply to the open burning of 

crop residue.’’ Section 6.1.3 of the 2008 

SIP revision request explains that, as in 

the Nez Perce Tribal Federal 

Implementation Plan, 40 CFR 49.124(c), 

and the previous Idaho Smoke 

Management and Crop Residue Disposal 

Act, the stakeholders also agreed in the 

negotiated rulemaking that the opacity 

standard in IDAPA 58.01.01.625 shall 

not apply to the open burning of crop 

residue. 

2. Section 110(l) Requirements 

Under section 110(l) of the Clean Air 

Act, the Administrator may not approve 

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].’’

To address this requirement, the EPA 

reviewed and analyzed air monitoring 

data from Federal Reference Method 

(FRM) and Federal Equivalent Method 

(FEM) monitors in Idaho’s EPAapproved monitoring network and 

compared the data to the National 

Ambient Air Quality Standards 

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5The NAAQS pollutants are carbon monoxide, 

lead, nitrogen dioxide, particulate matter, ozone, 

and sulfur dioxide. 

6Following the 9th Circuit’s ruling, crop residue 

burning did not occur in Idaho in 2007 on fields 

under state jurisdiction. 

7A design value is a statistic that describes the 

air quality status of a given area relative to the level 

of the National Ambient Air Quality Standards 

(NAAQS). 

8PM2.5 refers to particles with a nominal mean 

aerodynamic diameter less than or equal to 2.5 

micrometers. The annual standard is 15 micrograms 

per cubic meter, based on the 3-year average of 

annual mean PM2.5 concentrations. The 24-hour 

standard is 35 micrograms per cubic meter, based 

on the 3-year average of the 98th percentile of 24- 

hour concentrations. 

9One other area, the Fort Hall nonattainment area 

(located on the Fort Hall Reservation), is also 

designated nonattainment for PM10. Recent data 

show that PM10 air monitoring values for this area 

are also well below the NAAQS. Since the 

shutdown of the FMC facility in the Fort Hall 

nonattainment area in December 2001, PM10 levels 

have been well below the standard, except for a few 

days when there were also high winds. 

10The 24 hour PM10 NAAQS is 150 u ́ g/m3. 

11Over the past 10 years, Sandpoint has had no 

exceedances of the PM10 NAAQS and Pinehurst has 

had only one, on February 19, 1998. However, the 

Pinehurst exceedance did not result in a violation 

and was not likely the result of the open burning 

of crop residue because such burning does not 

typically occur during that time of year. 

12The 8-hour ozone standard was lowered from 

0.08 parts per million to 0.075 parts per million. 

States must make recommendations to EPA no later 

than March 2009 for areas to be designated 

attainment, nonattainment and unclassifiable. 

13Products of incomplete combustion include 

volatile organic compounds and nitrogen oxides, 

both of which are precursors to ozone. 

(NAAQS) for all pollutants.5 Idaho’s 

network, as it was most recently 

approved by the EPA on November 21, 

2007, includes 25 FEM and FRM 

monitors throughout the state. Idaho 

also operates about a dozen other 

monitors that are not FEM or FRM 

monitors that support IDEQ’s air quality 

forecasting and smoke management 

programs. More than half of the total 

monitors are PM2.5 monitors. 

Open burning of crop residue has 

been a common practice in many parts 

of Idaho for decades and continued 

through 2006, notwithstanding the fact 

of the Ninth Circuit’s 2007 ruling that 

the EPA-approved SIP prohibited such 

burning. Consequently, the air quality 

monitoring data obtained in Idaho prior 

to 2007 would include the actual air 

quality impacts associated with crop 

residue burning that are detectable by 

Idaho’s monitors.6 Therefore, review 

and analysis of the monitoring data also 

reflects analysis of any impacts detected 

by the monitors resulting from crop 

residue burning. 

Specifically, our review focused on 

air quality data collected by Idaho’s 

EPA-approved monitoring network and 

entered into the EPA’s Air Quality 

System (AQS) over the past 10 years 

(1997 to 2007). This ten year timeframe 

is consistent with the period the EPA 

uses for criteria air pollutant summary 

reports that are extracted routinely from 

AQS (e.g., AirData reports), and it is also 

the period specified for certain air 

quality planning requirements under the 

Clean Air Act. See section 175A of the 

Act. 

Based on our review of these 

monitoring data, there is no evidence 

from the monitors of a violation of the 

NAAQS as a result of the open burning 

of crop residue. We considered all of the 

NAAQS pollutants and reviewed the 

monitoring data for the entire state. The 

most relevant pollutants for this 

discussion are PM2.5, PM10, and ozone. 

PM2.5 and ozone are relevant because 

the EPA’s recent review of the NAAQS 

for these pollutants resulted in more 

stringent standards (71 FR 61144 

(October 17, 2006) and 73 FR 16426 

(March 27, 2008)) and monitoring data 

indicate that these new standards may 

be exceeded in some areas in Idaho. 

PM10 is relevant because the only 

existing nonattainment areas in Idaho 

are for PM10. There are no 

nonattainment areas for carbon 

monoxide, sulfur dioxide, nitrogen 

dioxide or lead. AQS data show the 

levels of these pollutants are well below 

the standards. 

PM2.5

There are two areas in Idaho with 

design values 7 above the NAAQS for 

PM2.5.8 These areas are the Pinehurst 

area and the Franklin County area. In 

December 2007, both areas were 

recommended by Idaho as PM2.5

nonattainment areas for the 24 hour 

PM2.5 NAAQS. 

The Pinehurst area historically 

experiences wintertime (November 

through February) stagnation events. 

Consistently, data show that past 

exceedances have occurred almost 

exclusively during the wintertime and 

not when the open burning of crop 

residue typically occurs (March and 

April for the spring crop burning season 

and mid-July through the end of October 

for the fall crop burning season). 

According to Idaho’s December 2007 

recommendation letter, the main 

emission sources contributing to PM2.5

in the Pinehurst area are residential 

wood heating, vehicles, open burning of 

yard debris, and slash burning. Idaho 

attributed none of the exceedances of 

PM2.5 to the burning of crop residue. 

The Franklin County area also 

experiences wintertime stagnation 

events, and the data show that past 

PM2.5 exceedances have occurred in the 

wintertime; not when the open burning 

of crop residue typically occurs. Idaho’s 

December 2007 recommendation letter 

identifies the main emission sources 

contributing to PM2.5 in Franklin County 

as vehicle, residential wood heating, 

and agriculture (feedlot and dairy 

ammonia). Like for Pinehurst, Idaho 

attributed none of the PM2.5

exceedances in Franklin County to the 

burning of crop residue. 

PM10

For PM10, we reviewed air quality 

data for the only two nonattainment 

areas in Idaho under Idaho jurisdiction.9

These are Pinehurst and Sandpoint, 

both of which are designated 

nonattainment areas for the PM10

NAAQS.10 Both have been meeting the 

PM10 NAAQS for more than 10 years 

and have PM10 design values well below 

the NAAQS.11

Ozone 

Although AQS data show that all 

areas in Idaho are meeting the existing 

8 hour NAAQS for ozone, the EPA 

recently revised and lowered the 

standard, effective May 27, 2008.12 At 

the new level, our initial review of AQS 

data shows that the design value for one 

area, the Boise, Idaho area, may be 

above the new NAAQS based on 2005–

2007 data. Further review shows that 

the highest values have been measured 

typically in the hottest summer months 

of July and August. Since crop residue 

burning has occurred historically in 

August, we can not rule out the 

possibility of precursors to ozone 13

from crop residue burning contributing 

to high ozone days. But as discussed 

below, the new crop residue disposal 

rules have safeguards that address the 

possibility of such contributions, and 

that would preclude crop residue 

burning on days when a NAAQS 

exceedance might occur. 

In sum, 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 in 

IDAPA 58.01.01.617 through 623 of 

Idaho’s new crop residue burning 

program adequately addresses those 

concerns by preventing crop residue 

burning on days when a NAAQS 

exceedance may occur. Specifically, 

IDAPA 58.01.01.621 prohibits burn 

approval if ambient air quality levels 

exceed seventy-five percent of the level 

of any NAAQS on any day or if those 

levels are projected to exceed such level 

over the next twenty-four hours. In 

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14The rule explicitly provides that the 

Department shall NOT authorize a burn if 

conditions are such that institutions with sensitive 

populations will be adversely impacted or when the 

plume is expected to impact such institutions. 

15This language is found in section 1153.08 and 

reads in full: ‘‘The open burning of plant life grown 

on the premises in the course of any agricultural, 

Continued 

addition, the rules specifically prohibit 

burn approval if the ambient air quality 

levels have reached or are forecasted to 

reach and persist at, eighty percent of 

the one hour action criteria for 

particulate matter. Thus, under these 

provisions, the burning of crop residue 

would simply not occur if air quality 

levels exceed the NAAQS or if burning 

could result in a NAAQS exceedance. 

In addition, pursuant to IDAPA 

58.01.01.621.01 a. through i., the IDEQ 

may also consider a number of 

additional factors, in deciding whether 

to approve a particular burn request. 

The factors include consideration of the 

expected emissions from all burns 

proposed for the same date; the 

proximity of other burns as well as 

potential emission sources within the 

area to be affected by the proposed burn; 

the moisture content of the material to 

be burned, the acreage, crop type, and 

fuel characteristics, meteorological 

conditions, proximity to institutions 

with sensitive populations such as 

schools, hospitals and residential health 

care facilities;14 proximity to public 

roadways or airports; and other factors 

relevant to preventing exceedances of 

the air quality concentrations in the 

IDAPA 58.01.01.621. Consideration of 

these factors will help ensure that the 

crop residue burning will not interfere 

with the NAAQS or any other 

applicable requirement of the Act. 

Idaho Code 39–108 provides DEQ 

with investigation, inspection, and 

enforcement authority over violations of 

Idaho Code 39–114 (the air quality 

rules) and a Permit by Rule issued 

pursuant to the Air Quality Rules. A 

notice of violation with a penalty of up 

to $19,000 per day per violation may be 

assessed. Idaho Code 39–108(30) and 

(5). Civil and criminal enforcement 

actions may be taken for violations 

pursuant to Idaho Code 39–109. 

Supporting Materials in the 2008 Draft 

SIP Revision 

In the 2008 draft SIP revision request, 

the IDEQ submitted additional 

documentation and analysis showing 

that past smoke management practices 

in Idaho did not contribute to NAAQS 

violations. The draft SIP revision 

request includes additional technical 

analysis, including 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. The IDEQ 

also provided its rationale for the 

provision added at IDAPA 

58.01.01.625.05 addressing visible 

emissions. It explains that, as in the FIP 

for the Nez Perce Reservation, 40 CFR 

49.124(c), and the previous Smoke 

Management and Crop Residue Disposal 

Act, the stakeholders also agreed in the 

negotiated rulemaking that the opacity 

standard in IDAPA 58.01.01.625 shall 

not apply to the open burning of crop 

residue (IDAPA 58.01.01.625.05). 

We acknowledge that the Federal Air 

Rules for Reservations (FARR) exclude 

open burning from the visible emissions 

requirements. 70 FR 18074 (April 8, 

2005). The FARR established the basic 

air quality rules for all of the Indian 

Reservations in Idaho, Oregon and 

Washington. Thus, these requirements 

apply not only to the Nez Perce Indian 

Reservation, but to all Indian 

Reservations in Idaho, Oregon, and 

Washington. Therefore, open burning on 

any of these reservations is not subject 

to the visible emission standards on any 

of these reservations. 

When promulgating the FARR, the 

EPA stated that ‘‘EPA is also proposing 

specific exemptions to the rule in a 

manner similar to the State and local 

agency rules in the docket. These 

exemptions include sources or activities 

for which compliance with the opacity 

rule would not be feasible or would 

impose unreasonable costs (e.g., open 

burning, agricultural activities, 

residential space heating, public roads, 

sweat lodges, non-commercial smoke 

houses).’’ (Technical Support Document 

for the FARR, Docket ID No. OAR–

2004–0067, page 18.) Recognizing we 

have promulgated an exemption from 

the visible emissions standard for open 

burning in the past ‘‘in a manner similar 

to the State and local agency rules,’’ the 

EPA determines that the State’s new 

provision regarding visible emissions is 

reasonable. 

In sum, based on our review of past 

air quality monitoring data for Idaho, 

the supporting material provided by the 

IDEQ, and the crop burning provisions 

at IDAPA 58.01.01.617 through 623, we 

conclude that the open burning 

revisions related to crop residue burning 

(IDAPA 58.01.01.617 through 623) and 

the provision addressing visible 

emissions at IDAPA 58.01.01.625.05, 

would not interfere with any applicable 

requirement concerning attainment and 

reasonable further progress or any other 

applicable requirement of the Act. 

3. Section 193 Requirements 

Section 193 of the Act provides that 

no control requirement in effect, or 

required to be adopted by an order, 

settlement agreement, or plan in effect 

before the date of the enactment of the 

Clean Air Act Amendments of 1990 in 

any area which is a nonattainment area 

for any air pollutant, may be modified 

after such enactment in any manner 

unless the modification insures 

equivalent or greater emission 

reductions of such air pollutant. 

The Clean Air Act Amendments of 

1990 were enacted on November 15, 

1990. Therefore, the question is whether 

the open burning revisions and the 

provision addressing visible emissions 

in the 2008 draft SIP revision request 

insure equivalent or greater emission 

reductions compared with the open 

burning requirements for crop residue 

disposal and the provisions addressing 

visible emissions in nonattainment 

areas reflected in the approved Idaho 

SIP before November 15, 1990. 

According to information from IDEQ, 

the burning of crop residue does not 

occur within the boundaries of either of 

Idaho’s two nonattainment areas 

(Pinehurst and Sandpoint). Because 

section 193 applies only to requirements 

in effect as of November 15, 1990, in 

nonattainment areas and no burning of 

crop residue occurs in any of Idaho’s 

nonattainment areas, we conclude that 

the requirements in section 193 are met. 

Within Idaho’s nonattainment areas, 

exempting crop residue burning from 

the visible emissions standard has no 

effect on the emissions reductions 

achieved by the visible emissions 

requirements. Therefore, the SIP 

modification insures equivalent 

emissions reductions in those 

nonattainment areas. 

Moreover, specifically regarding 

allowing crop residue disposal burning 

as a lawful form of open burning, based 

on our review of the SIP in effect before 

November 15, 1990, and the 2008 draft 

SIP revision request, we have 

determined that the 2008 draft SIP 

revision insures equivalent or greater 

emission reductions than the preNovember 15, 1990, Idaho SIP. The SIP 

in effect in Idaho before November 15, 

1990, allowed the open burning of crop 

residue. Specifically, Title 1, Chapter 1 

of Idaho’s Rules and Regulations for the 

Control of Air Pollution in Idaho 

Manual provided ‘‘[t]he open burning of 

plant life grown on the premises in the 

course of any agricultural, forestry, or 

land clearing operation may be 

permitted when it can be shown that 

such burning is necessary and that no 

fire or traffic hazard will occur...’’ 15 The 

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forestry, or land clearing operation may be 

permitted when it can be shown that such burning 

is necessary and that no fire or traffic hazard will 

occur. Convenience of disposal is not of itself a 

valid necessity for burning. 1. It shall be the 

responsibility of any person conducting such 

burning to make every reasonable effort to burn 

only when weather conditions are conducive to a 

good smoke dissipation and only when an 

economical and reasonable alternate method of 

disposal is not available. 2. When such alternate 

method is made available, it shall be put into use 

within a reasonable time. 3. Any person conducting 

an agricultural, forestry, or land clearing burning 

operation similar to an operation carried out by a 

governmental agency shall follow the rules and 

procedures of the agency with regard to minimizing 

air pollution. 4. When such burning creates air 

pollution or a public nuisance, additional 

restrictions may be imposed to minimize the effect 

upon the environment. 

16 ‘‘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, 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. 

17Since the CAA was amended in 1990, EPA has 

been clear in its approvals of State programs that 

the approved State program does not extend into 

Indian country. It is EPA’s position that, absent an 

explicit finding of jurisdiction and approval in 

Indian country, State and local governments lack 

authority under the CAA over air pollution sources, 

and the owners or operators of air pollution 

sources, throughout Indian country. 

EPA approved these provisions on May 

31, 1972, and re-approved them on July 

28, 1982. 37 FR 10861 and 47 FR 32530. 

This SIP applied statewide and allowed 

open burning of crop residue if minimal 

conditions were met. Although the SIP 

provisions included conditions 

intended to minimize the effects of 

burning, the conditions were vague. For 

instance they required that the burning 

be necessary and that ‘‘no fire or traffic 

hazard will occur’’ (at section 1153.08) 

and to ‘‘make every reasonable effort to 

burn only when weather conditions are 

conducive to a good smoke dissipation.’’

(at section 1153.08(a)). These provisions 

were in effect in Idaho’s federallyapproved SIP as of November 15, 1990. 

The rule provisions that the Ninth 

Circuit determined prohibit the burning 

of crop residue were not approved into 

the federally-approved SIP until July 23, 

1993. 58 FR 39445. 

In contrast, the 2008 draft SIP revision 

request is more specific and contains 

numerous and explicit procedures and 

measures to limit emissions associated 

with crop residue burning. For example, 

prior to conducting a burn, a person 

must obtain a permit by rule as defined 

in IDAPA 58.01.01.618. Any person 

applying to burn crop residue must 

register annually and provide detailed 

and specific information to the IDEQ 

regarding a proposed burn. 

Additionally, prior to conducting the 

burn, a person must receive a specific 

approval from the IDEQ to conduct the 

burn and must confirm the approval on 

the morning of the burn. As discussed 

above, the IDEQ’s approval of burn 

requests is tied to specific air quality 

levels below the NAAQS and burning is 

completely prohibited on certain days 

and at certain times. Other conditions 

require that special consideration be 

made for sensitive populations and are 

designed to ensure the public is notified 

and has ready access to burn call 

information. In light of these more 

specific and more stringent provisions, 

the EPA concludes that the approval of 

the 2008 draft SIP revision request will 

insure equivalent or greater emission 

reductions than did the Idaho SIP in 

effect on November 15, 1990. 

The IDEQ also provides discussion of 

whether the 2008 draft SIP revision 

request insures equivalent or greater 

emission reductions compared to 

Idaho’s pre-November 15, 1990, 

federally-approved SIP. It points out 

that the SIP in place before 1990 

required no air quality impact analysis 

and applied not only to crop residue 

grown in the field generated but to any 

plant life grown on any agricultural 

operation. It also points out that prior to 

1990, Idaho’s SIP authorized the broad 

practice of agricultural burning. It 

stated: ‘‘The open burning of plant life 

grown on the premises in the course of 

any agricultural, forestry or land 

clearing operating may be permitted 

when it can be shown that such burning 

is necessary and no fire or traffic hazard 

will occur. Convenience of disposal is 

not of itself a valid necessity for 

burning.’’ 37 FR 10842, 10861 (May 13, 

1972). 

The IDEQ also explains that the crop 

residue burning program provided in 

the 2008 draft SIP revision request 

creates a stronger, more protective 

program than that in place prior to 1990. 

Moreover, it adds, the only two 

nonattainment areas in the state, 

Sandpoint and Pinehurst, in which crop 

residue disposal burning does not occur, 

experience high concentrations of 

particulate matter in winter months, not 

in the early fall months when crop 

residue burning mainly occurs in other 

areas. The IDEQ points to these 

considerations and the required 

implementation of other control 

measures for these areas, and concludes 

that the SIP revision will not in any way 

relax any other control requirement in 

effect in the Pinehurst or Sandpoint 

nonattainment areas. 

III. Scope of Proposed Action 

Idaho has not demonstrated authority 

to implement and enforce IDAPA 

Chapter 58 within ’’Indian Country’’ as 

defined in 18 U.S.C. 1151.16 Therefore, 

the EPA proposes that this SIP approval 

not extend to ’’Indian Country’’ in 

Idaho. See CAA sections 110(a)(2)(A) 

(SIP shall include enforceable emission 

limits), 110(a)(2)(E)(i) (State must have 

adequate authority under State law to 

carry out SIP), and 172(c)(6) 

(nonattainment SIPs shall include 

enforceable emission limits). This is 

consistent with the EPA’s previous 

approval of Idaho’s PSD program, in 

which the EPA specifically disapproved 

the program for sources within Indian 

Reservations in Idaho because the State 

had not shown it had authority to 

regulate such sources. See 40 CFR 

52.683(b). It is also consistent with the 

EPA’s approval of Idaho’s title V air 

operating permits program. See 61 FR 

64622, 64623 (December 6, 1996) 

(interim approval does not extend to 

Indian Country); 66 FR 50574, 50575 

(October 4, 2001) (full approval does not 

extend to Indian Country).17

IV. 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, the EPA’s role is to 

approve state choices, provided that 

they meet the criteria of the Clean Air 

Act. Accordingly, this proposed 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 proposed 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 

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Federal Register / Vol. 73, No. 83 / Tuesday, April 29, 2008 / Proposed Rules 23163 

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 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 EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

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: April 21, 2008. 

Elin D. Miller, 

Regional Administrator, Region 10. 

40 CFR part 52 is proposed to be 

amended as follows: 

PART 52—[AMENDED] 

1. The authority citation for Part 52 

continues to read as follows: 

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

Subpart N—Idaho 

2. In § 52.670, the table in paragraph 

(c) is amended as follows: 

a. By revising entries 600 through 603. 

b. By revising entries 606 through 

610. 

c. By revising entries 612 and 613. 

d. By revising entries 615 though 617. 

e. By adding in numerical order 

entries 618 though 623. 

f. By revising entry 625. 

§ 52.670 Identification of plan. 

* * * * * 

(c) * * * 

EPA—APPROVED IDAHO REGULATIONS

[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)] 

State citation Title/subject State effective date EPA approval date Explanations 

58.01.01—Rules for the Control of Air Pollution in Idaho 

* * * * * * * 

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

Burning.

4/02/08 4/29/08 ....................................

[Insert page number where the 

document begins].

Previous EPA Approval Date 

of 7/11/05 removed in response to 9th Circuit remand. 

601 ........................................... Fire Permits, Hazardous Materials and Liability.4/02/08 4/29/08 ....................................

[Insert page number where the 

document begins].

Previous EPA Approval Date 

of 7/11/05 removed in response to 9th Circuit remand. 

602 ........................................... Nonpreemption of Other Jurisdictions.4/02/08 4/29/08 ....................................

[Insert page number where the 

document begins].

Previous EPA Approval Date 

of 7/11/05 removed in response to 9th Circuit remand. 

603 ........................................... General Restrictions ............... 4/02/08 

3/21/03 

5/1/94 

4/29/08 ....................................

[Insert page number where the 

document begins].

Previous EPA Approval Date 

of 7/11/05 removed in response to 9th Circuit remand. 

606 ........................................... Categories of Allowable Burning.4/02/08 4/29/08 ....................................

[Insert page number where the 

document begins].

Previous EPA Approval Date 

of 7/11/05 removed in response to 9th Circuit remand. 

607 ........................................... Recreational and Warming 

Fires.

3/21/03 4/29/08 ....................................

[Insert page number where the 

document begins].

Previous EPA Approval Date 

of 7/11/05 removed in response to 9th Circuit remand. 

608 ........................................... Weed Control Fires ................. 5/1/94 4/29/08 ....................................

[Insert page number where the 

document begins].

Previous EPA Approval Date 

of 7/11/05 removed in response to 9th Circuit remand. 

609 ........................................... Training Fires .......................... 3/21/03 4/29/08 ....................................

[Insert page number where the 

document begins].

Previous EPA Approval Date 

of 7/11/05 removed in response to 9th Circuit remand. 

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23164 Federal Register / Vol. 73, No. 83 / Tuesday, April 29, 2008 / Proposed Rules 

EPA—APPROVED IDAHO REGULATIONS—Continued 

[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)] 

State citation Title/subject State effective date EPA approval date Explanations 

610 ........................................... Industrial Flares ...................... 3/21/03 4/29/08 ....................................

[Insert page number where the 

document begins].

Previous EPA Approval Date 

of 7/11/05 removed in response to 9th Circuit remand. 

* * * * * * * 

612 ........................................... Landfill Disposal Site Fires ..... 3/21/03 4/29/08 ....................................

[Insert page number where the 

document begins].

Previous EPA Approval Date 

of 7/11/05 removed in response to 9th Circuit remand. 

613 ........................................... Orchard Fires .......................... 3/21/03 

5/1/94 

4/29/08 ....................................

[Insert page number where the 

document begins].

Previous EPA Approval Date 

of 7/11/05 removed in response to 9th Circuit remand. 

* * * * * * * 

615 ........................................... Dangerous Material Fires ....... 3/21/03 4/29/08 ....................................

[Insert page number where the 

document begins].

Previous EPA Approval Date 

of 7/11/05 removed in response to 9th Circuit remand. 

616 ........................................... Infectious Waste Burning ........ 3/21/03 4/29/08 ....................................

[Insert page number where the 

document begins].

Previous EPA Approval Date 

of 7/11/05 removed in response to 9th Circuit remand. 

617 ........................................... Crop Residue .......................... 4/02/08 4/29/08 ....................................

[Insert page number where the 

document begins].

618 ........................................... Permit By Rule ........................ 4/02/08 4/29/08 ....................................

[Insert page number where the 

document begins].

619 ........................................... Registration for Permit By 

Rule.

4/02/08 4/29/08 ....................................

[Insert page number where the 

document begins].

620 ........................................... Registration Fee ..................... 4/02/08 4/29/08 ....................................

[Insert page number where the 

document begins].

621 ........................................... Burn Determination ................. 4/02/08 4/29/08 ....................................

[Insert page number where the 

document begins].

622 ........................................... General Provisions ................. 4/02/08 4/29/08 ....................................

[Insert page number where the 

document begins].

623 ........................................... Public Notification ................... 4/02/08 4/29/08 ....................................

[Insert page number where the 

document begins].

625 ........................................... Visible Emissions .................... 4/02/08 4/29/08 ....................................

[Insert page number where the 

document begins].

* * * * * 

[FR Doc. E8–9269 Filed 4–28–08; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 67 

[Docket No. FEMA–B–7774] 

Proposed Flood Elevation 

Determinations 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Proposed rule. 

SUMMARY: Comments are requested on 

the proposed Base (1 percent annualchance) Flood Elevations (BFEs) and 

proposed BFE modifications for the 

communities listed in the table below. 

The purpose of this notice is to seek 

general information and comment 

regarding the proposed regulatory flood 

elevations for the reach described by the 

downstream and upstream locations in 

the table below. The BFEs and modified 

BFEs are a part of the floodplain 

management measures that the 

community is required either to adopt 

or show evidence of having in effect in 

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