[Federal Register Volume 83, Number 118 (Tuesday, June 19, 2018)]
[Rules and Regulations]
[Pages 28382-28386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13046]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2017-0566; FRL-9979-48-Region 10]


Air Plan Approval; ID, Crop Residue Burning; Revision to Ozone 
Requirement

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve revisions to Idaho's State Implementation Plan (SIP) 
related to agricultural crop residue burning. The Director of the Idaho 
Department of Environmental Quality (IDEQ) submitted the revisions to 
EPA on September 22, 2017. IDEQ supplemented the original submission 
with photochemical modeling analyses on October 23, 2017. The revisions 
change the ambient ozone concentration level at which IDEQ may approve 
a permittee's request to burn. This final action is being taken for the 
reasons set out in EPA's proposed action in this matter. This action is 
being taken under section 110 of the Clean Air Act (the Act or CAA).

DATES: This final rule is effective July 19, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R10-OAR-2017-0566. All documents in the docket are listed on 
the https://www.regulations.gov website. 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, is not placed on the internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available through https://www.regulations.gov, or please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Randall Ruddick at (206) 553-1999, or 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,'' 
``us,'' or ``our'' is used, it is intended to refer to EPA.

Table of Contents

I. Background
II. Response to Comments
III. Final Action
IV. Incorporation by Reference
V. Statutory and Executive Orders Review

I. Background

    On September 22, 2017, the Idaho Department of Environmental 
Quality (IDEQ) submitted revisions to the SIP provisions regulating 
open burning of crop residue in the state to EPA for approval. On 
January 22, 2018, the EPA proposed to approve all of the revisions 
requested in the September 22, 2017 submittal. We are taking final 
action for the reasons explained in the January 22, 2018 notification 
of proposed approval (83 FR 2955). Please see our proposed approval for 
further explanation and the basis for our finding. The public comment 
period for this proposal ended on February 21, 2018. EPA received 
public comments on the proposed rulemaking. Summaries of the comments 
as well as EPA's responses to adverse comments are in Section II of 
this rulemaking action. After consideration of the comments, we do not 
believe any changes in the rationale or conclusions in the proposed 
approval are appropriate.

II. Response to Comments

    EPA received comments on a variety of issues related to the 
proposed approval of Idaho's crop residue burning SIP revisions. Out of 
a total of ten comments received, three were supportive of EPA's 
approval of the SIP revisions, four were adverse to the EPA's proposed 
approval, and three were determined to be not germane to this action. A 
full copy of all comments received is available in the docket for final 
action.

Comment

    EPA received public comments arguing that the NAAQS are not 
adequately protective of public health in the context of crop residue 
burning and should not be relied upon as the basis for approval of the 
proposed crop residue burning SIP revisions. One commenter stated that 
because the PM2.5 NAAQS takes the form of a 24-hour average 
that it allows ``spikes'' of emissions that are sufficient to ``kill 
citizens, especially children with undeveloped lungs, the elderly, and 
anyone with underlying heart or lung diseases.'' Another commenter 
urged EPA to disapprove the proposed SIP revisions, citing studies that 
they assert demonstrate negative human health impacts to exposure to 
ozone at levels below the NAAQS.

[[Page 28383]]

Response

    These comments relate to the adequacy of the PM2.5 and 
ozone NAAQS, and are therefore outside of the scope of this action. The 
CAA contains provisions that specifically address the establishment and 
review of the NAAQS. To briefly summarize, under sections 108 and 109 
of the Act, EPA issues ``air quality criteria'' and establishes NAAQS 
for certain air pollutants. CAA section 109(d)(1) requires EPA to 
periodically review, and if appropriate, revise the air quality 
criteria to reflect advances in scientific knowledge on the effects of 
the pollutant on public health and welfare, and to periodically review, 
and if appropriate revise, the NAAQS, based on the revised air quality 
criteria. Section 109(b)(1) defines a primary (health-based) standard 
as one ``the attainment and maintenance of which in the judgment of the 
Administrator, based on such criteria and allowing an adequate margin 
of safety, [is] requisite to protect the public health.'' In setting 
primary NAAQS that are ``requisite'' to protect public health, as 
provided in section 109(b), EPA's task is to establish standards that 
are neither more nor less stringent than necessary for these purposes. 
See generally Whitman v. American Trucking Associations, 531 U.S. 457, 
465-472, 475-76 (2001).
    Pursuant to those provisions, EPA completed its last review of the 
ozone NAAQS in 2015 (80 FR 65292, October 26, 2015). With respect to 
the primary standard, in that review EPA determined that the NAAQS 
should be revised to provide the requisite protection of public health 
(80 FR 65292, October 26, 2015). Accordingly, based on careful 
consideration of the extensive information in the record, including a 
thorough review of scientific evidence and information about ozone-
related health effects, quantitative assessments that estimated public 
health risks associated with just meeting the prior ozone NAAQS and 
various alternative standards that were considered, advice from EPA's 
Clean Air Scientific Advisory Committee (CASAC), and public comments 
received in response to the proposal, the Administrator revised the 
level of the primary ozone NAAQS to 0.070 parts per million, and 
retained the other elements of the prior standard (indicator, form, and 
averaging time) (80 FR 65365, October 26, 2015). In so doing, she 
concluded that the revised primary standard is requisite to protect 
public health, including the health of at-risk populations, with an 
adequate margin of safety (80 FR 65365, October 26, 2015).\1\ EPA 
provided notice and an opportunity for public comment on the proposal 
for this action (79 FR 75234, December 17, 2014) and there was an 
opportunity to file petitions for judicial review pursuant to CAA 
section 307.
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    \1\ A more detailed summary of the considerations in that 
review, as well as of the issues raised in in public comments and 
EPA's responses, can be found in the Federal Register notification 
for the final action (80 FR 65365, October 26, 2015), and in the 
Response to Comments document, which can be found in the docket for 
that action (Docket No. EPA-HQ-OAR-2008-0699).
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    Similarly, EPA completed its last periodic review of the PM NAAQS 
in 2012, and published notice of its decision to revise the PM NAAQS in 
2013 (78 FR 3086, January 15, 2013). With regard to the primary NAAQS 
for PM2.5, in that review EPA revised the annual 
PM2.5 standard, including by lowering the level to 12.0 
micrograms per cubic meter ([mu]g/m\3\) so as to provide increased 
protection against health effects associated with long- and short-term 
exposures (including premature mortality, increased hospital admissions 
and emergency department visits, and development of chronic respiratory 
disease), and retained the 24-hour PM2.5 standard at a level 
of 35 [mu]g/m\3\ (78 FR 3086, January 15, 2013).\2\ The Administrator 
concluded that with the revisions in that review the suite of standards 
would be requisite to protect public health with an adequate margin of 
safety against health effects potentially associated with long- and 
short-term PM2.5 exposures (78 FR 3164, January 15, 2013). 
EPA provided notice and an opportunity for public comment on the 
proposal for this action (77 FR 38890, June 29, 2012) and there was an 
opportunity to file petitions for judicial review pursuant to CAA 
section 307. Since then, EPA has initiated the next periodic review of 
the air quality criteria and NAAQS for PM (see 79 FR 71764, December 3, 
2014; 81 FR 22977-78, April 19, 2016).
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    \2\ A more detailed summary of the considerations in that 
review, as well as of the issues raised in in public comments and 
EPA's responses, can be found in the Federal Register notification 
for the final action (78 FR 3086, January 15, 2013), and in the 
Response to Comments document, which can be found in the docket for 
that action (Docket No. EPA-HQ-OAR-2007-0492).
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    These actions revising the primary NAAQS for PM and ozone, and the 
related conclusions that the 2012 PM NAAQS and 2015 ozone NAAQS are 
requisite to protect the public health with an adequate margin of 
safety, are beyond the scope of this action. This action concerns a SIP 
submission under CAA section 110, and under section 110(a) such plans 
are to ``provide[ ] for implementation, maintenance, and enforcement'' 
of the primary NAAQS. EPA does not revisit the adequacy of the NAAQS 
when taking action on proposed SIP modifications related to that 
pollutant. Rather, EPA reasonably focuses on a determination of whether 
a SIP amendment will ensure attainment and maintenance with the NAAQS 
as the relevant and applicable standard for approvals of SIP revisions 
under CAA section 110.
    In the matter at hand, Idaho requested a revision to the ozone 
concentration level at which IDEQ may authorize (authorization level) 
agricultural crop residue burning (CRB). The requested revision does 
not change the authorization levels for any other NAAQS and all other 
CRB requirements remain unchanged. For the reasons provided in our 
proposal for this action, we conclude that approval of Idaho's 
submitted SIP revisions will not interfere with any applicable 
requirement concerning attainment and reasonable further progress or 
any other applicable requirement of the Clean Air Act. 83 FR 2955, 
January 22, 2018.

Comment

    Several commenters expressed concern about Idaho's failure to 
evaluate how an increase in ozone emissions from crop residue burning 
would interact with other pollutants to impact public health. The 
commenters argued that Idaho has a duty to demonstrate that its 
proposed SIP revisions will not increase risks to public health. 
Several commenters objected to the SIP revision on the basis that the 
changes are not in the public interest and constitutes a weakening of a 
health-based standard. Commenters cited both impacts to public health 
associated with crop residue burning from both ozone and fine particles 
(PM2.5). One commenter asserted that Idaho did not consider 
the cumulative public health impacts of frequent or multiple exposures 
to PM from sources including both CRB and wildfires. They argue that 
Idaho did not adequately consider other pollutants (such as PM or CO) 
described as ``by-products'' of biomass burning, and more specifically 
did not consider the combined effects of PM2.5, CO and 
ozone, as well as toxics such as ``benzene, PAH's [sic] and others'' 
that are in the air as a result of either CRB or from wildfires. One 
commenter argued that in the absence of ``conclusive studies of the 
effects of breathing all these substances at once, . . . maintaining 
the 75% of all NAAQS is the only proven way'' to protect public health. 
The Idaho Conservation League (ICL) argued that Idaho's SIP submission 
``failed to provide sufficient justification that remaining CAA

[[Page 28384]]

requirements would not be violated'' and specifically cited section 101 
of the Clean Air Act (42 U.S.C. 7401(b)(1)) to support its assertion.

Response

    As explained in EPA's notice of proposed rulemaking in this matter, 
whether or not a SIP revision will interfere with any applicable 
requirement concerning attainment and reasonable further progress or 
any other applicable requirement of the CAA is the relevant basis for 
approval or disapproval. SIPs, under CAA section 110, implement the 
NAAQS contained in CAA section 109 which are specific to the six 
criteria pollutants: Carbon monoxide, lead, nitrogen dioxide, ozone, 
particulate matter, and sulfur dioxide. Hazardous air pollutants (HAPs) 
such as benzene and PAHs, in general, are not regulated under Title I 
of the CAA and are not relevant to EPA determinations of whether or not 
a SIP revision meets the relevant requirements of the Act. Contrary to 
the arguments raised by these commenters, EPA does not have authority 
under the CAA to consider whether a proposed SIP revision will result 
in a general increased risk to public health (whether it be from one 
pollutant considered in isolation or the synergistic effects of human 
exposure to multiple pollutants interacting with one another) so long 
as the state can demonstrate that the SIP will result in the attainment 
or maintenance of the relevant NAAQS.
    ICL cites CAA section 101(b)(1) in support of its assertion that 
Idaho's SIP submission does not meet the requirements of the CAA, and 
that Idaho had not provided a sufficient justification that CAA 
requirements not related to the ozone NAAQS would not be violated. CAA 
section 101(b)(1) provides a declaration of one of the purposes of 
Title I of the Act, namely ``to protect and enhance the quality of the 
Nation's air resources so as to promote the public health and welfare 
and the productive capacity of its population.'' EPA disagrees with the 
commenter's assertion that CAA section 101(b)(1) authorizes EPA to 
disapprove a SIP revision based on the cumulative impacts of pollutants 
in evaluating a state's implementation plan under Title I.

Comment

    One commenter disputed Idaho's assertion that raising the burn 
authorization trigger from 75% to 90% of the ozone NAAQS will 
facilitate authorizing burning on days when the conditions for 
pollutant dispersion are better. Multiple commenters asserted that 
Idaho did not consider alternative options to crop residue burning, 
including the option of simply not authorizing burns on days when the 
NAAQS will exceed the current 75% burning authorization level (e.g., 
making no changes to the current SIP-approved rules). The commenters 
cited the current 75% of the NAAQS SIP limit to be the product of a 
compromise of interests, and one that anticipated that monitored 
averages would not be an adequate gauge of actual PM2.5 or 
other criteria pollutant exposure, and thus provided a margin of safety 
to public health that the proposed SIP revision would eliminate. One 
commenter stated that the ozone monitoring network in Idaho could be 
``more robust.''

Response

    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. Failure to 
consider alternatives to the proposed SIP revision is not a basis for 
disapproval. Even if the existing SIP burning threshold was originally 
established as a consensus-based standard at the state level taking 
into account the factors identified by the commenters, EPA cannot 
substitute its judgement or policy preferences for Idaho's lawfully 
submitted SIP revision so long as the SIP revision is consistent with 
the CAA's requirements. As explained in EPA's notice of proposed 
rulemaking, EPA concludes that Idaho has adequately demonstrated that 
the SIP revision will not interfere with continued attainment of the 
ozone NAAQS in Idaho. Potential effects of the revision on attainment 
and maintenance is limited to the ozone NAAQS because the SIP 
submission does not alter any requirements related to other criteria 
pollutants. Under such circumstances, nothing in the CAA prohibits a 
state from modifying its SIP requirements to address its current air 
quality management needs.
    As explained in EPA's notification of proposed approval, EPA 
concludes that Idaho has adequately demonstrated that it will continue 
to attain the ozone NAAQS after raising its ozone burning threshold. To 
the extent that the commenter is raising concerns about the adequacy of 
the Idaho ozone monitoring network to detect ozone NAAQS violations, it 
is relevant to note that EPA regularly assesses the adequacy of states' 
monitoring networks for all pollutants pursuant to its review of each 
state's Annual Network Monitoring Plan. EPA's most recent evaluation of 
the Idaho ozone monitoring network was addressed in its November 8, 
2017, approval letter (included in the docket for this action). EPA's 
approval letter identified areas where an ozone monitor may need to be 
added in the future. EPA will continue to monitor the adequacy of the 
ozone monitoring network to determine if the network must be expanded 
to comply with 40 CFR part 58 requirements.

III. Final Action

    EPA is approving, and incorporating by reference where appropriate 
in Idaho's SIP, all revisions requested by Idaho on September 22, 2017 
to the following provisions:
     IDAPA 58.01.01.621.01 (Burn Approval Criteria, state 
effective February 28, 2018); and
     Idaho Code 39-114 (Open Burning of Crop Residue, state 
effective February 28, 2018).
    We have determined that the submitted SIP revisions are consistent 
with section 110 and part C of Title I of the CAA.

IV. Incorporation by Reference

    In this rule, EPA is approving regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, we are incorporating by reference the provisions described above 
in Section III. Final Action and set forth below, as amendments to 40 
CFR part 52. EPA has made, and will continue to make, these documents 
generally available electronically through https://www.regulations.gov 
and at the EPA Region 10 office (please contact the person identified 
in the FOR FURTHER INFORMATION CONTACT section of this preamble for 
more information).

V. Statutory and Executive Orders Review

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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 state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
final 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 action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory

[[Page 28385]]

action because SIP approvals are exempted under Executive Order 12866;
     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 this action does not involve technical standards; and
     does not provide 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).

The SIP is not approved to apply on any Indian reservation land or in 
any other area where EPA or an Indian Tribe has demonstrated that a 
Tribe has jurisdiction. In those areas of Indian country, the rule does 
not have Tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000).
    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 CAA section 307(b)(1), petitions for judicial review of this 
action must be filed in the United States Court of Appeals for the 
appropriate circuit by August 20, 2018. 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 CAA section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Administrative 
practice and procedure, Incorporation by reference, Intergovernmental 
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur oxides, Volatile organic 
compounds.

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

    Dated: June 7, 2018.
Chris Hladick,
Regional Administrator, EPA Region 10.

    For the reasons set forth in the preamble, 40 CFR part 52 is 
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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. Section 52.670 is amended by:
0
a. In paragraph (c), under table entitled ``EPA-Approved Idaho 
Regulations and Statutes'':
0
i. Revising entry ``621'';
0
ii. Removing entry ``Section 1 of House bill 557, codified at Idaho 
Code Section 39-114''; and
0
iii. Adding an entry at the end of the table.
0
b. In paragraph (e), under the table entitled ``EPA-Approved Idaho 
Nonregulatory Provisions and Quasi-Regulatory Measures'', adding an 
entry at the end of the table.
    The revision and additions read as follows:


Sec.  52.670  Identification of plan.

* * * * *
    (c) * * *

                                   EPA-Approved Idaho Regulations and Statutes
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         State citation             Title/subject    State effective date   EPA approval date     Explanations
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      Idaho Administrative Procedures Act (IDAPA) 58.01.01--Rules for the Control of Air Pollution in Idaho
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                                                  * * * * * * *
621............................  Burn Determination   2/28/2018, 4/2/2008  6/19/2018, [Insert  .................
                                                                            Federal Register
                                                                            citation]; 8/1/
                                                                            2008, 73 FR 44915.
 
                                                  * * * * * * *
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                                                 State Statutes
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Section 3 of Senate Bill 1009,   Open Burning of                2/28/2018  6/19/2018, [Insert  .................
 codified at Idaho Code Section   Crop Residue.                             Federal Register
 39-114.                                                                    citation].
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* * * * *
    (e) * * *

[[Page 28386]]



                    EPA-Approved Idaho Nonregulatory Provisions and Quasi-Regulatory Measures
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                                     Applicable
     Name of SIP provision          geographic or    State submittal date   EPA approval date       Comments
                                 nonattainment area
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                                                  * * * * * * *
Open Burning of Crop Residue     State-wide........     9/22/2017, 10/23/  6/19/2018, [Insert  Original
 State Implementation Plan                                           2017   Federal Register    submission and
 Revisions.                                                                 citation].          supplemental
                                                                                                modeling
                                                                                                analyses
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[FR Doc. 2018-13046 Filed 6-18-18; 8:45 am]
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