
[Federal Register Volume 77, Number 186 (Tuesday, September 25, 2012)]
[Rules and Regulations]
[Pages 58966-58968]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-23516]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2007-1034; FRL-9732-1]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is disapproving 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 disapproving 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: This final rule is effective October 25, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2007-1034. All documents in the docket are listed in 
the 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 www.regulations.gov or in hard copy at the Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, 
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, 
freeman.crystal@epa.gov.

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 SIP mean or refer to State Implementation Plan.
    (vi) The words Utah or State mean the State of Utah.

Table of Contents

I. Background
II. Response to Comments
III. Section 110(l) of the CAA
IV. Final Action
V. Statutory and Executive Order Reviews

I. 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 
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.
    In our analysis of ambient air quality monitoring data, as 
described in our June 19, 2012 (77 FR 36443) proposed rule, EPA found 
that the relaxation of the open burning rule could contribute to 
further degradation of air quality within the State of Utah. 
Specifically, the analysis demonstrates that further degradation of air 
quality could occur in Utah's PM2.5 nonattainment areas 
where

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violations of the PM2.5 standard have been recorded during 
periods covered by the State's 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.

II. Response to Comments

    EPA did not receive comments on our June 19, 2012 Federal Register 
proposed action regarding the disapproval of Utah's SIP revision to 
their R307-202 Emission Standards: General Burning rule.

III. Section 110(l) of the CAA

    Section 110(l) of the CAA states that a SIP revision cannot be 
approved if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress 
toward attainment of the National Ambient Air Quality Standards (NAAQS) 
or any other applicable requirements of the Act. The revision to Utah's 
R307-202 Emission Standards: General Burning could relax the existing 
SIP requirements by extending the open burn window. Because the State 
has not analyzed the effect of the extension of the open burn window, 
EPA cannot conclude that the revision would or would not interfere with 
attainment and maintenance of the NAAQS. As a result, EPA is 
disapproving the proposed revision pursuant to section 110(l).

IV. Final Action

    EPA is disapproving 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.

V. 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 final 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 this disapproval only applies to a date change for Utah's 
General Burning window, the 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 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 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 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 final 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 final 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 final rule consists of a 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 disapproving the submittal. 
The disapproval of the SIP, merely disapproves the state law as not 
meeting federal requirements and does not imposes 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 final 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 final 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

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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.

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 final 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 final 
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(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This action does not involved technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

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 final rule will not have a 
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 final 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 November 26, 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: September 10, 2012.
James B. Martin,
Regional Administrator, Region 8.
[FR Doc. 2012-23516 Filed 9-24-12; 8:45 am]
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