[Federal Register Volume 73, Number 35 (Thursday, February 21, 2008)]
[Rules and Regulations]
[Pages 9459-9462]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-3246]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R01-OAR-2005-ME-0008; A-1-FRL-8526-5]
Approval and Promulgation of Air Quality Implementation Plans;
Maine; Open Burning Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by the State of Maine. This revision limits open burning of
construction and demolition debris to on-site burning for the disposal
of wood wastes and painted and unpainted wood, and adds restrictions to
open burning conducted for training, research, and recreational
purposes. The revised rule also defines which open-burning recreational
activities do not require a permit, such as residential use of outdoor
grills and fireplaces, and recreational campfires while the ground is
covered in snow. The revised rule eliminates provisions that allowed
permits to be issued for open burning of rubbish where no rubbish
collection is available or ``reasonably located'' and where ``there is
no other suitable method for disposal.'' In addition, the revised rule
includes a note referencing reasonable precautions required by Maine
statute to prevent the introduction of lead into the environment from
lead-based paint.
This action will have a beneficial effect on air quality in Maine
by reducing emissions of particulate matter, air toxics, and other
pollutants, especially from the burning of lead-painted wood, plastics,
metals, and other non-wood materials. This action is being taken in
accordance with the Clean Air Act.
DATES: This direct final rule will be effective April 21, 2008, unless
EPA receives adverse comments by March 24, 2008. If adverse comments
are 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: Submit your comments, identified by Docket ID Number EPA-
R01-OAR-2005-ME-0008 by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Fax: (617) 918-0047.
4. Mail: ``Docket Identification Number EPA-R01-OAR-2005-ME-0008,''
Anne Arnold, U.S. Environmental Protection Agency, EPA New England
Regional Office, One Congress Street, Suite 1100 (mail code CAQ),
Boston, MA 02114-2023.
5. Hand Delivery or Courier. Deliver your comments to: Anne Arnold,
Manager, Air Quality Planning Unit, Office of Ecosystem Protection,
U.S. Environmental Protection Agency, EPA New England Regional Office,
One Congress Street, 11th floor, (CAQ), Boston, MA 02114-2023. Such
deliveries are only accepted during the Regional Office's normal hours
of operation. The Regional Office's official hours of business are
Monday through Friday, 8:30 to 4:30, excluding legal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-
2005-ME-0008. EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit through
www.regulations.gov, or e-mail, information that you consider to be CBI
or otherwise protected. The www.regulations.gov Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through
[[Page 9460]]
www.regulations.gov your e-mail address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disk or CD-ROM you
submit. 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. Electronic files should avoid the use of special
characters, any form of encryption, and be free of any defects or
viruses.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy at Office of Ecosystem Protection, U.S. Environmental
Protection Agency, EPA New England Regional Office, One Congress
Street, Suite 1100, Boston, MA. EPA requests that if at all possible,
you contact the contact listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 to 4:30, excluding
legal holidays.
In addition, copies of the state submittal and EPA's technical
support document are also available for public inspection during normal
business hours, by appointment at the Bureau of Air Quality Control,
Department of Environmental Protection, First Floor of the Tyson
Building, Augusta Mental Health Institute Complex, Augusta, ME 04333-
0017.
FOR FURTHER INFORMATION CONTACT: Alison C. Simcox, Air Quality Planning
Unit, U.S. Environmental Protection Agency, EPA New England Regional
Office, One Congress Street, Suite 1100 (CAQ), Boston, MA 02114-2023,
telephone number (617) 918-1684, fax number (617) 918-0684, e-mail
[email protected].
SUPPLEMENTARY INFORMATION: Organization of this document. The following
outline is provided to aid in locating information in this preamble.
I. Background and Purpose
II. Summary of SIP Revision
III. Final Action
IV. Statutory and Executive Order Reviews
I. Background and Purpose
On April 27, 2005, the State of Maine submitted a formal revision
to its State Implementation Plan (SIP). The SIP revision consists of
amendments to Maine's Chapter 102 Open Burning Rule, which address all
concerns that EPA had expressed to the Maine Department of
Environmental Protection (ME DEP) about previous amendments and
proposed amendments to the rule.
Maine's Chapter 102 Open Burning Rule was first adopted in January
1972 to minimize environmental impacts from open burning in Maine. EPA
New England approved this rule into the Maine SIP on May 31, 1972 (37
FR 10842). Following adoption by ME DEP of an amended version of the
rule in December 2002, EPA was especially concerned about language in
the rule that could be interpreted to allow outdoor burning of any type
construction and demolition debris, including plastics, rubber,
styrofoam, metals, food wastes, or chemicals.
In 2003, the state legislature amended 12 MRSA section 9324 to
change language in the statute from ``out-of-door burning of wood
wastes * * * and construction and demolition debris'' to ``out-of-door
burning of wood wastes * * * from construction and demolition debris,''
thus addressing EPA's concern about burning of inappropriate, non-wood
materials.
Subsequently, ME DEP amended Chapter 102 to be consistent with the
revised legislation and with other EPA comments, including adding a
reference to reasonable precautions required by 38 MRSA section 1296 to
prevent the introduction of lead into the environment from lead-based
paint. ME DEP adopted these amendments in March 2005, and submitted
them to EPA for inclusion in the Maine SIP on April 27, 2005.
II. Summary of SIP Revision
The revised Chapter 102 prohibits ``open burning'' in all areas of
the State, except for the types of open burning expressly described
within the chapter. The revised Chapter 102 uses the terms ``outdoor
burning'' and ``out-of-door burning'' synonymously with the term ``open
burning,'' which ME DEP defined in Chapter 100. ME DEP confirmed with
EPA that the state interprets these terms to be synonymous, and EPA is
basing its approval of this regulation on that interpretation.
The revised Chapter 102 rule has a number of changes that make it
more stringent than the original 1972 rule (37 FR 10842). The most
significant of these changes include added restrictions to open burning
of construction and demolition debris, and to open burning for
training, research, and recreational purposes. Previously, open burning
was permitted for ``all debris'' from demolition of any building and
for certain types of land clearing (e.g., building highways, power
lines, commercial, and industrial buildings). The revised rule
specifies that the only type of construction and demolition debris that
can be burned on site is ``for the disposal of wood wastes and painted
and unpainted wood from construction and demolition debris.'' Both
previous and current versions of the rule require a permit for the
burning of construction and demolition debris.
The 1972 rule contains an exemption that allows (with a permit)
``open burning for training, research and recreational purposes except
that fires for recreational purposes on a person's own property are not
required to obtain a permit.'' The revised rule adds further
restrictions to these activities. Specifically, recreational campfires
kindled when the ground is not covered by snow require a permit, as do
fires in conjunction with holiday and festive celebrations. Burning for
``training'' is now more strictly defined as being limited to ``bona
fide instruction and training of municipal or volunteer firefighters
pursuant to Maine Revised Statutes Title 26, section 2102 and
industrial fire fighters in methods of fighting fires when conducted
under the direct control and supervision of qualified instructors and
with a written objective for the training.'' In addition, ``structures
burned for instructional purposes must first be emptied of waste
materials that are not part of the training objective.''
The revised rule also strengthens the 1972 rule by defining open
burning ``recreational'' activities that do not require a permit; these
activities are now limited to: (1) Residential use of outdoor grills
and fireplaces for recreational purposes; (2) recreational campfires
kindled when the ground is covered by snow or on frozen bodies of
water; and (3) the use of outdoor grills and fireplaces for
recreational purposes at commercial campgrounds that are located in
organized towns and licensed by the Department of Human Services. The
rule also eliminates provisions that allowed permits to be issued for
open burning of rubbish where no rubbish collection is available or
``reasonably located'' and where ``there is no other suitable method
for disposal.'' Additionally, in response to EPA comments, ME DEP has
added a note to
[[Page 9461]]
the rule referencing reasonable precautions required by Maine statute
38 MRSA section 1296 to prevent the introduction of lead into the
environment from lead-based paint.
III. Final Action
EPA is approving amendments to the Maine Chapter 102 Open Burning
Rule, and incorporating the revised rule into the Maine SIP.
EPA has determined that the revised Maine Chapter 102 Open Burning
Rule addresses all concerns expressed by EPA, is significantly more
stringent and detailed than the existing EPA-approved rule, and will
have a beneficial effect on air quality by reducing emissions of
particulate matter, air toxics, and other pollutants, especially from
the burning of lead-painted wood, plastics, metals, and other non-wood
materials. This action is being taken in accordance with the Clean Air
Act.
EPA is publishing this action without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the SIP revision. This rule
will be effective April 21, 2008, without further notice unless the
Agency receives relevant adverse comments by March 24, 2008.
If EPA receives such comments, then EPA will publish a notice
withdrawing the final rule and informing the public that the rule will
not take effect. All public comments received will then be addressed in
a subsequent final rule based on the proposed rule. EPA will not
institute a second comment period on the proposed rule. All parties
interested in commenting on the proposed rule should do so at this
time. If no such comments are received, the public is advised that this
rule will be effective on April 21, 2008, and no further action will be
taken on the proposed rule. 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.
IV. 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), because it 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 approves a state rule
implementing a Federal standard.
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. 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.
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 April 21, 2008. Interested
parties should comment in response to the proposed rule rather than
petition for judicial review, unless the objection arises after the
comment period allowed for in the proposal. 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, Lead, Particulate matter, Volatile organic compounds.
Dated: January 16, 2008.
Robert W. Varney,
Regional Administrator, EPA New England.
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Part 52 of chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
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1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
[[Page 9462]]
Subpart U--Maine
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2. Section 52.1020 is amended by adding paragraph (c)(61) to read as
follows:
Sec. 52.1020 Identification of plan.
* * * * *
(c) * * *
(61) Revisions to the State Implementation Plan submitted by the
Maine Department of Environmental Protection on April 27, 2005.
(i) Incorporation by reference.
(A) Chapter 102 of Maine Department of Environmental Protection
Rules, entitled ``Open Burning,'' effective in the State of Maine on
April 25, 2005.
(B) State of Maine MAPA 1 form which provides certification that
the Attorney General approved the rule as to form and legality, dated
April 12, 2005.
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3. In Sec. 52.1031, Table 52.1031 is amended by adding a new entry to
existing state citation ``102'' to read as follows:
Sec. 52.1031 EPA-approved Maine regulations.
* * * * *
Table 52.1031.--EPA-Approved Rules and Regulations
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Date Date
State citation Title/subject adopted by approved by Federal Register 52.1020
State EPA citation
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* * * * * * *
102............. Open Burning..... 3/17/05 2/21/08 [Insert Federal (c)(61) .................
Register page
number where the
document begins].
* * * * * * *
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Note 1. The regulations are effective statewide unless stated otherwise in comments section.
[FR Doc. E8-3246 Filed 2-20-08; 8:45 am]
BILLING CODE 6560-50-P