[Federal Register Volume 77, Number 118 (Tuesday, June 19, 2012)]
[Proposed Rules]
[Pages 36443-36447]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14943]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2007-1034; FRL-9689-1]


Disapproval and Promulgation of Air Quality Implementation Plans; 
State of Utah; Revisions To Open Burning Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to disapprove a State Implementation Plan 
(SIP) revision submitted by the State of Utah on December 10, 1999. 
This revision to R307-202 Emission Standards: General Burning 
authorizes the State to extend the time period for open burning. EPA is 
proposing to disapprove the submitted revision because it does not meet 
the requirements of section 110(l) of the Clean Air Act (CAA). This 
action is being taken under section 110 of the CAA.

DATES: Comments must be received on or before July 19, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2007-1034, by one of the following methods:
     http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     Email: [email protected].
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER

[[Page 36444]]

INFORMATION CONTACT if you are faxing comments).
     Mail: Carl Daly, Director, Air Program, U.S. Environmental 
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129.
     Hand Delivery: Carl Daly, Director, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop, Denver, Colorado 80202-1129. Such deliveries are only accepted 
Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding Federal 
holidays. Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2007-1034. 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 email. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means 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 EPA, without 
going through http://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, 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 EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, 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. For additional instructions on submitting 
comments, go to Section I. General Information of the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly-available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop, Denver, Colorado 80202-1129. EPA requests that if at all 
possible, you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through Friday, 8:00 a.m. 
to 4:00 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Crystal Freeman, Air Program, U.S. 
Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 
Wynkoop, Denver, Colorado 80202-1129, (303) 312-6602, 
[email protected].

SUPPLEMENTARY INFORMATION: 

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The initials AQS mean or refer to Air Quality System.
    (ii) The words or initials Act or CAA mean or refer to the Clean 
Air Act, unless the context indicates otherwise.
    (iii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iv) The initials NAAQS mean or refer to the National Ambient Air 
Quality Standards.
    (v) The initials NOX mean or refer to nitrogen oxides.
    (vi) The initials PM2.5 mean or refer to particulate matter with an 
aerodynamic diameter of less than 2.5 micrometers (fine particulate 
matter).
    (vii) The initials PSD mean or refer to prevention of significant 
deterioration.
    (viii) The initials SIP mean or refer to State Implementation Plan.
    (ix) The words Utah or State mean the State of Utah.

Table of Contents

I. General Information
II. Background
III. What is the State process to submit these materials to EPA?
IV. EPA's Review and Technical Information
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. General Information

    1. Submitting CBI. Do not submit CBI to EPA through http://www.regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline 
identified.

II. Background

    On December 10, 1999, the State of Utah submitted a SIP revision to 
Rule R307-202 Emission Standards: General Burning. This rule contains 
the following provisions: definitions and exclusions, community waste 
disposal, general prohibitions, permissible burning--without permit, 
permissible burning with permit, and special conditions.
    The proposed revision is found within the `permissible burning with 
permit' in section R307-202-5(3)(e)(i). The revision extends the time 
period during which open burning could be authorized. The current 
burning period in the rule is from March 30 to May 30, the revision 
would extend the beginning of the burning period to March 1. This would 
allow an additional 30 days to the open burning period. The revision to

[[Page 36445]]

the rule is based on a request from the Washington County Mayors 
Association to change the beginning date to accommodate areas of the 
State that were dry enough to burn earlier in the year.

III. What is the State process to submit these materials to EPA?

    Section 110(k) of the CAA addresses EPA's rulemaking action on SIP 
submissions by states. The CAA requires states to observe certain 
procedural requirements in developing SIP revisions for submittal to 
EPA. Section 110(a)(2) of the CAA requires that each SIP revision be 
adopted after reasonable notice and public hearing. This must occur 
prior to the revision being submitted by a state to EPA.
    The State of Utah's Department of Environmental Quality, Air 
Quality Board held public hearings to amend Rule R307-202 Emission 
Standards: General Burning on June 3, 1999, and also on June 30, 1999, 
when the revision was adopted. On December 10, 1999, Utah submitted a 
SIP revision to R307-202-5 to extend the burning period.
    EPA has reviewed the submittal from the State of Utah and has 
determined that the State met the requirements for reasonable notice 
and public hearing under section 110(a)(2) of the CAA. The SIP 
submittal from Utah became complete by operation of law six months 
after the submission date.

IV. EPA's Review and Technical Information

    EPA is proposing to disapprove Utah's SIP revision submitted on 
December 10, 1999. Any submittal for a SIP revision must meet section 
110(l) of the CAA. Section 110(l) of the Act states that EPA shall not 
approve a revision of a plan if the revision would interfere with any 
applicable requirement concerning attainment and reasonable further 
progress (as defined in Section 171 of the CAA), or any other 
applicable requirement of the Act. An analysis should have been 
conducted by the State and included in the submittal showing what 
effect the relaxation would have on emissions of criteria pollutants. 
Since Utah did not provide a section 110(l) analysis, EPA lacks 
sufficient information to determine whether the proposed SIP relaxation 
would not interfere with any applicable requirement concerning 
attainment and maintenance of the National Ambient Air Quality 
Standards (NAAQS), Prevention of Significant Deterioration (PSD) 
increment, or any other requirement of the Act.
    EPA reviewed data from the Air Quality System (AQS) Raw Data 
Reports for PM2.5 violations in the entire State of Utah for 
the month of March from 1999 to present. These reports can be found in 
the docket as supporting and related materials. The PM2.5 
24-hour NAAQS is 35 [mu]g/m\3\ for which the counties of Salt Lake, 
Utah, Davis and parts of Box Elder, Weber, Tooele and Cache are 
designated nonattainment (74 FR 58688, November 13, 2009). Based on our 
review, Cache County, specifically the City of Logan, showed a total of 
fifteen violations of the PM2.5 standard over the years: 
2001, 2004, 2005, and 2007. The AQS site ID that showed the violations 
in the years above was 49-005-0004. For the year 2001, the 
PM2.5 violation was recorded on March 2 with a concentration 
of 37.5 [mu]g/m\3\. In 2004 there were five violations on March 8, 9, 
10, 12, and 13, with concentrations of 35.5 [mu]g/m\3\, 53.4 [mu]g/
m\3\, 52.9 [mu]g/m\3\, 41.9 [mu]g/m\3\, and 52.3 [mu]g/m\3\, 
respectively. For the following year of 2005, there were seven 
violations on the dates of March 1, 2, 4, 7, 8, 10, and 11, with 
concentrations of 54.5 [mu]g/m\3\, 36.6 [mu]g/m\3\, 68.4 [mu]g/m\3\, 
49.6 [mu]g/m\3\, 71.0 [mu]g/m\3\, 62.0 [mu]g/m\3\, and 44.6 [mu]g/m\3\, 
respectively. The last year that this monitor showed violations was in 
2007, on March 6 and 7, with concentrations of 46 [mu]g/m\3\ and 43 
[mu]g/m\3\, respectively. In Salt Lake County, the North Salt Lake City 
monitor also showed an exceedance in 2007, on March 6, with a 
concentration of 38 [mu]g/m\3\. On March 30, 2010, there were ten 
exceedances that occurred in four counties: Davis, Salt Lake, Utah, and 
Tooele, which the State has flagged as exceptional events. The 
Bountiful monitor in Davis County and the Tooele City monitor in Tooele 
County recorded a concentration of 42 [mu]g/m\3\ and 57 [mu]g/m\3\, 
respectively. Four monitors in Salt Lake County: Cottonwood, Magna, 
Hawthorne, and Rose Park, showed concentrations of: 56 [mu]g/m\3\, 67 
[mu]g/m\3\, 50 [mu]g/m\3\, and 65 [mu]g/m\3\, respectively. 
Additionally, four monitors in Utah County: North Provo, Lindon, 
Highland, and Spanish Fork, showed concentrations of 53 [mu]g/m\3\, 56 
[mu]g/m\3\, 61 [mu]g/m\3\, and 48 [mu]g/m\3\, respectively.
    Based on our analysis of the AQS data above, EPA finds that the 
relaxation of the open burning rule could contribute to further 
degradation of air quality within the State of Utah and especially in 
the PM2.5 nonattainment areas because violations of the 
PM2.5 standard have been recorded during periods covered by 
the proposed extension of the open burning period. In the absence of a 
section 110(l) analysis or demonstration by the State of Utah showing 
that extending the burning period would not cause a PM2.5 
violation, EPA cannot determine that this revision would not interfere 
with attainment and maintenance of the NAAQS. Therefore, EPA is 
proposing to disapprove this revision to R307-202 Emission Standards: 
General Burning.

V. Proposed Action

    EPA is proposing to disapprove the SIP revision to R307-202 
Emission Standards: General Burning submitted by the State on December 
10, 1999. Without a section 110(l) analysis or demonstration, EPA finds 
that the revision relaxes the control on open burning and could 
potentially interfere with the attainment and maintenance of the NAAQS. 
EPA's review of the AQS data for Cache, Salt Lake, Davis, Utah, and 
Tooele Counties have shown violations of the PM2.5 standard 
during the proposed extension of the open burning period.

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, EPA's role is to approve or 
disapprove state choices, depending on whether they meet the criteria 
of the Clean Air Act. With this proposed action EPA is merely 
disapproving a state law as not meeting Federal requirements, and is 
not imposing additional requirements beyond those imposed by state law.

A. Executive Order 12866: Regulatory Planning and Review

    Because the proposed disapproval only applies to a date change for 
Utah's General Burning window, this proposed action is not a 
``significant regulatory action'' under the terms of Executive Order 
12866 (58 FR 51735, October 4, 1993) and is therefore not subject to 
review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 
2011).

B. Paperwork Reduction Act

    This proposed action does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq. Burden is defined at 5 CFR 1320.3(b). The proposed 
disapproval only applies to a date change for Utah's General Burning 
window.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare

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a regulatory flexibility analysis of any rule subject to notice and 
comment rulemaking requirements under the Administrative Procedure Act 
or any other statute unless the agency certifies that the rule will not 
have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves regulatory burden, or otherwise has a positive economic effect 
on all of the small entities subject to the rule.
    EPA's proposal consists of a proposed disapproval of Utah's General 
Burning rule submission. The revision would extend the General Burning 
window an extra month, which requires a CAA section 110(l) analysis to 
show no relaxation of the rule. Since Utah did not submit a section 
110(l) analysis for this revision EPA is proposing disapproval. The 
proposed disapproval of the SIP, if finalized, merely disapproves the 
state law as not meeting federal requirements and does not impose any 
additional requirements.

D. Unfunded Mandates Reform Act (UMRA)

    This action 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);
    Under Title II of UMRA, EPA has determined that this proposed rule 
does not contain a federal mandate that may result in expenditures that 
exceed the inflation-adjusted UMRA threshold of $100 million by State, 
local, or Tribal governments or the private sector in any one year. In 
addition, this proposed rule does not contain a significant federal 
intergovernmental mandate as described by section 203 of UMRA nor does 
it contain any regulatory requirements that might significantly or 
uniquely affect small governments.

E. Executive Order 13132: Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects on the State, on 
the relationship between the national government and the State, or on 
the distribution of power and responsibilities among the various levels 
of government, as specified in Executive Order 13132, because it merely 
addresses the State not fully meeting its obligation under section 
110(l) of the CAA. Thus, Executive Order 13132 does not apply to this 
action. In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled Consultation and Coordination with 
Indian Tribal Governments (65 FR 67249, November 9, 2000), requires EPA 
to develop an accountable process to ensure ``meaningful and timely 
input by tribal officials in the development of regulatory policies 
that have tribal implications.'' This proposed rule does not have 
tribal implications, as specified in Executive Order 13175. It will not 
have substantial direct effects on tribal governments. Thus, Executive 
Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045: Protection of Children from Environmental 
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to 
any rule that: (1) is determined to be economically significant as 
defined under Executive Order 12866; and (2) concerns an environmental 
health or safety risk that we have reason to believe may have a 
disproportionate effect on children. EPA interprets EO 13045 as 
applying only to those regulatory actions that concern health or safety 
risks, such that the analysis required under section 5-501 of the EO 
has the potential to influence the regulation. This action is not 
subject to EO 13045 because it implements specific standards 
established by Congress in statutes. However, to the extent this 
proposed rule is disapproving a possible relaxation to Utah's General 
Burning rule, it will have a beneficial effect on children's health by 
not allowing additional air pollution.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires federal agencies to evaluate existing 
technical standards when developing a new

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regulation. To comply with NTTAA, EPA must consider and use ``voluntary 
consensus standards'' (VCS) if available and applicable when developing 
programs and policies unless doing so would be inconsistent with 
applicable law or otherwise impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994), establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    We have determined that this proposed rule, if finalized, will not 
have disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it disapproves a 
possible relaxation of Utah's rule where increases in emissions are 
possible.
    In addition, this proposed action does not have tribal implications 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP being disapproved would not apply in Indian country 
located in the state, and it would not impose substantial direct costs 
on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 20, 2012. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2) of the 
CAA.)

List of Subjects in 40 CFR Part 52

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

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

    Dated: June 6, 2012.
James B. Martin,
Regional Administrator, Region 8.
[FR Doc. 2012-14943 Filed 6-18-12; 8:45 am]
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