[Federal Register Volume 70, Number 131 (Monday, July 11, 2005)]
[Rules and Regulations]
[Pages 39658-39662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13557]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Docket  ID-03-003; FRL-7936-1]


Approval and Promulgation of Air Quality Implementation Plan; 
Idaho

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is approving revisions related to open burning and 
crop residue disposal requirements in Idaho's State Implementation Plan 
(SIP). The Idaho Department of Environmental Quality (IDEQ) submitted 
these revisions to EPA for inclusion in the Idaho SIP on May 22, 2003. 
These revisions were submitted for the purposes of clarifying existing 
regulations and complying with section 110 and part D of the Clean Air 
Act.

DATES: This action is effective on August 10, 2005.

ADDRESSES: Copies of the State's SIP revision and other information 
supporting this action are available for inspection at EPA Region 10, 
Office of Air, Waste, and Toxics (AWT-107), 1200 Sixth Avenue, Seattle, 
Washington 98101.

FOR FURTHER INFORMATION CONTACT: Donna Deneen, EPA Region 10, Office of 
Air, Waste, and Toxics (AWT-107), 1200 Sixth Avenue, Seattle, 
Washington 98101, or at (206) 553-6706.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background Information
    1. What revisions to the Idaho SIP are we approving?
    2. What comments did we receive on our proposal to approve these 
revisions?
II. Summary of Final Action
III. Statutory and Executive Orders Review

I. Background Information

1. What Revisions to the Idaho SIP Are We Approving?

    We are approving revisions to the portion of Idaho's State 
Implementation Plan relating to open burning found at IDAPA 
58.01.01.600 through 617. These revisions were submitted to EPA by the 
Director of the Idaho Department of Environmental Quality on May 22, 
2003. EPA proposed to approve these revisions on June 7, 2004. 69 FR 
31778. These revisions (1) add a section in Idaho's open burning 
regulations to clarify that crop residue disposal is an allowable 
category of open burning, (2) add a section in Idaho's regulations to 
clarify that IDEQ has the authority to require immediate abatement of 
open

[[Page 39659]]

burning in cases of emergency requiring immediate action to protect 
human health or safety, and (3) remove section 58.01.01.604--
Alternatives to Open Burning, from Idaho's rules. The revisions also 
include several editorial changes to IDAPA 58.01.01.600 through 617.

2. What Comments Did We Receive on Our Proposal To Approve These 
Revisions?

    We received one comment letter on the June 7, 2004 proposal. This 
comment letter was from Safe Air for Everyone (SAFE) and was sent on 
behalf of that organization, the American Lung Association of Idaho/
Nevada, and the Idaho Conservation League. In general, the letter 
opposed the proposed SIP revision. The comments and our response are 
summarized as follows:
    Comment: The commenter indicates there is evidence of severe health 
impacts from grass residue burning and provides documentation in 
support of that claim. The information includes copies of an extensive 
declaration and transcripts from the preliminary injunction hearing for 
Safe Air for Everyone v. Wayne Meyer, et al., that took place between 
July 10-12, 2002.
    Response: EPA is aware of and continues to be concerned about the 
health and welfare impacts associated with crop residue burning in 
Idaho and is working with the State Department of Agriculture and the 
Idaho Department of Environmental Quality to improve Idaho's crop 
residue burning and smoke management program. Approval of the State's 
revisions to IDAPA 58.01.01.600 through 617 does not reflect a change 
in EPA's concern. Rather, EPA believes that the revisions are 
approvable because they clarify the existing provisions under Idaho law 
that allow the State to regulate this activity.
    Comment: The commenter contends that the existing SIP prohibits the 
open burning of crop residue and that the State's claim that the 
revision is simply a clarification of the existing SIP is flawed. The 
commenter believes that approval of IDAPA 58.01.01.617 would be a 
drastic relaxation and a modification of a control requirement in 
effect before November 15, 1990, and that the revision is therefore 
prohibited under section 193 of the Clean Air Act because the State did 
not comply with the requirements of that provision. The commenter also 
argues that the argument that this is not a SIP relaxation would lead 
to adverse impacts such as allowing crop residue burning during air 
pollution episodes and would even allow pathological or hazardous 
wastes to be burned.
    Response: The specific revision at IDAPA 58.01.01.01.617 being 
approved in this action provides: ``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 Smoke Management and Crop Residue 
Disposal Act, Chapter 48, Title 22, Idaho Code, and the rules 
promulgated pursuant thereto, IDAPA 02.06.16, `Crop Residue Disposal 
Rules.' '' EPA does not believe that Idaho's existing SIP when viewed 
in its entirety prohibits the burning of crop residue. As discussed 
below, the addition of IDAPA 58.01.01.617 is not a change or 
modification of a control requirement in effect before November 15, 
1990.
    As explained in the proposal, the State has consistently maintained 
that burning crop residue was never meant to be prohibited by the open 
burning rules. Provisions allowing the burning of crop residue were 
initially approved into the Idaho SIP on July 28, 1982. 47 FR 32534. 
(Section 1-1153.08 of these rules specifically identifies agricultural 
burning as a category of allowable burning.) As discussed more fully 
below, Idaho subsequently passed 1985 legislation recognizing burning 
of agricultural fields and, at the same time, altering the State's 
approach to field burning regulation. Thereafter, the Idaho Department 
of Health and Welfare submitted rules reflecting the approach of the 
1985 legislation, and EPA approved them on July 23, 1993. 58 FR 39445. 
(See also docket for summary of state regulatory and EPA approval 
timeline regarding agricultural burning.) EPA recognizes that the rule 
language approved on July 23, 1993 reflecting the 1985 approach, does 
not, on its face, appear to identify crop residue as a category of 
allowed burning. However, an examination of the State's overall 
approach to field burning demonstrates that the State has consistently 
allowed the practice and never intended to prohibit it. It would 
therefore be unreasonable to conclude that the State intended to ban 
the burning of crop residue in any of its SIP submissions.
    In reaching this conclusion EPA considered such things as the 
legislative history of Idaho's provisions related to agricultural 
burning and smoke management (discussed below); the inclusion of field 
burning in the emissions inventories submitted for the State including 
the Statewide emission inventory for 1980; Memorandums of Understanding 
(MOU) to which Idaho is a party describing agricultural burning 
procedures; the 1994 Kootenai County Interim Air Quality Plan 
discussing impacts from field burning; correspondence; annual field 
burning reports; smoke management planning efforts and reports, and PM-
10 SIP submittals (e.g., ``PM-10 Air Quality Improvement Plan for 
Sandpoint'' (August, 1996) and ``Northern Ada County PM-10 SIP 
Maintenance Plan and Redesignation Request'' (September 25, 2002).)
    Idaho's legislative history, in particular, demonstrates that the 
State has consistently allowed the practice of crop residue burning. 
The State's 1985 Smoke Management Act specifically found that current 
knowledge supports the practice of burning grass seed fields. ``The 
legislature finds that current knowledge and technology support the 
practice of burning grass seed fields to control disease, weeds and 
pests and the practice of burning cereal crop residues where soil has 
inadequate decomposition capacity. It is the intent of the legislature 
to promote those agricultural activities currently relying on field 
burning and minimize any potential effects on air quality. It is 
further the intent of the legislature that the department shall not 
promulgate rules and regulations relating to a smoke management plan, 
but rather that the department cooperate with the agricultural 
community in establishing a voluntary smoke management program.'' Idaho 
Code 39-2301 (1985). Although this legislation was not specifically 
submitted to EPA as a SIP revision, it was included in a regulatory log 
as part of the rules submittal package approved on July 23, 1993 and 
was referenced in other SIP submittals. The 1996 PM-10 Air Quality 
Improvement Plan for Sandpoint, for instance, refers to the 1985 Smoke 
Management Act by explaining that ``agricultural burning in Kootenai 
and Benewah Counties is specifically addressed by Idaho Code 39-2301 
which establishes a voluntary smoke management program to minimize the 
effects on air quality. The State law establishes a smoke management 
advisory board, sets a fee system and establishes the basic framework 
for a voluntary field burning program * * * .'' This reference to 
agricultural burning in the Sandpoint SIP submittal underscores the 
State's consistent view that even after approval of Idaho's open 
burning revisions in 1993, crop residue burning was not prohibited 
under the open burning provisions. The Sandpoint SIP was approved by 
EPA on June 26, 2002. 67 FR 43006.
    More recently, the Idaho legislature again found that ``the current 
knowledge and technology support the practice of burning crop residue 
to control disease, weeds, pests and to enhance crop

[[Page 39660]]

rotations.'' Idaho Code Chapter 48 Smoke Management and Crop Residue 
Disposal, 22-4801 (1999). The Act specifically provides that ``The open 
burning of crop residue grown in agricultural fields shall be an 
allowable form of open burning when the provisions of this chapter and 
any rules promulgated pursuant thereto and the environmental protection 
and health act and any rules promulgated thereto are met and when no 
other alternatives to burning are available * * *'' Idaho Code section 
22-4803(1) (1999). The same language remains in the 2003 Smoke 
Management and Crop Residue Disposal Act. Idaho Code section 22-4801 
(2003). Idaho's Crop Residue Disposal Rules are located at IDAPA 
02.06.16. Thus, EPA believes that the State has consistently allowed 
the practice and never intended to prohibit it in its SIP. EPA has 
determined that the revision to include 58.01.01.617, is therefore 
consistent with the State's historical approach.\1\
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    \1\ The commenter references a 1996 letter from the Idaho 
Attorney General's Office that indicated that field burning 
qualifies under the regulations as ``prescribed burning'' and thus 
is exempt from the prohibition on open burning. On its face this 
1996 letter states that it does not constitute an Official Attorney 
General Opinion. EPA agrees with the commenter that the crop residue 
is not ``wildlands fuel'' and therefore disagrees with the analysis 
in the 1996 letter. A more recent 2004 letter from the Idaho 
Attorney General's Office indicated that while the prescribed 
burning category does not explicitly include crop residue disposal 
burning, the new section 617 was added to clarify that field burning 
is allowed and that the addition clarifies rather than relaxes the 
SIP. EPA agrees with the analysis in this letter.
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    Review of EPA's past involvement in the issue also indicates that 
EPA understood agricultural burning to be allowed in Idaho and that the 
SIP does not prohibit it. EPA's acknowledgment that field burning is 
not prohibited has been documented in numerous ways over the years 
including, for example: EPA's response to PM10 SIP submittals for 
specific areas in Idaho (referenced above); EPA's February 2005 
testimony before the Idaho State legislature; correspondence such as 
the February 18, 2004 letter from EPA to ISDA and EPA's other written 
annual assessments of Idaho's Agricultural Field Burning Program; EPA's 
participation in burn call decisions; EPA's participation in smoke 
management activities, such as those associated with the ISDA Crop 
Residue Disposal Advisory Committee; and Memorandums of Agreement or 
Memorandums of Understanding, such as the Memorandum of Agreement with 
the Nez Perce Tribe, IDEQ, ISDA, and EPA relating to Agricultural Smoke 
Management in the Clearwater Airshed, signed by EPA on October 18, 
2002.
    In sum, EPA believes that approving the proposed SIP revision does 
not change or alter the existing SIP in Idaho which does not prohibit 
burning of crop residue. Rather this revision merely recognizes and 
clarifies that the burning of crop residue is not prohibited under the 
SIP so long as the burning is conducted in accordance with the Crop 
Residue Disposal Act and its regulations. It is EPA's position that the 
addition of IDAPA 58.01.01.617 is not a change or modification of a 
control requirement in effect before November 15, 1990. Therefore, the 
requirements of section 193 of the Act are satisfied.
    Finally, commenters' concern regarding adverse impacts resulting 
from crop residue burning during air pollution episodes is unfounded 
because the SIP would prevent burning in that instance. Additionally, 
commenters' concern regarding adverse impacts from burning pathological 
or hazardous wastes is unfounded because the SIP would prevent burning 
crop residue for that purpose.
    Comment: The SIP provision allowing for emergency action to protect 
public health and safety is illusory and the State does not have the 
ability or resources to enforce it.
    Response: The provision we are approving today, IDAPA 
58.01.01.603.03, provides ``In accordance with Title 39, Chapter I, 
Idaho Code, the Department has the authority to require immediate 
abatement of any open burning in cases of emergency requiring immediate 
action to protect human health or safety.'' This provision simply makes 
clear that in accordance with Title 30, Chapter 1, Idaho Code the 
Department has the authority to require immediate abatement of open 
burning in cases requiring immediate action. Specifically, the State 
emergency authority at Idaho Code section 39-113 provides for the 
issuance of an order if the director finds that a generalized condition 
of air pollution exists and that it creates an imminent and substantial 
endangerment to the public health or welfare constituting an emergency 
requiring immediate action to protect human health or safety. This 
emergency authority provision at Idaho Code section 39-113 is part of 
the SIP and the provision at IDAPA 58.01.01.603.03 approved in this 
action strengthens the existing SIP authority.
    Comment: The commenter maintains that there is no demonstration 
under CAA section 110(l) that the proposed revision would not interfere 
with the attainment and maintenance of the NAAQS, and contends the 
revision would interfere with attainment and maintenance.
    Response: The proposed SIP revision is merely a clarification of 
the existing SIP and does not change or otherwise relax an existing 
control measure and therefore will not interfere with any applicable 
requirements concerning attainment and reasonable further progress or 
other applicable requirement of the Act. EPA believes that the 
requirement of section 110(l) is satisfied.
    Comment: The proposed SIP revision failed to provide for 
consultation under CAA section 110(a)(2)(M) with local political 
subdivisions like Bonner County.
    Response: Bonner County and other local political subdivisions were 
provided the opportunity to comment on the proposed SIP revision 
through the announcement of a public hearing in the State's Idaho 
Administrative Bulletin. IDEQ held subsequently a public hearing on 
September 11, 2002.
    Comment: The proposal to allow crop residue burning is inconsistent 
with air toxic requirements.
    Response: Section 112 of the Clean Air Act addresses air toxic 
requirements. Agricultural facilities such as those that engage in crop 
residue burning are not one of the listed categories of major or area 
sources of hazardous air pollutant emissions regulated under section 
112 of the Clean Air Act. As a result, there are no EPA emission 
standards under section 112 regulating this activity. Therefore, it is 
currently impossible for crop residue burning to interfere with an 
applicable requirement under section 112. We encourage the commenter to 
work with the State to better address any air toxics associated with 
crop residue burning.
    Comment: The removal of the alternatives requirement in section 
58.01.01.604 is ``unseemly'' and transforms the decision into one in 
which all that matters is the grower's profits.
    Response: EPA agrees that using alternatives to open burning should 
be encouraged. To that end, EPA continues to support the research and 
development of alternatives to burning. However, the alternatives 
provision in IDAPA section 58.01.01.604 is discretionary and the State 
need not exercise it. Moreover, the State has not, to date, chosen to 
exercise it. Therefore EPA concludes that removal of this provision 
does not constitute a relaxation because it is not comparable to the 
removal of a control measure from a SIP. EPA notes that Idaho has 
another mechanism to evaluate the use of crop residue burning. Under 
the 2003 Smoke

[[Page 39661]]

Management and Crop Residue Disposal Act, open burning of crop residue 
is allowed only after the Director of Agriculture determines there are 
no economically viable alternatives to burning. Idaho Code section 22-
4803. Thus, removing the alternatives requirement in IDAPA Section 
58.01.01.604 does not change the need for the Director to make an 
affirmative, defensible decision that there are no economically viable 
alternatives.
    Comment: There is no showing that the revision will not adversely 
effect reasonable progress towards visibility improvement in Class I 
areas or that, due to effects from crop residue burning in Canada, the 
SIP is consistent with United States' obligations under international 
laws and treaties.
    Response: As explained above, the proposed SIP revision does not 
change or otherwise relax the existing crop residue disposal program or 
the existing practice in the State of Idaho. Because the program 
remains unchanged, approval of the SIP revision will not adversely 
affect reasonable progress towards visibility improvement in Class I 
areas or conflict with the United States' obligations under 
international laws and treaties.
    Comment: The commenter requests that EPA hold a public hearing on 
the proposed revision, preferably in Northern Idaho.
    Response: The comment received was thorough, fully documented and 
clearly articulated the concerns of the commenters. EPA has determined 
that a public hearing is not necessary.

II. Summary of Final Action

    EPA is approving all of the revisions to the Rules for the Control 
of Air Pollution in Idaho, section 58.01.01.600 through section 
58.01.01.617, as submitted by IDEQ on May 22, 2003.

III. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, I certify that this rule will not have a significant 
economic impact on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule 
approves pre-existing requirements under state law and does not impose 
any additional enforceable duty beyond that required by state law, it 
does not contain any unfunded mandate or significantly or uniquely 
affect small governments, as described in the Unfunded Mandates Reform 
Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit 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 United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 August 10, 2005. 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, Particulate matter, Reporting 
and recordkeeping requirements.

    Dated: June 29, 2005.
Daniel D. Opalski,
Acting Regional Administrator, Region 10.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart N--Idaho

0
2. In Sec.  52.670(c), the table in paragraph (c) is amended by 
revising the entries for 600 through 603, removing the entry for 604, 
revising the entries for 606 through 610, 612, 613, 615, 616 and adding 
the entry for 617 after existing entry 616 to read as follows:


Sec.  52.670  Identification of plan.

* * * * *
    (c) * * *

[[Page 39662]]



    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)
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                            58.01.01--Rules for the Control of Air Pollution in Idaho
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                                                           State
     State  citation             Title/subject        effective date       EPA approval date       Explanations
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
600.....................  Rules for Control of Open          3/21/03  07/11/05 [Insert page
                           Burning.                                    number where the document
                                                                       begins].
601.....................  Fire Permits, Hazardous            3/21/03  07/11/05 [Insert page
                           Materials and Liability.                    number where the document
                                                                       begins].
602.....................  Nonpreemption of Other             3/21/03  07/11/05 [Insert page
                           Jurisdictions.                              number where the document
                                                                       begins].
603.....................  General Restrictions......         3/21/03  07/11/05 [Insert page
                                                              5/1/94   number where the document
                                                                       begins].
606.....................  Categories of Allowable            3/21/03  07/11/05 [Insert page
                           Burning.                                    number where the document
                                                                       begins].
607.....................  Recreational and Warming           3/21/03  07/11/05 [Insert page
                           Fires.                                      number where the document
                                                                       begins].
608.....................  Weed Control Fires........          5/1/94  07/11/05 [Insert page
                                                                       number where the document
                                                                       begins].
609.....................  Training Fires............         3/21/03  07/11/05 [Insert page
                                                                       number where the document
                                                                       begins].
610.....................  Industrial Flares.........         3/21/03  07/11/05 [Insert page
                                                                       number where the document
                                                                       begins].
                                                  * * * * * * *
612.....................  Landfill Disposal Site             3/21/03  07/11/05 [Insert page
                           Fires.                                      number where the document
                                                                       begins].
613.....................  Orchard Fires.............         3/21/03  07/11/05 [Insert page
                                                              5/1/94   number where the document
                                                                       begins].
                                                  * * * * * * *
615.....................  Dangerous Material Fires..         3/21/03  07/11/05 [Insert page
                                                                       number where the document
                                                                       begins].
616.....................  Infectious Waste Burning..         3/21/03  07/11/05 [Insert page
                                                                       number where the document
                                                                       begins].
617.....................  Crop Residue Disposal.....         3/21/03  07/11/05 [Insert page
                                                                       number where the document
                                                                       begins].
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[FR Doc. 05-13557 Filed 7-8-05; 8:45 am]
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