[Federal Register Volume 62, Number 68 (Wednesday, April 9, 1997)]
[Rules and Regulations]
[Pages 17093-17095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9108]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[UT-001-0001a; FRL-5802-2]


Clean Air Act Approval and Promulgation of Air Quality 
Implementation Plan Revision for Utah; Visibility Protection

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA approves a revision to Utah's State Implementation Plan 
(SIP) for Visibility Protection, as submitted by the Governor with a 
letter dated July 25, 1996. The revision was adopted by the State in 
1993 to address comments received from the 1992 Utah Legislature's 
Administrative Rules Review Committee regarding the need to remove a 
visibility policy statement from a regulation format (since it was not 
a rule). The State responded by deleting the policy statement from the 
Utah Air Conservation Regulations and adding the text into the 
Visibility Protection SIP. This submittal was a necessary 
``housekeeping'' step to bring the federally approved SIP up-to-date 
with administrative revisions that took place at the State in 1993.

DATES: This action will become effective on June 9, 1997 unless adverse 
comments are received by May 9, 1997. If the effective date is delayed, 
timely notice will be published in the Federal Register.

ADDRESSES: Comments should be addressed to: Richard R. Long, Director, 
Air Program, EPA Region VIII at the address listed below. Copies of the 
State's submittal and other information are available for inspection 
during normal business hours at the following locations: Air Program, 
Environmental Protection Agency, Region VIII, 999 18th Street, suite 
500, Denver, Colorado 80202-2405; and Utah Department of Environmental 
Quality, Division of Air Quality, 150 North 1950 West, P.O. Box 144820, 
Salt Lake City, Utah 84114-4820.

FOR FURTHER INFORMATION CONTACT: Amy Platt, 8P2-A, Environmental 
Protection Agency, Region VIII, (303) 312-6449.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 169A of the Clean Air Act (CAA or Act),<SUP>1 42 U.S.C. 
7491, establishes as a National goal the prevention of any future, and 
the remedying of any existing, anthropogenic visibility impairment in 
mandatory Class I Federal areas <SUP>2 (referred to herein as the 
``National goal'' or ``National visibility goal''). Section 169A calls 
for EPA to, among other things, issue regulations to assure reasonable 
progress toward meeting the National visibility goal, including 
requiring each State with a mandatory Class I Federal area to revise 
its SIP to contain such emission limits, schedules of compliance and 
other measures as may be necessary to make reasonable progress toward 
meeting the National goal. CAA section 169A(b)(2). Section 110(a)(2)(J) 
of the CAA, 42 U.S.C. 7410(a)(2)(J), similarly requires SIPs to meet 
the visibility protection requirements of the CAA.
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    \1\ The Clean Air Act is codified, as amended, in the U.S. Code 
at 42 U.S.C. 7401, et seq.
    \2\ Mandatory class I Federal areas include international parks, 
national wilderness areas, and national memorial parks greater than 
five thousand acres in size, and national parks greater than six 
thousand acres in size, as described in section 162(a) of the Act 
(42 U.S.C. 7472(a)). Each mandatory Class I Federal area is the 
responsibility of a ``Federal land manager'' (FLM), the Secretary of 
the department with authority over such lands. See section 302(i) of 
the Act, 42 U.S.C. 7602(i).
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    EPA promulgated regulations that require affected States to, among 
other things, (1) coordinate development of SIPs with appropriate 
Federal Land Managers (FLMs); (2) develop a program to assess and 
remedy visibility impairment from new and existing sources; and (3) 
develop a long-term (10-15 years) strategy to assure reasonable 
progress toward the National visibility goal. See 45 FR 80084, December 
2, 1980 (codified at 40 CFR 51.300-51.307). The regulations provide for 
the remedying of visibility impairment that is reasonably attributable 
to a single existing stationary facility or small group of existing 
stationary facilities. These regulations require that the SIPs provide 
for periodic review, and revision as appropriate, of the long-term 
strategy not less frequently than every three years, that the review 
process include consultation with the appropriate FLMs, and that the 
State provide a report to the public and EPA that includes an 
assessment of the State's progress toward the National visibility goal. 
See 40 CFR 51.306(c).
    The Utah Governor submitted a SIP revision for Visibility 
Protection with a letter dated April 26, 1985. The submittal met the 
requirements for visibility monitoring (40 CFR 51.305) and visibility 
New Source Review (40 CFR 51.307). EPA approved the submittal on May 
30, 1986 (51 FR 19550).
    On November 24, 1987 (52 FR 45132), EPA disapproved the SIPs of 
states, including Utah, that failed to comply with the requirements of 
the provisions of 40 CFR 51.302 (visibility general plan requirements) 
and 51.306 (visibility long-term strategy). EPA also incorporated 
corresponding Federal plans and regulations into the SIPs of these 
states pursuant to section 110(c)(1) of the CAA, 42 U.S.C. 7410(c)(1).

[[Page 17094]]

    The Governor of Utah submitted a SIP revision for visibility 
protection with a letter dated December 11, 1987. The submittal 
satisfied requirements for visibility general plan requirements (40 CFR 
51.302) and visibility long-term strategy (40 CFR 51.306). EPA approved 
this SIP revision on January 17, 1989 (54 FR 1694), and this revision 
replaced the Federal plans and regulations in the Utah Visibility 
Protection SIP.
    The April 26, 1985 submittal and December 11, 1987 submittal 
discussed above currently constitute the Utah Visibility Protection 
SIP.

II. This Action

    With a letter dated July 25, 1996, the Governor of Utah submitted a 
revision to the Utah Visibility Protection SIP. This submittal was a 
necessary ``housekeeping'' step to bring the federally approved SIP up-
to-date with administrative revisions that took place at the State in 
1993.
    In 1992, the Utah Legislature reviewed the State's air quality 
rules and requested that the Utah Air Quality Board's policy on scenic 
views be removed from the rules, since it was a policy statement and 
not a rule. The Board responded by deleting the pertinent section of 
the rules and adding the text to the Visibility Protection SIP. The 
changes became effective on March 29, 1993.

A. Analysis of State Submission

1. Procedural Background
    The CAA requires States to observe certain procedural requirements 
in developing implementation plans and plan revisions for submission to 
EPA. Section 110(a)(2) of the CAA provides that each implementation 
plan submitted by a State must be adopted after reasonable notice and 
public hearing. Section 110(l) of the CAA similarly provides that each 
revision to an implementation plan submitted by a State under the CAA 
must be adopted by such State after reasonable notice and public 
hearing.
    To entertain public comment, the Utah Air Quality Board (UAQB), 
after providing adequate notice, held a public hearing on January 28, 
1993 to consider the proposed revisions to the Utah Visibility 
Protection SIP and Utah Air Conservation Regulations. Subsequent to the 
public hearing, the UAQB adopted the revisions on March 26, 1993, and 
the revisions became effective on March 29, 1993. The Governor of Utah 
submitted the revisions to EPA with a letter dated July 25, 1996.
2. Content of SIP Revision
a. Utah Air Conservation Regulation R307-5  Deleted and Text Added to 
Visibility Protection SIP
    The Utah Legislature's Administrative Rules Review Committee 
reviewed R307-5 and found it to be a policy statement of the UAQB 
rather than a rule. In fact, the title of the rule was ``Policy of the 
Air Conservation Committee Concerning the Protection of Scenic Views 
Associated with the Mandatory Class I Areas from Significant Impairment 
for Visibility.'' This rule was deleted and the bulk of it was added to 
the text of the Utah SIP, Section 15,<SUP>3 Visibility Protection, in a 
new subsection 15.10. This policy statement, which had already been 
approved in rule format, is simply being transferred to the SIP text as 
follows.

    \3\ Please note that Utah has renumbered its SIP since the State 
adoption of these revisions. Visibility protection is now in Section 
XVII of the SIP. However, the revision for the renumbering has not 
been acted on yet by EPA.
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    The State recognizes that visibility and the ability to see the 
great scenic views in Southern Utah is a rare and unique treasure 
and should be preserved, both for the benefit and pleasure of Utah 
residents, and to support our large tourist industry. In addition to 
the distance one can see, the clarity, color, and detail of the 
visible features are also important.
    The [Air Conservation] Committee recommends that the Governor of 
Utah seek the cooperation of the Western Governors' Association to 
establish a task force on regional haze. The task force should be 
composed of state air program directors and would provide a 
recommendation to the Governor on the management of regional haze. 
The task force would be expected to hold hearings, create work 
groups, involve local area governments and federal agencies (EPA and 
National Park Service) in developing information and formulating 
recommendations. Based on the recommendations of the task force, the 
governors would develop a policy on controlling regional haze for 
the protection of visibility in the western United States where 
visibility is an important ``treasure'' and resource.

    EPA agrees that the above statement represents policy, not 
regulation, and therefore, the administrative ``housekeeping'' action 
of deleting the language from the Air Conservation Regulations and 
adding it to the text of the Visibility Protection SIP was appropriate. 
The revision is approvable.
b. Utah Air Conservation Regulation R307-2  Amended
    As a result of revising the Visibility Protection section of the 
SIP to create a new subsection 15.10 that contains the policy regarding 
scenic views, R307-2 also was amended. This rule, R307-2, incorporates 
the entire Utah SIP by reference and was amended to reflect the revised 
adoption date by the UAQB for subsection 15.10. EPA is not acting on 
this amendment to R307-2 because EPA's action in this document is 
specific to the Visibility Protection section of the SIP and not the 
entire Utah SIP.

III. Final Action

    EPA is approving a revision to the Utah Visibility Protection SIP 
as submitted to EPA with a letter dated July 25, 1996. This revision 
deletes R307-5, which contained the Utah Air Quality Board's policy 
statement on scenic views, and transfers the policy statement to the 
text of the Visibility Protection SIP in a new subsection 15.10. EPA is 
not acting on the amended R307-2.
    EPA is publishing this action without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in a separate document in this Federal 
Register publication, EPA is proposing to approve the SIP revision 
should adverse or critical comments be filed. This action will be 
effective June 9, 1997 unless, by May 9, 1997, adverse or critical 
comments are received.
    If EPA receives such comments, this action will be withdrawn before 
the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. EPA will not institute a second comment period on this 
action. Any parties interested in commenting on this action should do 
so at this time. If no such comments are received, the public is 
advised that this action will be effective on June 9, 1997.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to a SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.

IV. Administrative Requirements

A. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10,

[[Page 17095]]

1995 memorandum from Mary Nichols, Assistant Administrator for Air and 
Radiation. The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small not-for-profit 
enterprises, and government entities with jurisdiction over populations 
of less than 50,000.
    SIP approvals under section 110 and subchapter I, part D of the 
Clean Air Act do not create any new requirements, but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP approval does not impose any new requirements, I certify 
that it does not have a significant impact on any small entities 
affected. Moreover, due to the nature of the Federal-state relationship 
under the Act, preparation of a regulatory flexibility analysis would 
constitute Federal inquiry into the economic reasonableness of state 
action. The Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 
(1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action proposes to 
approve pre-existing requirements under State or local law, and imposes 
no new Federal requirements. Accordingly, no additional costs to State, 
local, or tribal governments, or to the private sector, result from 
this action.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of this rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

E. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by June 9, 1997. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides.

    Dated: March 14, 1997.
Max H. Dodson,
Acting Regional Administrator.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

    2. Section 52.2320 is amended by adding paragraph (c)(36) to read 
as follows:


Sec. 52.2320  Identification of plan.

* * * * *
    (c) *  *  *
    (36) The Governor of Utah submitted a revision to Utah's State 
Implementation Plan (SIP) for Visibility Protection with a letter dated 
July 25, 1996. The revision was made to add a new subsection 15.10 to 
the SIP to include a policy statement regarding scenic views which was 
deleted from the Utah Air Conservation Regulations.
    (i) Incorporation by reference.
    (A) Utah State Implementation Plan, Subsection 15.10, Policy of the 
Air Conservation Committee Concerning the Protection of Scenic Views 
Associated with Mandatory Class I Areas from Significant Impairment for 
Visibility, adopted on March 26, 1993, and effective on March 29, 1993.
    (ii) Additional material.
    (A) A July 25, 1996 letter from Michael O. Leavitt, Utah Governor, 
to Jack McGraw, EPA Region VIII Acting Regional Administrator, in which 
it was communicated, among other things, that the Utah Air Quality 
Board deleted R307-5 from the Utah Air Conservation Regulations. The 
deletion was effective March 29, 1993.

[FR Doc. 97-9108 Filed 4-8-97; 8:45 am]
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