[Federal Register Volume 87, Number 226 (Friday, November 25, 2022)]
[Proposed Rules]
[Pages 72432-72434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25584]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[EPA-R10-OAR-2020-0361; FRL-5565-03-R10]
RIN 2012-AA02


Federal Implementation Plans Under the Clean Air Act for Indian 
Reservations in Idaho, Oregon, and Washington; Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; correction.

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SUMMARY: On October 12, 2022, the Environmental Protection Agency (EPA) 
published a proposed rulemaking to revise the Federal Air Rules for 
Reservations (FARR), a collection of Federal Implementation Plans 
(FIPs) under the Clean Air Act for Indian reservations in Idaho, 
Oregon, and Washington. In the preamble of that publication, the 
description of the proposed changes to one of the rules in the FARR, 
the general open burning rule, was inadvertently replaced with a 
duplicate of the description of the proposed changes to a different 
rule. We are publishing this document to supply the correct preamble 
description of the proposed changes to the general open burning rule to 
the public. We note that there are no corrections to the proposed 
amendments to the rule language.

DATES: Comments for the proposed rule that was published in the Federal 
Register on October 12, 2022 (87 FR 61870) must be received on or 
before January 10, 2023.

ADDRESSES: You may submit your comments, identified by Docket ID No. 
EPA-R10-OAR-2020-0361, using the Federal eRulemaking Portal at https://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
www.regulations.gov. The EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and

[[Page 72433]]

should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. For additional information 
on submitting comments, please see our October 12, 2022, Federal 
Register publication at 87 FR 61870. Please contact the individual 
listed in the FOR FURTHER INFORMATION CONTACT section if you need 
assistance.

FOR FURTHER INFORMATION CONTACT: Sandra Brozusky, Air and Radiation 
Division, EPA Region 10, 1200 Sixth Avenue, Suite 155, Seattle, WA 
98101-1128, (206) 553-5317, [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    On October 12, 2022 (87 FR 61870), the EPA published a proposed 
rulemaking to revise the Federal Air Rules for Reservations (FARR), a 
collection of Federal Implementation Plans (FIPs) under the Clean Air 
Act for Indian reservations in Idaho, Oregon, and Washington. In the 
preamble of that document on page 61878, column 2, where the EPA 
described the proposed changes to the regulatory requirements in the 
Code of Federal Regulations (CFR) at 40 CFR 49.131 General rule for 
open burning, the EPA inadvertently duplicated the text describing the 
proposed changes to a different rule. We are publishing this document 
to supply the correct preamble text to the public. We note that there 
are no corrections to the proposed amendments to the rule language in 
40 CFR 49.131. For additional details on the proposed rulemaking, 
please see our October 12, 2022, Federal Register publication at 87 FR 
61870.

Correction

    In the proposed rule document FR Doc. 2022-20486 (87 FR 61870, 
October 12, 2022), on page 61878, in the second column, correct the 
document to replace the existing last paragraph with the following:
    Section 49.131 General rule for open burning. This section limits 
the types of materials that can be openly burned within an Indian 
reservation to control emissions of particulate matter. The EPA is 
proposing to simplify the approach to the General rule for open burning 
from one that prohibits the open burning of a long list of materials to 
one that identifies the materials that can be openly burned. The 
proposed revisions prohibit open burning with exceptions for certain 
materials, during specific situations, and under certain conditions. 
The intent of this revision is to more clearly delineate the materials 
that may be burned, thereby simplifying the regulatory scheme for the 
public, the EPA, and delegated Tribes. The proposed revisions to 40 CFR 
49.131 will better ensure that only those materials that do not 
significantly degrade air quality are allowed to be burned.
    More specifically, with limited exceptions, the proposed revisions 
prohibit all open burning except the open burning of natural 
vegetation; untreated wood; paper products generated and burned on site 
at a single-family residence or residential building with four or fewer 
dwelling units; and paper and manufactured fire starters used to start 
a fire. With this proposed revision, certain definitions, such as 
``garbage,'' are no longer used and are being eliminated. The EPA is 
proposing to define ``untreated wood'' as wood of any species that has 
not been chemically impregnated, painted, coated, or similarly modified 
to prevent weathering and deterioration.
    The EPA is also proposing to expand the scope of the regulated 
entities under this rulemaking to include the lessee of the property on 
which open burning is conducted to ensure parties that may be 
responsible for burning decisions on a given property are responsible 
for complying with the requirements of this section. As under the 
existing rule, all but specified exempt open burning continues to be 
prohibited when a burn ban, air stagnation advisory, air pollution 
alert, air pollution warning, or air pollution emergency is declared 
due to deteriorating air quality. The EPA is however, proposing to add 
language clarifying that, in addition to extinguishing a fire and 
withholding additional material from a fire when such an event is 
declared, a person must also discontinue lighting a fire (e.g., cease 
using a drip torch to light the edge of an agricultural field).
    The current exemptions from the prohibition on open burning remain, 
with some revisions. Open fires continue to be exempt in all respects 
if set for cultural or traditional purposes, including fires within 
structures such as sweat houses or sweat lodges. The proposed revisions 
clarify that fires set for cultural or traditional purposes in smoke 
houses are covered by this exclusion. Open burning for the disposal of 
diseased animals or other material by order of a public health official 
continues to be exempt except during burn bans and specified periods of 
deteriorating air quality, as under the current rule. In addition, we 
retain exceptions for outdoor fires used for the training of 
firefighters and the disposal of fireworks by Tribal governments. Both 
firefighting training fires and fireworks disposal fires continue to 
require prior written permission from the Regional Administrator to 
allow for the burning of materials not otherwise authorized under the 
open burning rule. The EPA is proposing to add language to the 
provisions for fire fighter training fires to ensure that EPA's 
requirements for removal of asbestos containing materials are met prior 
to burning a structure and also to revise the deadline for requesting 
permission to be the same 10 days as the notification requirement in 
the asbestos rule (see 40 CFR part 61, subpart M).
    In addition, if the large open burning permit rule applies on the 
Indian reservation where the burn is occurring and the burn meets the 
definition of ``large open burn,'' outdoor fires used for the training 
of firefighters and outdoor fires used for the disposal of fireworks by 
Tribal governments also require a large open burning permit under 40 
CFR 49.132 Rule for large open burning permits to ensure air quality 
concerns are taken into account in deciding when to allow such burns. 
In the unlikely event such burns do not meet the definition of a 
``large open burn,'' a small open burn permit would not be required for 
such burns. As revised, the General rule for open burning clarifies 
that requests for permission for fires for the disposal of fireworks is 
limited to Tribes, but no longer limits such fires to a single outdoor 
fire per year. The proposed revisions also provide increased 
specificity of the approval process for such burns.
    An exemption for ``cooking fires'' has been added, along with a 
definition of that term, to distinguish such fires from ``recreational 
fires,'' which term is now also defined. A cooking fire is an open burn 
in a fire pit or outdoor appliance for the purpose of cooking food and 
may burn firewood, charcoal briquettes, wood pellets, or other fuels 
suitable for cooking food. This list of permissible fuels for cooking 
fires is broader than under the General rule for open burning. Because 
cooking fires are exempt from the rule, cooking fires are not subject 
to the prohibition that applies to recreational fires during burn bans. 
The proposed revisions define recreational fires as campfires and 
bonfires burning

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materials authorized under the General rule for open burning for 
pleasure or celebratory purposes but excludes cooking fires and fires 
used for debris disposal purposes. Although recreational fires are no 
longer included in the list of exemptions, there is no substantive 
difference in how they are addressed under the proposed revisions. As 
under the current rule, the materials that may be burned in a 
recreational fire have not changed and recreational fires remain 
prohibited when burn bans are in effect. Recreational fires remain 
exempt from the more specific requirements in paragraph (e)(1) of this 
section that apply to open burns, such as the provisions regarding 
smoldering.
    The EPA has also added a proposed exemption for fires set as part 
of a firefighting strategy (e.g., back burn, fire break, or safety 
perimeter burn), but only if approved by the appropriate fire safety 
jurisdiction and under an emergency or incident command situation. Such 
fires may reduce the duration or size of uncontrolled fires and 
therefore may have a positive impact on levels of particulate matter 
overall.
    The EPA is also proposing revisions to the provisions of this 
rulemaking that specify the requirements for conducting open burning. 
The proposed revisions clarify that a burn ban declared by the Regional 
Administrator remains in effect until the Regional Administrator makes 
a new determination and terminates the burn ban, as well as to describe 
the methods the EPA uses to announce a burn ban and its termination. 
The EPA is also adding language to clarify that a burn ban can be 
declared for specific geographic areas within an Indian reservation. We 
are also clarifying that burn bans are based on the 24-hour PM NAAQS 
and that the time period for projections of air quality levels is a 
maximum of 72 hours. These clarifications are consistent with the 
intent of the rule and how it has been implemented in practice.
    The EPA has heard concerns that the criterion for triggering burn 
bans, specifically 75% of any 24-hour PM NAAQS, could be overly 
conservative and impede the increased use of prescribed fire to help 
reduce the risk of wildfire within the Indian reservations covered by 
the FARR by reducing the number of available burn days. As mentioned 
previously, the EPA is currently reviewing the PM NAAQS and there are 
additional concerns that if that review results in a lower level of the 
24-hour PM NAAQS, the number of available burn days could be further 
reduced.
    The purpose of a burn ban is to protect human health and air 
quality by preventing emissions from open burning from pushing PM 
concentrations above the level of the NAAQS, so it is important to call 
a burn ban before concentrations reach the level of the NAAQS. The EPA 
acknowledges that there are a number of other criteria for declaring 
burn bans that could also accomplish this objective. The EPA is 
therefore soliciting comment on changing the criteria to whether PM 
concentrations exceed or are projected to exceed the NAAQS anytime 
during the next 72 hours. Because the meteorological forecasting tools 
and availability of real-time air monitoring data have improved 
significantly since 2005 when the FARR was promulgated, relying on 
projections of the PM NAAQS, rather than a percentage below the PM 
NAAQS, for calling burn bans may also provide reasonable assurance that 
emissions from open burning will not cause or contribute to an 
exceedance of the PM NAAQS. This revision would potentially reduce the 
number of burn bans and thus increase the available days during which 
prescribed burning could be conducted.
    The EPA is also proposing revisions to account for the fact that, 
in certain defined instances (e.g., multi-day fires) and with the 
appropriate permits, a fire is allowed to smolder when it would have 
less impact on air quality than putting the fire out and relighting it. 
The revisions would also explicitly require that a person 18 years of 
age or older must be in attendance of the fire at all times; that there 
be means available for extinguishing the fire, such as water or 
chemical fire suppressant; and that a fire be extinguished if safe to 
do so, at the request of the EPA based on a determination that the open 
burning is causing or has the potential to cause or contribute to an 
exceedance of a national ambient air quality standard. When relevant, 
the EPA will also request that a fire be extinguished if safe to do so, 
based on a determination that the open burning is causing any other 
adverse impact on air quality. These simple precautions help ensure 
that fires are responsibly managed, considering changing adverse 
meteorological conditions, other scheduled burning activities in the 
surrounding area and other factors that could impact a burn. For burns 
that could significantly impair visibility on roadways, coordination 
with traffic safety authorities must take place before igniting a burn 
in order to provide an opportunity for such authorities to require 
appropriate transportation safety measures. ``Small open burns'', as 
defined in 40 CFR 49.123, are exempt from this requirement. Because of 
the limited size of small open burns, the amount of material consumed 
would not be expected to cause a plume large enough and dense enough to 
impair visibility on roadways.
    Finally, the EPA is clarifying that nothing in the open burning 
rule exempts or excuses any person from complying with applicable laws 
and ordinances of Tribal governments. This was already encompassed in 
the language in the existing rule stating that nothing in the open 
burning rule ``exempts or excuses any person from complying with 
applicable laws and ordinances of . . . other governmental 
jurisdictions.'' The proposed revision is being made for clarity here, 
as well as in the following burn permit sections.\4\
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    \4\ The EPA also notes that nothing in the FARR or the proposed 
revisions restricts the exclusion of air quality monitoring data 
influenced by exceptional events as provided in 40 CFR 50.14.

    Dated: November 17, 2022.
Casey Sixkiller,
Regional Administrator, Region 10.
[FR Doc. 2022-25584 Filed 11-23-22; 8:45 am]
BILLING CODE 6560-50-P