Clean Air Act Approval and Promulgation of Air Quality Implementation Plan Revision for Utah; Visibility Protection

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[UT-001-0001a; FRL-5802-2]

Clean Air Act Approval and Promulgation of Air Quality

Implementation Plan Revision for Utah; Visibility Protection

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA approves a revision to Utah's State Implementation Plan

(SIP) for Visibility Protection, as submitted by the Governor with a

letter dated July 25, 1996. The revision was adopted by the State in

1993 to address comments received from the 1992 Utah Legislature's

Administrative Rules Review Committee regarding the need to remove a

visibility policy statement from a regulation format (since it was not

a rule). The State responded by deleting the policy statement from the

Utah Air Conservation Regulations and adding the text into the

Visibility Protection SIP. This submittal was a necessary

``housekeeping'' step to bring the federally approved SIP up-to-date

with administrative revisions that took place at the State in 1993.

DATES: This action will become effective on June 9, 1997 unless adverse

comments are received by May 9, 1997. If the effective date is delayed,

timely notice will be published in the Federal Register.

ADDRESSES: Comments should be addressed to: Richard R. Long, Director,

Air Program, EPA Region VIII at the address listed below. Copies of the

State's submittal and other information are available for inspection

during normal business hours at the following locations: Air Program,

Environmental Protection Agency, Region VIII, 999 18th Street, suite

500, Denver, Colorado 80202-2405; and Utah Department of Environmental

Quality, Division of Air Quality, 150 North 1950 West, P.O. Box 144820,

Salt Lake City, Utah 84114-4820.

FOR FURTHER INFORMATION CONTACT: Amy Platt, 8P2-A, Environmental

Protection Agency, Region VIII, (303) 312-6449.

SUPPLEMENTARY INFORMATION:

I. Background

Section 169A of the Clean Air Act (CAA or Act),1 42 U.S.C.

7491, establishes as a National goal the prevention of any future, and

the remedying of any existing, anthropogenic visibility impairment in

mandatory Class I Federal areas 2 (referred to herein as the

``National goal'' or ``National visibility goal''). Section 169A calls

for EPA to, among other things, issue regulations to assure reasonable

progress toward meeting the National visibility goal, including

requiring each State with a mandatory Class I Federal area to revise

its SIP to contain such emission limits, schedules of compliance and

other measures as may be necessary to make reasonable progress toward

meeting the National goal. CAA section 169A(b)(2). Section 110(a)(2)(J)

of the CAA, 42 U.S.C. 7410(a)(2)(J), similarly requires SIPs to meet

the visibility protection requirements of the CAA.

---------------------------------------------------------------------------

\1\ The Clean Air Act is codified, as amended, in the U.S. Code

at 42 U.S.C. 7401, et seq.

\2\ Mandatory class I Federal areas include international parks,

national wilderness areas, and national memorial parks greater than

five thousand acres in size, and national parks greater than six

thousand acres in size, as described in section 162(a) of the Act

(42 U.S.C. 7472(a)). Each mandatory Class I Federal area is the

responsibility of a ``Federal land manager'' (FLM), the Secretary of

the department with authority over such lands. See section 302(i) of

the Act, 42 U.S.C. 7602(i).

---------------------------------------------------------------------------

EPA promulgated regulations that require affected States to, among

other things, (1) coordinate development of SIPs with appropriate

Federal Land Managers (FLMs); (2) develop a program to assess and

remedy visibility impairment from new and existing sources; and (3)

develop a long-term (10-15 years) strategy to assure reasonable

progress toward the National visibility goal. See 45 FR 80084, December

2, 1980 (codified at 40 CFR 51.300-51.307). The regulations provide for

the remedying of visibility impairment that is reasonably attributable

to a single existing stationary facility or small group of existing

stationary facilities. These regulations require that the SIPs provide

for periodic review, and revision as appropriate, of the long-term

strategy not less frequently than every three years, that the review

process include consultation with the appropriate FLMs, and that the

State provide a report to the public and EPA that includes an

assessment of the State's progress toward the National visibility goal.

See 40 CFR 51.306(c).

The Utah Governor submitted a SIP revision for Visibility

Protection with a letter dated April 26, 1985. The submittal met the

requirements for visibility monitoring (40 CFR 51.305) and visibility

New Source Review (40 CFR 51.307). EPA approved the submittal on May

30, 1986 (51 FR 19550).

On November 24, 1987 (52 FR 45132), EPA disapproved the SIPs of

states, including Utah, that failed to comply with the requirements of

the provisions of 40 CFR 51.302 (visibility general plan requirements)

and 51.306 (visibility long-term strategy). EPA also incorporated

corresponding Federal plans and regulations into the SIPs of these

states pursuant to section 110(c)(1) of the CAA, 42 U.S.C. 7410(c)(1).

[[Page 17094]]

The Governor of Utah submitted a SIP revision for visibility

protection with a letter dated December 11, 1987. The submittal

satisfied requirements for visibility general plan requirements (40 CFR

51.302) and visibility long-term strategy (40 CFR 51.306). EPA approved

this SIP revision on January 17, 1989 (54 FR 1694), and this revision

replaced the Federal plans and regulations in the Utah Visibility

Protection SIP.

The April 26, 1985 submittal and December 11, 1987 submittal

discussed above currently constitute the Utah Visibility Protection

SIP.

II. This Action

With a letter dated July 25, 1996, the Governor of Utah submitted a

revision to the Utah Visibility Protection SIP. This submittal was a

necessary ``housekeeping'' step to bring the federally approved SIP up-

to-date with administrative revisions that took place at the State in

1993.

In 1992, the Utah Legislature reviewed the State's air quality

rules and requested that the Utah Air Quality Board's policy on scenic

views be removed from the rules, since it was a policy statement and

not a rule. The Board responded by deleting the pertinent section of

the rules and adding the text to the Visibility Protection SIP. The

changes became effective on March 29, 1993.

A. Analysis of State Submission

1. Procedural Background

The CAA requires States to observe certain procedural requirements

in developing implementation plans and plan revisions for submission to

EPA. Section 110(a)(2) of the CAA provides that each implementation

plan submitted by a State must be adopted after reasonable notice and

public hearing. Section 110(l) of the CAA similarly provides that each

revision to an implementation plan submitted by a State under the CAA

must be adopted by such State after reasonable notice and public

hearing.

To entertain public comment, the Utah Air Quality Board (UAQB),

after providing adequate notice, held a public hearing on January 28,

1993 to consider the proposed revisions to the Utah Visibility

Protection SIP and Utah Air Conservation Regulations. Subsequent to the

public hearing, the UAQB adopted the revisions on March 26, 1993, and

the revisions became effective on March 29, 1993. The Governor of Utah

submitted the revisions to EPA with a letter dated July 25, 1996.

2. Content of SIP Revision

a. Utah Air Conservation Regulation R307-5 Deleted and Text Added to

Visibility Protection SIP

The Utah Legislature's Administrative Rules Review Committee

reviewed R307-5 and found it to be a policy statement of the UAQB

rather than a rule. In fact, the title of the rule was ``Policy of the

Air Conservation Committee Concerning the Protection of Scenic Views

Associated with the Mandatory Class I Areas from Significant Impairment

for Visibility.'' This rule was deleted and the bulk of it was added to

the text of the Utah SIP, Section 15,3 Visibility Protection, in a

new subsection 15.10. This policy statement, which had already been

approved in rule format, is simply being transferred to the SIP text as

follows.

\3\ Please note that Utah has renumbered its SIP since the State

adoption of these revisions. Visibility protection is now in Section

XVII of the SIP. However, the revision for the renumbering has not

been acted on yet by EPA.

---------------------------------------------------------------------------

The State recognizes that visibility and the ability to see the

great scenic views in Southern Utah is a rare and unique treasure

and should be preserved, both for the benefit and pleasure of Utah

residents, and to support our large tourist industry. In addition to

the distance one can see, the clarity, color, and detail of the

visible features are also important.

The [Air Conservation] Committee recommends that the Governor of

Utah seek the cooperation of the Western Governors' Association to

establish a task force on regional haze. The task force should be

composed of state air program directors and would provide a

recommendation to the Governor on the management of regional haze.

The task force would be expected to hold hearings, create work

groups, involve local area governments and federal agencies (EPA and

National Park Service) in developing information and formulating

recommendations. Based on the recommendations of the task force, the

governors would develop a policy on controlling regional haze for

the protection of visibility in the western United States where

visibility is an important ``treasure'' and resource.

EPA agrees that the above statement represents policy, not

regulation, and therefore, the administrative ``housekeeping'' action

of deleting the language from the Air Conservation Regulations and

adding it to the text of the Visibility Protection SIP was appropriate.

The revision is approvable.

b. Utah Air Conservation Regulation R307-2 Amended

As a result of revising the Visibility Protection section of the

SIP to create a new subsection 15.10 that contains the policy regarding

scenic views, R307-2 also was amended. This rule, R307-2, incorporates

the entire Utah SIP by reference and was amended to reflect the revised

adoption date by the UAQB for subsection 15.10. EPA is not acting on

this amendment to R307-2 because EPA's action in this document is

specific to the Visibility Protection section of the SIP and not the

entire Utah SIP.

III. Final Action

EPA is approving a revision to the Utah Visibility Protection SIP

as submitted to EPA with a letter dated July 25, 1996. This revision

deletes R307-5, which contained the Utah Air Quality Board's policy

statement on scenic views, and transfers the policy statement to the

text of the Visibility Protection SIP in a new subsection 15.10. EPA is

not acting on the amended R307-2.

EPA is publishing this action without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in a separate document in this Federal

Register publication, EPA is proposing to approve the SIP revision

should adverse or critical comments be filed. This action will be

effective June 9, 1997 unless, by May 9, 1997, adverse or critical

comments are received.

If EPA receives such comments, this action will be withdrawn before

the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will be

addressed in a subsequent final rule based on this action serving as a

proposed rule. EPA will not institute a second comment period on this

action. Any parties interested in commenting on this action should do

so at this time. If no such comments are received, the public is

advised that this action will be effective on June 9, 1997.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to a SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

IV. Administrative Requirements

A. Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10,

[[Page 17095]]

1995 memorandum from Mary Nichols, Assistant Administrator for Air and

Radiation. The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant economic impact on a substantial number of small entities.

Small entities include small businesses, small not-for-profit

enterprises, and government entities with jurisdiction over populations

of less than 50,000.

SIP approvals under section 110 and subchapter I, part D of the

Clean Air Act do not create any new requirements, but simply approve

requirements that the State is already imposing. Therefore, because the

Federal SIP approval does not impose any new requirements, I certify

that it does not have a significant impact on any small entities

affected. Moreover, due to the nature of the Federal-state relationship

under the Act, preparation of a regulatory flexibility analysis would

constitute Federal inquiry into the economic reasonableness of state

action. The Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66

(1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector. This Federal action proposes to

approve pre-existing requirements under State or local law, and imposes

no new Federal requirements. Accordingly, no additional costs to State,

local, or tribal governments, or to the private sector, result from

this action.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted 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

General Accounting Office prior to publication of this rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

E. Petitions for Judicial Review

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 June 9, 1997. 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, Nitrogen dioxide, Particulate

matter, Reporting and recordkeeping requirements, Sulfur oxides.

Dated: March 14, 1997.

Max H. Dodson,

Acting Regional Administrator.

40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

Authority: 42 U.S.C. 7401-7671q.

2. Section 52.2320 is amended by adding paragraph (c)(36) to read

as follows:

Sec. 52.2320 Identification of plan.

* * * * *

(c) * * *

(36) The Governor of Utah submitted a revision to Utah's State

Implementation Plan (SIP) for Visibility Protection with a letter dated

July 25, 1996. The revision was made to add a new subsection 15.10 to

the SIP to include a policy statement regarding scenic views which was

deleted from the Utah Air Conservation Regulations.

(i) Incorporation by reference.

(A) Utah State Implementation Plan, Subsection 15.10, Policy of the

Air Conservation Committee Concerning the Protection of Scenic Views

Associated with Mandatory Class I Areas from Significant Impairment for

Visibility, adopted on March 26, 1993, and effective on March 29, 1993.

(ii) Additional material.

(A) A July 25, 1996 letter from Michael O. Leavitt, Utah Governor,

to Jack McGraw, EPA Region VIII Acting Regional Administrator, in which

it was communicated, among other things, that the Utah Air Quality

Board deleted R307-5 from the Utah Air Conservation Regulations. The

deletion was effective March 29, 1993.

[FR Doc. 97-9108 Filed 4-8-97; 8:45 am]

BILLING CODE 6560-50-P