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[Federal Register Volume 78, Number 8 (Friday, January 11, 2013)]
[Proposed Rules]
[Pages 2359-2361]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-00428]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2011-0640; FRL-9769-7]

Approval and Promulgation of State Implementation Plans: Idaho

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to approve revisions to Idaho's State 
Implementation Plan (SIP) submitted by the Director of the Idaho 
Department of Environmental Quality (IDEQ) on July 13, 2011, for 
approval into the Idaho SIP. The submitted revisions relate to Idaho's 
open burning and crop residue disposal requirements and establish a 
streamlined permitting process for spot burns, baled agricultural 
residue burns, and propane flaming. The submitted revisions also make 
minor changes to the existing crop residue disposal rules to update 
cross references and clarify certain administrative information. This 
action is being taken under the Clean Air Act (the Act or CAA).

DATES: Written comments must be received on or before February 11, 
2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2011-0640, by one of the following methods:
    A. 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.
    D. Email: R10-Public_Comments@epa.gov.
    Instructions: Direct your comments to Docket ID No. EPA-R10-OAR-
2011-0640. 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 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 www.regulations.gov 
or email. The 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 email comment directly to the EPA without going through 
www.regulations.gov, your email 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 
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 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 deneen.donna@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. Summary of Rule Changes
III. Evaluation of Rule Changes
IV. Proposed Action
V. Scope of Proposed Action
VI. Statutory and Executive Order Reviews

I. Background

    Idaho's federally-approved rules at Idaho Administrative Procedures 
Act (IDAPA) 58.01.01.617 through 623 contain the open burning 
requirements for crop residue disposal in Idaho. These rules were 
approved by the EPA on August 1, 2008, (73 FR 44915) and were submitted 
to the EPA 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). More information regarding the Ninth Circuit Court of 
Appeals decision and the federally-approved requirements for crop 
residue disposal can be found in the EPA's proposed and final actions 
on the state's 2008 SIP submittal. 73 FR 23155 (April 29, 2008) and 73 
FR 44915 (August 1, 2008).
    Idaho's federally-approved crop residue disposal rules at IDAPA 
58.01.01.617 currently provide 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 the provisions at IDAPA 58.01.01.618 
through 623. The provisions at IDAPA 58.01.01.618 through 623 are 
described

[[Page 2360]]

in the EPA's proposed action at 73 FR 23159 (April 29, 2008). In brief, 
these rules require that 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 the IDEQ 
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 (covering such items as training 
requirements, reporting requirements, and certain limitations on 
burning).
    The 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.\1\ Thus, the 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, the IDEQ must also 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.
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    \1\ The current one-hour action criteria under IDAPA 
58.01.01.556 is an average of 80 [mu]g/m\3\ for PM2.5 and 
an average of 385 [mu]g/m\3\ for PM10.
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    The IDEQ's SIP revision submitted on July 13, 2011, contains 
changes to the federally-approved crop residue disposal rules at IDAPA 
58.01.01.617 through 623. More specifically, the July 13, 2011, SIP 
submittal revises IDAPA 58.01.01.617, 618, 620, 622, and 623, and adds 
a new section at IDAPA 58.01.01.624. These revisions were submitted by 
the IDEQ after determining that the administrative requirements under 
the existing rules for certain types of small burns (spot burns, broken 
bale burns and propane flaming) were unnecessarily burdensome. 
According to the July 13, 2011, SIP submittal, these revisions were 
made to streamline the administrative requirements for these types of 
small fuel loading and small acreage burns.
    In the July 13, 2011, submittal, the IDEQ described the process for 
making the rule changes and noted that the changes were drafted in 
conjunction with a negotiating committee made up of persons having an 
interest in the development of this rule.\2\ Participants included 
growers desiring to burn crop residue, members of the regulated 
community who may be subject to Idaho's air quality rules, special 
interest groups, the Idaho State Department of Agriculture, tribes, 
public officials, and members of the public who have an interest in the 
regulation of air emissions. The IDEQ also explained that a change to 
the statute was necessary relating to the fee requirement for propane 
flaming. The resulting temporary rule was adopted by the IDEQ Board of 
Environmental Quality on April 25, 2011 and became effective on July 1, 
2011.
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    \2\ Idaho's negotiated rulemaking process is an informal process 
open to the public and intended to improve the substance 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.
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II. Summary of Rule Changes

    The rule changes in the July 13, 2011, submittal include new IDAPA 
58.01.01.624, which relates to spot burns, baled agricultural residue 
burns and propane flaming, and revisions to IDAPA 58.01.01.617 through 
623, which clarify existing disposal of crop residue provisions and 
update references to new IDAPA 58.01.01.624. The EPA prepared a 
Technical Support Document (TSD) with detailed description of the 
specific provisions in the SIP submittal. The TSD is available for 
review as part of the docket for this action.

Spot Burns and Baled Agricultural Residue Burns

    The new provisions for spot burns and baled agricultural residue 
burns in IDAPA 58.01.01.624 streamline the procedure and provide for 
the issuance of an annual permit to cover spot burns and baled 
agricultural residue burns proposed by an applicant for a given 
calendar year. Under the prior rule, a separate approval was required 
for each and every individual spot or bale burn. The new rule still 
regulates these types of burns but simplifies the administrative 
process. Specifically, under the new rule, to apply for an annual 
permit to conduct spot burning and baled agricultural residue burning, 
the applicant must provide registration information identifying the 
proposed burn areas and submit a fee. The permit issued by the IDEQ is 
valid for the calendar year in which it is issued, covers the proposed 
burn areas provided in the applicant's registration information, and is 
good for a cumulative total of no more than one acre per day and no 
more than ten acres per year. The person intending to burn must meet 
all applicable permit provisions, including provisions relating to 
preventing travel hazards, protecting sensitive populations, and 
recordkeeping. Under IDAPA 58.01.01.624.04.c, spot burns and baled 
agricultural residue burns may not be conducted except on IDEQ-
designated burn days, which for these types of burns may include 
weekends and holidays.

Propane Flaming

    The new provisions for propane flaming in IDAPA 58.01.01.624 
provide that a person intending to conduct propane flaming is deemed to 
have a permit if the definition of propane flaming is met and the 
person complies with all applicable provisions. Under the prior rule, a 
separate approval was required for each and every burn using propane 
flaming. The new rule still regulates propane flaming but simplifies 
the administrative process by deeming persons conducting propane 
flaming to have a permit by rule if they comply with applicable 
provisions in IDAPA 624.04 and 624.05. The applicable provisions 
include general crop residue disposal provisions and provisions 
relating to preventing travel hazards, protecting sensitive 
populations, and recordkeeping. Under IDAPA 58.01.01.624.04.c, propane 
flaming may not be conducted except on IDEQ-designated burn days, which 
for propane flaming may include weekends and holidays.

Revisions to IDAPA 58.01.01.117 Through 623

    The revisions to IDAPA 58.01.01.117 through 623 consist of minor 
changes that update cross references to new IDAPA 58.01.01.624 and 
clarify certain administrative provisions.

III. Evaluation of Rule Changes

    The crop residue disposal provisions in the federally-approved SIP 
for Idaho may be revised provided the State meets

[[Page 2361]]

the requirements of CAA section 110. To address section 110, the EPA 
reviewed each changed provision in the crop residue disposal rules in 
its July 13, 2011, submittal to determine whether or not the changes 
would interfere with any applicable requirement concerning attainment 
and reasonable further progress or any other applicable requirement of 
this Act. As further discussed in the TSD, the changes to existing 
IDAPA 58.01.01.117 to 623 consisted of minor changes, such as updated 
cross references and clarifying administrative information (e.g, 
specifying the Web site address and toll free number). Because of the 
nature of these revisions, these changes do not interfere with any 
applicable requirement concerning attainment and reasonable further 
progress, or any other applicable requirement of this Act.
    The new provisions at IDAPA 58.01.01.624 that simplify the 
administrative process for spot burns, baled agricultural residue 
burns, and propane flaming also do not interfere with any applicable 
requirement concerning attainment and reasonable further progress, or 
any other applicable requirement of this Act. Spot burning, baled 
agricultural residue burning, and propane flaming are already allowed 
under the existing federally-approved crop residue disposal rule and 
burning continues to be allowed only on IDEQ-designated burn days. 
Moreover, the permittee is still subject to the applicable general 
provisions for the burning of crop residue. See the TSD for more 
information about our review and analysis of the July 13, 2011, SIP 
submittal.
    Based on the EPA's review and evaluation of the July 13, 2011, SIP 
submittal, the burn determination provisions in IDAPA 58.01.01.621, and 
the IDEQ's analysis of its rule changes in the July 13, 2011, SIP 
submittal, the EPA concludes that Idaho's SIP revision submitted on 
July 13, 2011, meets the requirements of Clean Air Act section 110.

IV. Proposed Action

    Consistent with the discussion above and based on our review and 
analysis of revised IDAPA 58.01.01.617, 618, 620, 622, and 623 and new 
section IDAPA 58.01.01.624, the EPA proposes approval of the revisions 
in Idaho's July 13, 2011, SIP submittal.

V. 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.\3\ 
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).
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    \3\ ``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.
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VI. 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 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.

List of Subjects in 40 CFR Part 52

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

    Dated: January 3, 2013.
Dennis J. McLerran,
Regional Administrator, Region 10.
[FR Doc. 2013-00428 Filed 1-10-13; 8:45 am]
BILLING CODE 6560-50-P
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