[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.

0
Part 52 of 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.

[[Page 9462]]

Subpart U--Maine

0
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.

0
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