Protecting Public Health and the Environment.

Air Quality: Docket No. 58-0101-1604 - Temporary Rule

Rulemaking initiated as an outgrowth of the negotiations conducted under Docket No. 58-0101-1601 to develop an interim rule that allows the Crop Residue Burning Program to continue operating under the 2008 ozone NAAQS until EPA approves the new 90% ozone level in a revised State Implementation Plan.

Status of Rulemaking

Rule adopted by Board on March 16, 2017 with an effective date of March 17, 2017.

Rulemaking Documents

This rule was promulgated under Docket No. 58-0101-1604 (interim rule) and will be effective on March 17, 2017 until February 28, 2018 (available here). On February 28, 2018, the rule promulgated under Docket No. 58-0101-1601 (90% ozone NAAQS rule) will become effective and is available at www.deq.idaho.gov/58-0101-1601.

March 2017 Board Meeting

Effective Date

March 17, 2017 until February 28, 2018

Overview

The Crop Residue Burning (CRB) Program has been implemented by DEQ since 2008. One aspect of the program requires that, prior to approving a crop residue burn, DEQ must determine that 1) air quality is not exceeding 75% of any National Ambient Air Quality Standard (NAAQS), and 2) air quality is not projected to exceed such level during the next 24 hours. Fine particulate matter (PM2.5) is the pollutant most directly affected by crop residue burning. There are days when PM2.5 concentrations are not a concern, but ozone concentrations exceed or are projected to exceed 75% of the ozone NAAQS.

In 2015, the U.S. Environmental Protection Agency (EPA) reduced the ozone NAAQS from 75 ppb to 70 ppb. The ozone NAAQS reduction is included in DEQ’s incorporation by reference rule docket 58-0101-1603. As a result of the ozone NAAQS reduction, there would be fewer days when DEQ could approve crop residue burns despite the fact that 1) the weather conditions exhibit good smoke dispersion characteristics, and 2) DEQ technical staff expect the burns to have minimal impact on ambient ozone concentrations (NAAQS). Therefore, burning may not be allowed on good burn days even when the burn is not predicted to cause or significantly contribute to a violation of the ozone NAAQS.

Through the negotiated rulemaking process, DEQ developed a proposed rule that gives DEQ the authority to allow crop residue burning when ozone levels are not exceeding, or expected to exceed, 90% rather than 75% of the ozone NAAQS. This new 90% level is still protective of the ozone NAAQS, and also provides farmers the ability to burn while following smoke management best practices. This rule will be promulgated separately under Docket No. 58-0101-1601. As an outgrowth of the negotiations, DEQ also developed an interim rule that allows the CRB Program to continue operating under the 2008 ozone NAAQS until EPA approves the new 90% ozone level in a revised State Implementation Plan (SIP). This rule will be promulgated under Docket No. 58-0101-1604.

Before the Board of Environmental Quality (Board) can adopt the rule, it is necessary to revise Idaho Code § 39-114 for consistency with the revisions in this proposed rule docket. DEQ intends to submit draft proposed legislation to the 2017 Legislature. If the legislation is passed by the legislature and approved by the governor, it will become effective immediately. DEQ will then present the final rule proposal to the Board for adoption.

Interim Rule Proposed Under Rule Docket 58-0101-1604

The proposed revisions in rule docket 58-0101-1604 allow that, for purposes of the ozone NAAQS, the 2008 NAAQS shall apply. The adoption of this proposed rule would maintain the status quo for the 2017 burn season, allowing the CRB Program to utilize the 2008 ozone NAAQS until EPA approves the SIP revision for rule docket 58-0101-1601. It is anticipated that EPA will approve the SIP revision by February 28, 2018. Without using the 2008 ozone NAAQS, the reduction in burn days could cause considerable economic hardship to grass seed growers for no environmental or public health benefit.

90% Ozone NAAQS Proposed Under Rule Docket 58-0101-1601

The proposed revision in rule docket 58-0101-1601 changes the percent of the ozone NAAQS, upon which no crop residue burning is allowed, from 75% to 90%. If the rule is adopted by the Board, DEQ will prepare a technical document demonstrating that the change from 75% to 90% will not cause or significantly contribute to a violation of the ozone NAAQS. DEQ will then submit the rule and technical document to EPA as a SIP revision under Section 110 of the Clean Air Act. Contingent upon EPA SIP approval, Subsection 621.01 adopted under rule docket 58-0101-1601 would take effect on February 28, 2018 replacing Subsection 621.01 adopted under rule docket 58-0101-1604. Consequently, state law and Idaho’s federally approved SIP will mirror each other at that time.

Farmers desiring to burn crop residue, members of the regulated community who may be subject to Idaho's air quality rules, special interest groups, Idaho State Department of Agriculture, tribes, public officials, and members of the public who have an interest in the regulation of air emissions from sources in Idaho may be interested in commenting on this proposed rule. The proposed rule text is in legislative format. Language the agency proposes to add is underlined. Language the agency proposes to delete is struck out. It is these additions and deletions to which public comment should be addressed.

After consideration of public comments, and after passage of companion legislation revising Idaho Code § 39-114, DEQ intends to present the final rule proposal to the Board for adoption of a temporary/pending rule. If adopted by the Board, temporary rule docket 58-0101-1604 will become effective immediately and temporary rule docket 58-0101-1601 will become effective February 28, 2018. The rules will then be submitted to the 2018 Legislature for review and approval. Pursuant to Idaho Code § 67-5226(1)(c), the governor has found that adoption of a temporary rule is appropriate as it will provide greater flexibility to farmers using the tool of crop residue burning while still following good smoke management best practices.

Public Comment Opportunities

Submit all written comments by mail, fax or email to:

Paula Wilson
Idaho Department of Environmental Quality
1410 N. Hilton, Boise, ID 83706
Fax: (208) 373-0481, paula.wilson@deq.idaho.gov

Comment Deadline

October 11, 2016

Public Hearing

October 11, 2016, 3 p.m.
DEQ State Office
Conference Room A
1410 N. Hilton, Boise

Written Public Comments

Submitted by Date Received
Nezperce Prairie Grass Growers Association (NPGGA) 10/11/16
Idaho Farm Bureau Federation 10/11/16
Idaho Grain Producers Association (IGPA) 10/11/16

Transcript of October 11, 2016 Public Hearing on Proposed Rule

Commenter: Marc Fleisher, Save Our Summers NW

 

Negotiated Rulemaking

The text of the proposed rule was drafted based on discussions held and concerns raised during negotiations conducted pursuant to Idaho Code § 67-5220 and IDAPA 58.01.23.810-815. This proposed rule is an outgrowth of the negotiated rulemaking conducted under Docket No. 58-0101-1601. The Notice of Negotiated Rulemaking for Docket No. 58-0101-1601 was published in the May 2016 issue of the Idaho Administrative Bulletin, and a preliminary draft rule was made available for public review. Meetings were held on May 18, June 23, July 20, and July 27, 2016. Members of the public participated in the negotiated rulemaking process by attending the meetings and by submitting written comments. The negotiated rulemaking record, which includes the negotiated rule drafts, written public comments, documents distributed during the negotiated rulemaking process, and the negotiated rulemaking summary, is available here.

All comments received during the negotiated rulemaking process were considered by DEQ when making decisions regarding development of the rule. At the conclusion of the negotiated rulemaking process, DEQ formatted the final draft (Draft No. 4) for publication as a proposed rule. DEQ is now seeking public comment on the proposed rule.


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Staff Contacts

Mobile and Area Source Program Manager
Mary Anderson
DEQ State Office
Air Quality Division
1410 N. Hilton
Boise, ID 83706
(208) 373-0202
mary.anderson@deq.idaho.gov