[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
----------------------------------------------------------------------------------------------------------------
        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.
----------------------------------------------------------------------------------------------------------------

    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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