[Federal Register Volume 71, Number 94 (Tuesday, May 16, 2006)]
[Rules and Regulations]
[Pages 28270-28274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4516]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2006-0272; FRL-8159-7]
Revisions to the Arizona State Implementation Plan, Arizona
Department of Environmental Quality, Pima County Department of
Environmental Quality, and Pinal County Air Quality Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to approve revisions to the
Arizona Department of Environmental Quality (ADEQ), Pima County
Department of Environmental Quality (PCDEQ), and Pinal County Air
Quality Control District (PCAQCD) portions of the Arizona State
Implementation Plan (SIP). These revisions concern particulate matter
(PM-10) emissions from open burning. We are approving local rules that
regulate this emission source under the Clean Air Act as amended in
1990 (CAA or the Act).
DATES: This rule is effective on July 17, 2006 without further notice,
unless EPA receives adverse comments by June 15, 2006. If we receive
such comments, we will publish a timely withdrawal in the Federal
Register to notify the public that this direct final rule will not take
effect.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2006-0272, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions.
E-mail: [email protected].
Mail or deliver: Andrew Steckel (Air-4), U.S.
Environmental Protection Agency Region IX, 75 Hawthorne Street, San
Francisco, CA 94105.
Instructions: All comments will be included in the public docket
without change and may be made available online at http://www.regulations.gov, including any personal information provided,
unless the comment includes Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute.
Information that you consider CBI or otherwise protected should be
clearly identified as such and should not be submitted through http://www.regulations.gov or e-mail. http://www.regulations.gov is an
``anonymous access'' system, and EPA will not know your identity or
contact information unless you provide it in the body of your comment.
If you send e-mail directly to EPA, your e-mail address will be
automatically captured and included as part of the public comment. If
EPA cannot read your comment due to technical difficulties and cannot
contact you for clarification, EPA may not be able to consider your
comment.
Docket: The index to the docket for this action is available
electronically at http://www.regulations.gov and in hard copy at EPA
Region IX, 75 Hawthorne Street, San Francisco, California. While all
documents in the docket are listed in the index, some information may
be publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available in either location
(e.g., CBI). To inspect the hard copy materials, please schedule an
appointment during normal business hours with the contact listed in the
FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Al Petersen, EPA Region IX, (415) 947-
4118, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
[[Page 28271]]
Table of Contents
I. The State's Submittal
A. What rules did the State submit?
B. Are there other versions of these rules?
C. What is the purpose of the submitted rule revisions?
II. EPA's Evaluation and Action
A. How is EPA evaluating the rules?
B. Do the rule revisions meet the evaluation criteria?
C. EPA Recommendations To Further Improve a Rule
D. Public Comment and Final Action
III. Statutory and Executive Order Reviews
I. The State's Submittal
A. What rules did the State submit?
Table 1 lists the rules we are approving with the dates that the
amended rules were adopted by the local air agencies and submitted by
the ADEQ.
Table 1.--Submitted Rules for Direct Final Approval
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Local agency Rule No. Rule title Amended Submitted
----------------------------------------------------------------------------------------------------------------
ADEQ........................ R18-2-602.................. Unlawful Open Burning...... 03/16/04 12/30/04
ADEQ........................ R18-2-1501................. Definitions................ 03/16/04 12/30/04
ADEQ........................ R18-2-1502................. Applicability.............. 03/16/04 12/30/04
ADEQ........................ R18-2-1503................. Annual Registration, 03/16/04 12/30/04
Program Evaluation and
Planning.
ADEQ........................ R18-2-1504................. Prescribed Burn Plan....... 03/16/04 12/30/04
ADEQ........................ R18-2-1505................. Prescribed Burn Requests 03/16/04 12/30/04
and Authorization.
ADEQ........................ R18-2-1506................. Smoke Dispersion and 03/16/04 12/30/04
Evaluation.
ADEQ........................ R18-2-1507................. Prescribed Burn 03/16/04 12/30/04
Accomplishment; Wildfire
Reporting.
ADEQ........................ R18-2-1508................. Wildland Fire Use: Plan, 03/16/04 12/30/04
Authorization, Monitoring;
Inter-Agency Consultation;
Status Reporting.
ADEQ........................ R18-2-1509................. Emission Reduction 03/16/04 12/30/04
Techniques.
ADEQ........................ R18-2-1510................. Smoke Management Techniques 03/16/04 12/30/04
ADEQ........................ R18-2-1511................. Monitoring................. 03/16/04 12/30/04
ADEQ........................ R18-2-1512................. Burner Qualifications...... 03/16/04 12/30/04
ADEQ........................ R18-2-1513................. Public Notification 03/16/04 12/30/04
Program; Regional
Coordination.
PCDEQ....................... 17.12.480.................. Open Burning Permits....... 10/19/04 12/30/04
PCAQCD...................... 3-8-700.................... General Provisions......... 10/27/04 12/30/04
PCAQCD...................... 3-8-710.................... Permit Provisions and 10/27/04 12/30/04
Administration.
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On June 30, 2005, the submittal of ADEQ Rule R18-2-602, ADEQ Rules
R18-2-1501 through R18-2-1513, PCDEQ Rule 17.12.480, and PCAQCD Rules
3-8-700 and 3-8-710 were determined by operation of law to meet the
completeness criteria in 40 CFR part 51 appendix V, which must be met
before formal EPA review.
B. Are there other versions of these rules?
We approved versions of ADEQ Rule R18-2-602 into the SIP on October
19, 1984 (49 FR 41026) and April 23, 1982 (47 FR 17485) as Rule R9-3-
402. We approved a version of combined ADEQ Rules R18-2-1501 through
R18-2-1513 into the SIP on April 23, 1982 (47 FR 17485) as Rule R9-3-
403.
We approved versions of PCAQCD Rules 3-8-700 and 3-8-710 into the
SIP on April 28, 2004 (69 FR 23103).
We approved a version of PCDEQ Rule 17.12.480 into the SIP as
combined Rules 204, section A; 204, section B; and Table 204 on April
16, 1982 (47 FR 16328).
C. What is the purpose of the submitted rule revisions?
Section 110(a) of the Clean Air Act (CAA) requires states to submit
regulations that control volatile organic compounds, nitrogen oxides,
particulate matter, and other air pollutants which harm human health
and the environment. These rules were developed as part of the local
air district's programs to control these pollutants.
The purposes of the revisions of ADEQ Rule R18-2-602 relative to
the SIP rule are as follows:
602.B: The rule adds 11 definitions for improved clarity.
602.D.1: The rule adds a list of types of burning that may
be permitted, to include construction burning, agricultural burning,
residential burning, prescribed burning, weed abatement, prevention of
fire hazard, and air curtain destructor operation.
602.D.3.e: The rule adds a requirement for an applicant to
state the emission reduction techniques that will be used to minimize
fire emissions.
602.D.3.f: The rule adds a requirement for daily reporting
on burns.
602.D.3.g: The rule adds a requirement for notification
before ignition of the burn.
602.D.3.h-o: The rule adds requirements to start burning
without black smoke, to attend the fire at all time, to have fire
extinguishing equipment on-site, to locate a waste burner over 50 feet
from any structure, to have a copy of the burn permit on site, to not
burn during a stagnation advisory or a time when Class I areas might be
affected, to not burn during an air pollution episode, and to allow the
Director or a public officer to extinguish the fire during unfavorable
conditions.
602.D.3.p: The rule adds a provision that failure to
obtain or comply with a permit is subject to civil or criminal
penalties.
602.G: The rule adds the option for the Director to
delegate burn permitting authority to a county, town, air pollution
control district, or fire district.
602.H: The rule adds a requirement for the Director to
hold an annual public meeting to discuss the open burning program and
emission reduction techniques.
The purposes of the revisions of Rules R18-2-1501 through R18-2-
1513 relative to the SIP rule are as follows:
1501: The rule adds 23 definitions for improved clarity.
1502: The rule extends the authority of ADEQ to regulate
prescribed burning to all areas of the state, all federal and state
land managers, and all private or municipal burners, except Indian
Trust lands.
1503: The rule adds to the information required for the
annual burn permits for planned burning. The rule adds a requirement
for annual evaluation meetings on past burn projects.
1504: The rule adds extensive requirements for a burn plan
to be submitted to ADEQ at least 14 days prior to ignition of the burn.
1505: The rule adds extensive requirements for a daily
burn plan to be submitted to ADEQ by at least 2 p.m. of the previous
business day. ADEQ may
[[Page 28272]]
approve or modify the burn plan based on a change in weather conditions
and potential impact on the public.
1506: The rule adds 12 additional factors for ADEQ to
evaluate daily burn plans for smoke dispersion on which ADEQ may
approve, approve with conditions, or disapprove the daily burn plan.
1507: The rule adds a requirement for the burner to submit
a burn accomplishment form to ADEQ by 2 p.m. the next day. Wildfires
burning more than 100 acres per day in timber or slash or more than 300
acres per day of brush or grass must be reported by the entity with
jurisdiction for the area of the fire.
1508: The rule adds extensive requirements for reporting
to ADEQ the beneficial use of a wildland fire incident exceeding 40
acres of timer or 250 acres of brush or grass.
1509: The rule adds the requirement that as many emission
reduction techniques (ERTs) as possible be used. A list of 16 potential
ERTs is provided.
1510: The rule adds the requirement that as many smoke
management techniques (SMTs) as possible be used. A list of 11
potential SMTs is provided.
1511: The rule adds extensive requirements for monitoring
air quality before or during a prescribed burn or a wildland fire
beneficial use incident, if necessary to assess smoke impacts.
1512: The rule adds a requirement for a prescribed-fire
boss to have formal training in fire and smoke management techniques.
1513: The rule adds a requirement for the ADEQ Director to
conduct a public education and awareness program in smoke management.
The purposes of the revisions of PCDEQ Rule 17.12.480 relative to
the SIP versions are as follows:
480.A: The rule adds one definition, deletes three
definitions, and changes the rule number.
480.C.1.f: The rule adds an exemption from permitting for
ceremonial destruction of flags.
480.C.2.a: The rule adds an exemption from permitting for
control of an active wildfire by a public official.
480.C.4: The rule adds an exemption from permitting for
prescribed burning by federal and state agencies.
480.D.1: The rule adds the allowance to burn with a permit
for agricultural burning and prescribed burning in the absence of a
federal or state land manager.
480.F: The rule adds the allowance to burn with a permit
and an approved waste burner household waste where no household waste
collection or disposal service is available on either farms of at least
40 acres or on a site where the nearest dwelling unit is at least 500
feet away.
480: The revised rule deletes an exemption from permitting
for the training of government officials in criminal-enforcement or
national-defense activities and deletes an exemption from permitting
for safety flares.
The purposes of the PCAQCD Rule 3-8-700 revisions relative to the
SIP rule are as follows:
700.A.4: The rule receives exemption provisions from
section 710.E for subterranean detonation of explosives, fireworks and
pyrotechnics, and adds an exemption provision for ceremonial
destruction of flags.
700.A.5: The rule adds the provision that fires set for
the disposal of materials shall be presumed to be larger than ``de
minimis.''
700.B: The rule adds 12 definitions for improved clarity.
700.C.1.c,d: The rule adds limitations on the amount to be
burned in one month for small-scale residential permits to less than 10
cubic yards of uncompacted material and for large-scale residential
permits to less than 20 cubic yards.
700.C.2.b,c: The rule adds limitations on the amount to be
burned in one month for small-scale commercial permits to less than 10
cubic yards of uncompacted material and for large-scale commercial
permits to less than 20 cubic yards.
700.C.2.d: The rule adds various requirements and
restrictions for commercial land-clearing permits of greater than 20
cubic yards. The rule also adds requirements for the use of air curtain
destructors for land clearing.
700.C.7: The rule adds a restriction of 20 cubic yards for
a bonfire permit at civic events.
700.D.2: The rule receives provisions for permit terms
from section 710.D and adds provisions for permit terms for training
exercises, commercial land clearing, and bonfires.
700.D.3: The rule adds the requirement that permits may be
suspended due to air stagnation advisory, air pollution emergency
episode, excessive visibility impairment, or extreme fire danger.
700.D.4: The rule adds the requirement for an applicant to
state the emission reduction techniques that will be used to minimize
fire emissions.
700.D.5: The rule adds permit conditions to limit burn
times, limit wind speed, constantly attend the fire, completely
extinguish the fire, start burning without black smoke, have fire
extinguishing equipment on-site, have a waste burner over 50 feet from
any structure, notify the fire agency of commencement of burning,
prevent smoke dispersion into a populated area, prevent visibility
impairment, not create a public nuisance, not burn when Class I areas
might be affected, not cause uncontrollable spreading of the fire, not
burn during a stagnation advisory, and not burn during an air pollution
episode.
700.E: The rule adds requirements for daily reporting on
burns.
700.G.1: The rule adds a ``no-burn'' restriction whenever
monitoring and forecasting indicates that the carbon monoxide ambient
standard is likely to be exceeded.
700.G.2: The rule adds a ``no-burn'' restriction by
operation of law whenever Maricopa Environmental Services Department or
Arizona Department of Environmental Quality declares a ``no-burn''
restriction in neighboring Maricopa County.
700.H: The rule adds a provision that failure to obtain or
comply with a permit is subject to civil or criminal penalties.
The purposes of the PCAQCD Rule 3-8-710 relative to the SIP rule
are as follows:
710.C: The rule adds a prohibition against storing
materials subject to spontaneous combustion, except coal, without
adequate fire-fighting facilities.
710.D. The rule transfers provisions for the term of a
permit to section 700.D.2.
710.E. The rule transfers provisions for exemptions to
section 700.A.4.
EPA's technical support document (TSD) has more information about
these rules.
II. EPA's Evaluation and Action
A. How is EPA evaluating the rules?
Generally, SIP rules must be enforceable (see section 110(a) of the
CAA) and must not relax existing requirements (see sections 110(l) and
193).
SIP rules in PM-10 nonattainment areas must require for major
sources reasonably available control measures (RACM), including
reasonably available control technology (RACT), in moderate PM-10
nonattainment areas (see section 189(a)) or must require for major
sources best available control measures (BACM), including best
available control technology (BACT), in serious PM-10 nonattainment
areas (see section 189(b)). ADEQ regulates a moderate PM-10
nonattainment area (see 40 CFR
[[Page 28273]]
part 81), so ADEQ Rules R18-2-602 and combined Rules R18-2-1501 through
R18-2-1513 must fulfill the requirements of RACM/RACT. PCDEQ regulates
a moderate PM-10 nonattainment area (see 40 CFR part 81), so PCDEQ Rule
17.12.480 must fulfill the requirements of RACM/RACT. PCAQCD regulates
a serious PM-10 nonattainment area (see 40 CFR part 81), so combined
PCAQCD Rules 3-8-700 and 3-8-710 must fulfill the requirements of BACM/
BACT.
Guidance and policy documents that we use to help evaluate specific
enforceability and RACT requirements consistently include the
following:
Requirements for Preparation, Adoption, and Submittal of
Implementation Plans, U.S. EPA, 40 CFR part 51.
PM-10 Guideline Document (EPA-452/R-93-008).
B. Do the Rule Revisions Meet the Evaluation Criteria?
We believe these rules are consistent with the relevant policy and
guidance regarding enforceability, SIP relaxations, BACM/BACT, and
RACM/RACT. The TSD has more information on our evaluation.
C. EPA Recommendations To Further Improve a Rule
The TSD describes additional revisions to PCAQCD Rule 3-8-700 that
do not affect EPA's current action but are recommended for the next
time the local agency modifies the rule.
D. Public Comment and Final Action
As authorized in section 110(k)(3) of the CAA, EPA is fully
approving ADEQ Rule R18-2-602, ADEQ Rules R18-2-1501 through R18-2-
1513, PCDEQ Rule 17.12.480, and PCAQCD Rules 3-8-700 and 3-8-710
because we believe they fulfill all relevant requirements. We do not
think anyone will object to this approval, so we are finalizing it
without proposing it in advance. However, in the Proposed Rules section
of this Federal Register, we are simultaneously proposing approval of
the same submitted rules. If we receive adverse comments by June 15,
2006, we will publish a timely withdrawal in the Federal Register to
notify the public that the direct final approval will not take effect
and we will address the comments in a subsequent final action based on
the proposal. If we do not receive timely adverse comments, the direct
final approval will be effective without further notice on July 17,
2006. This will incorporate these rules into the federally enforceable
SIP.
Please note that if EPA receives adverse comment on an amendment,
paragraph, or section of this rule and if that provision may be severed
from the remainder of the rule, EPA may adopt as final those provisions
of the rule that are not the subject of an adverse comment.
III. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it 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).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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 the 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. 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.
section 804(2).
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 July 17, 2006. 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.
[[Page 28274]]
Dated: March 22, 2006.
Wayne Nastri,
Regional Administrator, Region IX.
0
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart D--Arizona
0
2. Section 52.120 is amended by adding paragraph (c)(131) to read as
follows:
Sec. 52.120 Identification of plan.
* * * * *
(c) * * *
(131) The following amended rules were submitted on December 30,
2004, by the Governor's designee.
(i) Incorporation by reference. (A) Arizona Department of
Environmental Quality.
(1) Rule R18-2-602, adopted effective on May 14, 1979 and amended
effective on March 16, 2004.
(2) Rules R18-2-1501, R18-2-1502, R18-2-1503, R18-2-1504, R18-2-
1505, R18-2-1506, R18-2-1507, R18-2-1508, R18-2-1509, R18-2-1510, R18-
2-1511, R18-2-1512, and R18-2-1513, adopted effective on October 8,
1996 and amended effective on March 16, 2004.
(B) Pima County Department of Environmental Quality.
(1) Rule 17.12.480, amended on October 19, 2004.
(C) Pinal County Air Quality Control District.
(1) Rules 3-8-700 and 3-8-710, adopted effective on June 29, 1993
and amended on October 27, 2004.
* * * * *
[FR Doc. 06-4516 Filed 5-15-06; 8:45 am]
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