Approval and Promulgation of Air Quality Implementation Plans; Utah; Foreword and Definitions, Revision to Definition for Sole Source of Heat and Emissions Standards, Nonsubstantive Changes; General Requirements, Open Burning and Nonsubstantive Changes; and Foreword and Definitions, Addition of Definition for PMINF10/INF Nonattainment Area

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[UT10-1-6700a; UT-001-0014a; UT-001-0015a; FRL-6314-8]

Approval and Promulgation of Air Quality Implementation Plans;

Utah; Foreword and Definitions, Revision to Definition for Sole Source

of Heat and Emissions Standards, Nonsubstantive Changes; General

Requirements, Open Burning and Nonsubstantive Changes; and Foreword and

Definitions, Addition of Definition for PM10 Nonattainment

Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action approving State

Implementation Plan (SIP) revisions submitted by the Governor of the

State of Utah. On July 11, 1994, the Governor submitted a SIP revision

for the purpose of establishing a modification to the definition for

``Sole Source of Heat'' in UACR R307-1-1; this revision also made a

change to UACR R307-1-4, ``Emissions Standards.'' On February 6, 1996,

a SIP revision to UACR R307-1-2 was submitted by the Governor of Utah

which contains changes to Utah's open burning rules, requiring that the

local county fire marshal has to establish a 30-day open burning window

in order for open burning to be allowed in areas outside of

nonattainment areas. Other minor changes are made in this revision to

UACR R307-1-2.4, ``General Burning'' and R307-1-2.5, ``Confidentiality

of Information.'' In addition, on July 9, 1998, SIP revisions were

submitted that would add a definition for ``PM10

Nonattainment Area'' to UACR R307-1-1. This action is being taken under

section 110 of the Clean Air Act.

DATES: This rule is effective on May 26, 1999 without further notice,

unless EPA receives adverse comment by April 26, 1999. If adverse

comment is received, EPA will publish a timely withdrawal of the direct

final rule in the Federal Register informing the public that the rule

will not take effect.

ADDRESSES: Written comments may be mailed to Richard R. Long, Director,

Air and Radiation Program, Mailcode 8P-AR, Environmental Protection

Agency (EPA), Region VIII, 999 18th Street, Suite 500, Denver,

Colorado, 80202-2466. Copies of the documents relevant to this action

are available for public inspection during normal business hours at the

Air and Radiation Program, Environmental Protection Agency, Region

VIII, 999 18th Street, Suite 500, Denver, Colorado, 80202 and copies of

the Incorporation by Reference material are available at the Air and

Radiation Docket and Information Center, Environmental Protection

Agency, 401 M Street, SW, Washington, DC 20460. Copies of the State

documents relevant to this action are available for public inspection

at the Utah Department of Environmental Quality, Division of Air

Quality, 150 North 1950 West, Salt Lake City, Utah 84114-4820.

FOR FURTHER INFORMATION CONTACT: Cindy Rosenberg, EPA, Region VIII,

(303) 312-6436.

SUPPLEMENTARY INFORMATION: On July 11, 1994, February 6, 1996, and July

9, 1998, the State of Utah submitted formal revisions to its State

Implementation Plan (SIP). The July 11, 1994, SIP submittal consists of

a modification to the definition for ``Sole Source of Heat'' in UACR

R307-1-1, as well as a nonsubstantive change to UACR R307-1-4,

``Emissions Standards.'' The February 6, 1996, submittal made revisions

to UACR R307-1-2 and contains changes to Utah's open burning rules to

require that the local county fire marshal establish a 30-day open

burning window in order for open burning to be allowed in areas outside

of nonattainment areas. Other minor changes are made in this revision

to UACR R307-1-2.4, ``General Burning'' and R307-1-2.5,

``Confidentiality of Information.'' The July 9, 1998, submittal adds a

definition for ``PM10 Nonattainment Area'' to UACR R307-1-1.

I. Background

On July 11, 1994, the definition for ``Sole Source of Heat'' was

revised in UACR R307-1-1 such that households with only small portable

heaters are included in the definition to allow these households to

burn during mandatory no-burn periods. Revisions were also made to UACR

R307-1-4 to include a new sub-section on ``PM10 Contingency

Plans;'' these plans were requested to be withdrawn by the Governor in

a November 9, 1998, letter to the Regional Administrator. EPA returned

the portions of these plans with a letter to the Governor on January

29, 1999. However, a nonsubstantive change was made in this section as

a result of the revision. This change moves section 4.13.3 D to section

4.13.3.E. For the purposes of ease and efficiency for the State, the

revised sub-section numbering is being approved.

On February 6, 1996, the State of Utah submitted its revised open

burning regulations in order to make them more consistent with Utah

Code 65A-8-9. The State rules that were approved earlier in the SIP

allow for more leniency with respect to open burning windows than does

the Utah Code.

The following are requirements for open burning under Utah Code

65A-8-9 which pertain to the rule change addressed by the SIP:

1. June 1 through October 31 of each year is to be a closed fire

season throughout the State.

2. The state forester has jurisdiction over the types of open

burning allowed with a permit during the closed fire season.

The open burning requirement that was previously in the Utah SIP

pertaining to this rule change is as follows:

For areas outside of Salt Lake, Davis, Weber, and Utah Counties

(nonattainment areas), open burning is allowed during the periods of

March 30 through May 30 and September 15 through October 30 with a

permit issued by the authorized local authority.

The open burning requirement that was adopted by the Utah Air

Quality Board on September 6, 1995 is as follows:

For areas outside of the designated nonattainment areas, open

burning is allowed during the March 30 through May 30 period and the

September 15 through October 30 period if the local county fire marshal

has established a 30-day window for such open burning to occur with a

permit issued by the authorized local authority and the state forester

has allowed for such permit to be issued.

On July 9, 1998, the State submitted a revision to UACR R307-1-1,

``Foreword and Definitions.'' The State of Utah's new definition is

such that, `` `PM10 Nonattainment Area' means Salt Lake

County, Utah County, or Ogden City.'' This definition was included in

the State rules in order to ensure that all requirements for

PM10 nonattainment areas remain in effect after the

revocation of the pre-existing NAAQS for PM10.

[[Page 14621]]

II. Summary of SIP Revision

A. Review of Revisions

1. Review of the Changes to ``Foreword and Definitions'' Regulations

Concerning the Definition for ``Sole Source of Heat''

The residential woodburning regulation revision was developed by

the Utah Division of Air Quality with input from local governments and

the public. The Air Quality Board approved two changes to the

woodburning rule at the December 9, 1993, hearing which were later

submitted by the Governor. The revision to R307-1-1 redefines the

definition for ``Sole Source of Heat.'' This change defines which

households may continue burning during woodburning bans so that those

households with small portable heaters still qualify under the

definition of households for which wood or coal burning is the only

source of heat. The second revision which was made to the residential

woodburning regulations under R307-1-4.13, specifies the actions which

must be taken if contingency measures are implemented in the Salt Lake,

Davis or Utah County nonattainment areas. These plans were requested to

be withdrawn by the Governor in a November 9, 1998, letter to the

Regional Administrator. EPA returned the portions of these plans with a

letter to the Governor on January 29, 1999. However, a nonsubstantive

change was made in this section as a result of the revision. This

change moves section 4.13.3 D to section 4.13.3.E. For the purposes of

ease and efficiency for the State, the revised sub-section number is

being approved, and thus, there will be no section 4.13.3.D.

2. Review of the Changes to General Requirements Regulations Concerning

Open Burning Regulations and Minor Changes to Rules

Utah made revisions to its open burning regulations for areas

outside of nonattainment areas because they were found to be in

conflict with Utah Code 65A-8-9. The Code prohibits open burning

between June 1 and October 31, unless a permit has been issued, whereas

the open burning regulations allowed burning between March 30 and May

30 and between September 15 and October 30 in areas outside of

nonattainment areas. The change to the open burning rule requires that

the local county fire marshal establish a 30-day window during the

spring and fall open burning windows in areas outside of Salt Lake,

Davis, Weber, and Utah Counties in order for open burning to occur. In

regards to the fall window, upon the decision of the state forester

under Section 65A-8-9 of the Utah Code, the local county fire marshal

may establish a 30-day period between September 15 and October 30 as an

open burning period in which permits are required to conduct open

burning. These changes were made under UACR R307-1-2.4.4. The proposed

changes had originally not included the fall open burning window, but

after adverse public comment the proposed rule was changed to allow for

fall burning under the above provisions.

Other minor changes were made to the open burning regulations as

well. Section R307-1-2.4, ``General Burning'' has had numbers added to

it to make it more consistent with Utah Code 19-2-114. Section R307-1-

2.4.3.C is corrected to refer to Subsection R307-17-3 in place of

section 4.13.3 of the regulations. More minor changes were also made

throughout the open burning regulations to change capitalization and to

correct references.

Minor changes were also made under R307-1-2.5, ``Confidentiality of

Information'' including a changed statutory reference in R307-1-

2.5.1.B. Additional changes were made to correct references and

capitalization of section headings.

3. Review of the Changes to ``Foreword and Definitions'' Regulations

Concerning the Addition of a Definition for PM10

Nonattainment Areas

On January 7, 1998, the Air Quality Board approved the addition of

the definition for ``PM10 Nonattainment Area.'' This

revision ensures that the currently designated nonattainment areas

within the State for PM10 will be held to the same

requirements after the pre-existing PM10 NAAQS are revoked

as they were prior to the revocation of the NAAQS. This action is

important in order to prevent the areas from backsliding during the

interim period between the revocation of the NAAQS and the designation

of the areas under the revised standards for PM10.

B. Procedural Background

The CAA requires States to observe certain procedural requirements

in developing SIP revisions for submittal to EPA. Section 110(a)(2) of

the CAA provides that each SIP revision be adopted after going through

a reasonable notice and public hearing process prior to being submitted

by a State to EPA. EPA has evaluated each of the above Governor's

submittals and discusses them below.

1. July 11, 1994 submittal: Copies of the proposed changes were

made available to the public and the State held public hearings for the

changes to ``Foreword and Definitions'' and ``Emissions Standards'' on

October 5, 1993, October 6, 1993, October 7, 1993, and October 13,

1993. The changes to the State's rules were adopted by the Air Quality

Board on December 9, 1993 and became effective on January 31, 1994; the

revision was formally submitted by the Governor on July 11, 1994. EPA

determined the submittal was complete on September 22, 1994. A portion

of this revision included PM10 contingency plans which were

requested to be withdrawn by the Governor in a November 9, 1998, letter

to the Regional Administrator. EPA returned this portion of the

submittal with a letter to the Governor on January 29, 1999.

2. February 6, 1996 submittal: Copies of the proposed changes were

made available to the public and the State held public hearings for the

changes to ``General Requirements'' on July 14 (two separate hearings),

17, 18, and 19, 1995. The changes to the State's rule were adopted by

the Air Quality Board on September 6, 1995 and became effective on

October 31, 1995; the new open burning regulations, along with the

other nonsubstantive changes to ``General Requirements,'' were formally

submitted by the Governor on February 6, 1996. EPA determined the

submittal was complete on August 14, 1996.

3. July 9, 1998 submittal: Copies of the proposed changes were made

available to the public and the State held public hearings for the

changes to ``Foreword and Definitions'' on December 16, 1997 and

January 5, 1998. The changes to the State's rule were adopted by the

Air Quality Board on January 7, 1998 and became effective on January 8,

1998; the new definition was formally submitted by the Governor on July

9, 1998. EPA determined the submittal was complete on October 16, 1998.

III. Final Action

EPA is approving the Governor's submittal of July 11, 1994, to

revise the definition for ``Sole Source of Heat'' to define which

households may continue burning during woodburning bans so that those

households with small portable heaters still qualify under the

definition of households for which wood or coal burning is the only

source of heat. EPA is also approving a change made under ``Emissions

Standards,'' which moves section 4.13.3 D to section 4.13.3.E. EPA is

approving the submittal of February 6, 1996, which made changes to

Utah's open burning regulations (in ``General Burning'') to require

that the local county fire marshal establish a 30-day window

[[Page 14622]]

during which open burning activities may occur in areas outside of

nonattainment areas during the spring and fall closed burning seasons.

This applies to all areas in the State outside of Salt Lake, Davis,

Weber, and Utah Counties where the state forester has permitted the

local county fire marshal to establish the open burning window. Minor

changes were also made to R307-1-2.4, ``General Burning'' as well as

R307-1-2.5, ``Confidentiality of Information.'' Lastly, EPA is

approving the Governor's submittal of July 9, 1998, adding a definition

for ``PM10 Nonattainment Area'' in R307-1-1 to ensure that

requirements for nonattainment areas are retained in Salt Lake County,

Utah County, and Ogden City after the pre-existing PM10

NAAQS are revoked.

EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in the ``Proposed Rules'' section of today's

Federal Register publication, EPA is publishing a separate document

that will serve as the proposal to approve the SIP revision should

adverse comments be filed. This rule will be effective May 26, 1999

without further notice unless the Agency receives adverse comments by

April 26, 1999. If the EPA receives adverse comments, EPA will publish

a timely withdrawal in the Federal Register informing the public that

the rule will not take effect. EPA will address all public comments in

a subsequent final rule based on the proposed rule. The EPA will not

institute a second comment period on this action. Any parties

interested in commenting must do so at this time.

IV. Administrative Requirements

A. Executive Order 12866

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

regulatory action from Executive Order 12866, entitled ``Regulatory

Planning and Review.''

B. Executive Order 12875

Executive Order 12875: Enhancing the Intergovernmental Partnership

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a state, local,

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of state, local, and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's rule does not create a mandate on State, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of Executive

Order 12875 do not apply to this rule.

C. 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 E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the environmental health or safety effects of the planned rule on

children, and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency.

This rule is not subject to E.O. 13045 because it does not involve

decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

Executive Order 13084: Consultation and Coordination With Indian Tribal

Governments

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.'' Today's rule

does not significantly or uniquely affect the communities of Indian

tribal governments. Accordingly, the requirements of section 3(b) of

Executive Order 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements 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 not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because 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

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Clean Air Act, preparation of flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976);

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

F. 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

[[Page 14623]]

aggregate; or to 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 approves pre-

existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. section 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 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. This rule is not a

``major rule'' as defined by 5 U.S.C. section 804(2).

H. 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 May 26, 1999. 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: March 11, 1999.

William P. Yellowtail,

Regional Administrator, Region VIII.

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 et seq.

Subpart TT--Utah

2. Section 52.2320 is amended by adding paragraph (c)(41) to read

as follows:

Sec. 52.2320 Identification of plan.

* * * * *

(c) * * *

(41) On July 11, 1994 the Governor of Utah submitted revisions to

the Utah State Implementation Plan (SIP) to revise the definition for

``Sole Source of Heat'' under UACR R307-1-1, ``Foreword and

Definitions,'' to allow the exemption of those households with small

portable heating devices from mandatory no-burn periods. This revision

also made changes to the residential woodburning regulations under UACR

R307-1-4.13.3 ``No-Burn Periods,'' which specifies the actions which

must be taken if contingency measures are implemented in the Salt Lake,

Davis or Utah County nonattainment areas. These plans were requested to

be withdrawn by the Governor in a November 9, 1998, letter to the

Regional Administrator. EPA returned the portions of these plans with a

letter to the Governor on January 29, 1999. A nonsubstantive change was

made in this section as a result of the revision which moves section

4.13.3 D to section 4.13.3.E; this change was also approved by EPA. On

February 6, 1996 the Governor of Utah submitted revisions to the Utah

State Implementation Plan to revise Utah's open burning regulations,

under UACR R307-1-2.4, to require that the local county fire marshal

establish 30-day open burning windows during the spring and fall closed

burning seasons in areas outside of Salt Lake, Davis, Weber, and Utah

Counties as granted by the state forester. There were also minor

changes made to the open burning regulations under UACR R307-1-2.4,

``General Burning'' and minor changes made to UACR R307-1-2.5

``Confidentiality of Information.'' On July 9, 1998 the Governor of

Utah submitted revisions to the Utah SIP to add a definition for

``PM10 Nonattainment Area,'' under UACR R307-1-1, ``Foreword

and Definitions,'' to ensure that all requirements for nonattainment

areas are retained in Salt Lake County, Utah County and Ogden City

after the pre-existing PM10 standards are revoked.

(i) Incorporation by reference.

(A) UACR R307-1-1, a portion of ``Foreword and Definitions,''

revision of definition for ``Sole Source of Heat,'' as adopted by Utah

Air Quality Board on December 9, 1993, effective on January 31, 1994.

(B) UACR R307-1-4, a portion of ``Emissions Standards,'' as adopted

by Utah Air Quality Board on December 9, 1993, effective on January 31,

1994.

(C) UACR R307-1-2, a portion of ``General Requirements,'' open

burning changes and nonsubstantive wording changes, as adopted by Utah

Air Quality Board on September 6, 1995, effective on October 31, 1995.

(D) UACR R307-1-1, a portion of ``Foreword and Definitions,'

addition of definition for ``PM10 Nonattainment Area,'' as

adopted by Utah Air Quality Board on January 7, 1998, effective on

January 8, 1998.

(ii) Additional Material.

(A) July 20, 1998, fax from Jan Miller, Utah Department of Air

Quality, to Cindy Rosenberg, EPA Region VIII, transmitting Utah Code

65A-8-9, regarding closed fire seasons.

(B) October 21, 1998, letter from Richard R. Long, Director, EPA

Air and Radiation Program, to Ursula Trueman, Director, Utah Division

of Air Quality, requesting that Utah withdraw the submitted Salt Lake

and Davis County PM10 Contingency Measure SIP revisions, the

Utah County PM10 Contingency Measure SIP revisions, and the

Residential Woodburning in Salt Lake, Davis and Utah Counties

PM10 Contingency Measure SIP revision.

(C) November 9, 1998, letter from the Governor of Utah, to William

Yellowtail, EPA Region VIII Administrator, requesting that the

submitted Salt Lake and Davis County and Utah County PM10

Contingency Measure SIP revisions and the Residential Woodburning in

Salt Lake, Davis and Utah Counties PM10 Contingency Measure

SIP revision be withdrawn.

(D) December 16, 1998, letter from Larry Svoboda, EPA Region VIII,

to Ursula Trueman, Utah Department of Air Quality, clarifying revisions

that were made to UACR R307-1-4.

(E) January 5, 1999, letter from Ursula Trueman, Utah Department of

Air Quality, to William Yellowtail, EPA Region VIII Administrator,

concurring on EPA's clarification of revisions that were made to UACR

R307-1-4.

[[Page 14624]]

(F) January 29, 1999, letter from William Yellowtail, EPA Region

VIII Administrator, to the Governor of Utah returning the Salt Lake and

Davis County and Utah County PM10 Contingency Measure SIP

revisions and the Residential Woodburning in Salt Lake, Davis and Utah

Counties PM10 Contingency Measure SIP revision.

[FR Doc. 99-7424 Filed 3-25-99; 8:45 am]

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