Daily Rules, Proposed Rules, and Notices of the Federal Government
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. Information is organized as follows:
In the CAA Amendments of 1977, Congress established a program to protect and improve visibility in national parks and wilderness areas. See CAA section 169A. Congress amended the visibility provisions in the CAA in 1990 to focus attention on the problem of regional haze. See CAA section 169B. EPA promulgated regulations in 1999 to implement sections 169A and 169B of the Act. These regulations require states to develop and implement plans to ensure reasonable progress toward improving visibility in mandatory Class I Federal areas
On behalf of the State of Idaho, the Idaho Department of Environmental Quality (IDEQ) submitted its Regional Haze State Implementation Plan (Regional Haze SIP submission or SIP submittal) to EPA on October 25, 2010. In a previous action EPA approved certain provisions in Idaho's Regional Haze SIP submission, 76 FR 36329, June 22, 2011. Specifically, the previous action approved the BART provisions (40 CFR 51.308(e)), the calculation of baseline and natural conditions (40 CFR 51.308(d)(2)), and the statewide emission inventory of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any mandatory Class I area.
On May 22, 2012, EPA proposed to approve the remaining provisions of Idaho's Regional Haze SIP submission, including the regional haze requirements for establishing RPGs and the LTS, see 77 FR 30248. The public comment period for this proposed rule ended on June 21, 2012.
EPA received five comments on the May 22, 2012, proposed action to approve portions of the Idaho Regional Haze SIP submittal. Responses to issues raised in these comment letters are discussed in this section.
The NPS indicated that the Idaho plan did appropriately identify the major source categories to evaluate for controls under reasonable progress, but noted however, that Idaho did not properly consider what emission controls might be reasonable to implement for specific sources within those categories to “assure reasonable progress towards meeting the national goal of preventing future and remedying any existing impairment of visibility in mandatory Class I federal areas.” The NPS recommended that Idaho reconsider the decision that no controls are reasonable for sources under the reasonable progress requirements. The commenter noted further that Idaho did not consider controls for stationary sources of sulfur dioxide (SO
SAFE, whose comments were endorsed by SOS NW, asserts that it is not reasonable for Idaho to submit a SIP that provides no additional controls for reasonable progress given that none of Idaho's Class I areas are projected to meet the uniform rate of progress by 2064. This commenter further indicates that the State should adopt low-cost controls on stationary sources that could produce additional progress.
The Shoshone-Bannock Tribes Air Quality Department commented that Idaho needs to demonstrate that it is making reasonable progress within the State, especially with respect to non-BART sources in eastern Idaho. The comment adds that the SIP submittal was not detailed enough to report emissions of haze pollutants from BART and non-BART units for three plants: The J.R. Simplot Don Plant, Nu West/Agrium, and P4 Production LLC (formerly Monsanto) and that EPA
For J.R. Simplot, the Shoshone-Bannock Tribes Air Quality Department further notes that the Western Regional Air Partnership (WRAP) identified 31 separate emission units within the plant and that the most significant sources of visibility impairing pollutants were non-BART emission units. This comment adds that the plant has operated with few process changes over the years and has been well characterized and permitted by IDEQ, and that the State should have carried out the four-factor reasonable progress analysis as required by the CAA. The commenter noted that the 2007 Toxic Release Inventory shows that the facility emitted 4 tons per day of SO
The Shoshone-Bannock Tribes Air Quality Department was also critical of IDEQ's claim that an additional five years (i.e., two years for modeling and 3 years to install emission controls) was needed for a thorough four-factor analysis for the J.R. Simplot facility and other large stationary sources, particularly in light of the tardiness of the SIP submittal. The commenter points out that the delay in providing a four-factor analysis is erroneous underscored by the fact that the J.R. Simplot facility recently applied for a construction permit to make improvements at one of the sulfuric acid units at the plant and indicated that only one year was necessary for installing an improved scrubber. Given the projected five-year delay for the analysis plus installation of controls and that the SIP submittal was three years past the deadline, the commenter believes that the deferral is unreasonable and that EPA should require the State to complete the reasonable progress analyses on a realistic schedule and not approve the existing submittal. Finally the commenter offers that the State, by requesting an unreasonable timetable for compliance and projecting the five-year delay, is establishing the possibility that J.R. Simplot and other sources may not be ready for emission reductions even in time for the five year review period (i.e., the five-year progress report). The comment calls for EPA to review this issue and require IDEQ to revise the SIP accordingly.
EPA agrees with commenters that as part of its reasonable progress analysis, the State did not thoroughly assess controls for specific sources after having identified cost-effective options for certain source categories. The Idaho SIP submittal, however, concluded that additional controls on stationary sources of SO
As explained in the notice of proposed rulemaking for this action, as part of our review of the Idaho Regional Haze SIP submittal, EPA independently evaluated whether additional control measures were reasonable for non-BART stationary sources located within Idaho's regulatory jurisdiction that would achieve further progress toward the national goal. See 77 FR 30255. In our evaluation, we used a screening methodology referred to as “Q/d.” We used the CALPUFF modeling results from a number of BART-eligible sources in combination with the ratio of each of these source's emissions (denoted by the variable Q) divided by the source's distance, in kilometers, from the nearest Class I area (denoted by the variable d). See the memorandum with subject “Q/d Analysis of BART Sources in Idaho, Oregon and Washington to Establish a Threshold for Estimating Visibility Impacts from non-BART Sources” from Keith Rose, EPA Region 10, dated March 21, 2012, which can be found in the docket for this action. Based on the CALPUFF modeling results, we concluded that the BART-eligible sources having a Q/d ratio less than 20 would not make a significant contribution to visibility impairment in any Class I area. Likewise, we then assumed that the non-BART sources in Idaho having a Q/d ratio less than 20 would not significantly impair visibility in the Class I areas in Idaho. We calculated the Q/d ratio for all non-BART stationary sources emitting more than 40 tpy of SO
Regarding the NPS and Shoshone-Bannock Tribes Air Quality Department comments about assessing SO
With regard to the Nu West/Agrium facility, we disagree with the commenter that not enough detail about the BART and non-BART units is provided in the SIP submittal. IDEQ appropriately determined that the facility is BART-eligible. SO
The comment submitted by SAFE, and endorsed by SOS NW, indicates that stronger controls on field burning are reasonable and cost-effective and can achieve some additional progress. SOS NW emphasizes that crop residue burning should not be left out of consideration when it comes to the regional haze plan. The comment from SAFE claims that Idaho's rationale for doing nothing seems to be that wildfires are responsible for most of the visibility problem at Class I areas in the State. SAFE offers additional details on agricultural burning, noting that the SIP submittal estimates a 54% reduction in fine particulate matter (PM
SAFE also points out that current Idaho regulation limits burn approvals to days when air quality levels are below 75% of any NAAQS. SAFE further noted that the IDEQ recently considered lifting the 75% of NAAQS limit for ozone, and that SAFE is therefore concerned that this would increase the amount of agricultural burning. To ensure the 75% of NAAQS limit remains effective in Idaho and as one way to limit the growth of agricultural burning from contributing to the deterioration of visibility in Class I areas, SAFE requests that EPA establish the limit as a federally enforceable limit in the Regional Haze SIP. The comment states that the long term strategy must contain enforceable emission limits, compliance schedules, and other measures as necessary to achieve the reasonable progress goals. The Shoshone-Bannock Tribes Air Quality Department adds that the strategy of permitting crop residue burns and other prescribed burns is to disperse the smoke by the prevailing winds, and although this reduces downwind concentrations, it increases haze on a regional scale and increases visibility impacts in downwind Class I areas, particularly in the fall when field burning is scheduled. The commenter asserts that the permit program for crop residue burning is allowing burning to increase with the new “Crop Residue Burning” section of IDEQ's rules, and is largely a registration program rather than a program with tools to monitor Class I impacts or safeguard Class I air sheds. The commenter indicates that the resulting haze from burning should be reviewed, modeled for impacts, and included in the long term strategy.
SAFE also commented that Idaho contributes significantly to visibility impairment in Montana and Wyoming Class I areas and that Yellowstone National Park, Bridger Wilderness, and Glacier National Park are all significantly off the target of achieving natural conditions by 2064. Referencing 40 CFR 51.308(d)(3)(ii), the comment contends that Idaho cannot demonstrate that it has included all measures necessary to improve visibility in these areas unless it places limits on field burning. Finally, the comment notes that there should be acreage restrictions on burning, and that there would be no special equipment to purchase and no hindrance to growing crops by using alternative methods to burning.
In response to comments concerning the State's claim that wildfire is responsible for most of the visibility problem and that the State should do more to control field burning, we note that the emissions from natural fire (i.e. wildfires) are indeed significantly greater than from anthropogenic fire, as shown in the emission inventory of the SIP submittal. Visibility impairment from fire of any type is primarily due to emissions of organic carbon and elemental carbon, and to a lesser extent, direct fine particulate emissions. As shown in Tables 8-4 through 8-6 in the SIP submittal, emissions from natural fires of all three of these pollutant constituents are from three to ten times
With regard to the comment concerning Idaho's contributions to visibility impairment at Class I areas in Montana and Wyoming and the need to further control crop residue burning, we note that Idaho appropriately satisfied the interstate consultation requirements of Section 51.308(d)(3)(i) of the Regional Haze Rule and collaborated extensively with Montana, Wyoming, and the EPA via numerous Western Regional Air Program (WRAP) forums. See Chapter 2 of the Idaho SIP submittal. Both Idaho and neighboring states agreed that the implementation of BART and other existing measures in state regional haze plans were sufficient, and that future consultation would address any new strategies or measures needed. Source apportionment modeling does show that Idaho contributes significant emissions of primary organic aerosol to the Class I areas in Montana and Wyoming. However, the majority of these emissions are due to natural fire and not anthropogenic fire. As shown in Figure 9-84 of the SIP submittal, anthropogenic burning in Idaho has the greatest impact in the Cabinet Mountain Wilderness Area in Montana, but even though Idaho contributes about 38% of the total primary organic aerosol at Cabinet Mountain Wilderness Area, of that, just 9% is from anthropogenic burning. (Most of the remaining primary organic aerosol emissions are from natural fire). Further, the 9% attributable to anthropogenic burning is projected to decrease to less than 5% in 2018. Also it is important to note that neither Montana nor Wyoming requested that Idaho reduce emissions when setting their reasonable progress goals. Contrary to what the commenter states, we believe Idaho is achieving its share of visibility progress at Class I areas in Montana and Wyoming.
Finally, the requirement prohibiting field burning when air quality is above 75% of any NAAQS is already a federally enforceable SIP measure. See 73 FR 44915 (August 1, 2008) (Final action approving Idaho's Revised Crop residue Disposal rules which included the 75% of NAAQS limit).Thus, adding the 75% limit to the Regional Haze SIP would provide no additional authority to regulate burning. Additionally, as described briefly in the Regional Haze SIP submittal Section 12.65 regarding the Long Term Strategy, crop residue burning is regulated with a permit-by-rule process which EPA has previously approved in the SIP.
EPA is approving the remaining portions of the Idaho Regional Haze SIP submission of October 25, 2010, as meeting the requirements set forth in section 169A and 169B of the Act and in 40 CFR 51.308 for preventing any future and remedying any existing visibility impairment in mandatory Class I areas caused by emissions of air pollutants from numerous sources located over a wide geographical area. Specifically included is EPA's approval of the reasonable progress provisions and the long term strategies.
Idaho has not demonstrated authority to implement and enforce IDAPA chapter 58 within “Indian Country” as defined in 18 U.S.C. 1151.
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
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• 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
• 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).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian Country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. Consistent with EPA policy, EPA nonetheless provided a consultation opportunity to Tribes in Idaho, Oregon, and Washington in letters dated January 14, 2011. EPA received one request for consultation, and we have followed up with that Tribe.
The Congressional Review Act, 5 U.S.C. 801
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 January 7, 2013. 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))
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Visibility, and Volatile organic compounds.
Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(e) * * *
(g) * * *
(2) EPA approves the remaining portions of the Regional Haze SIP revision submitted by the Idaho Department of Environmental Quality on October 25, 2010, as meeting the requirements of the Clean Air Act section 169A and 169B and 40 CFR 51.308.