[Federal Register Volume 88, Number 142 (Wednesday, July 26, 2023)]
[Proposed Rules]
[Pages 48147-48150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15751]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2021-0752; FRL-9203-01-R10]


Air Plan Approval; WA; Yakima County Outdoor and Agricultural 
Burning Rule Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) proposes to approve 
into the Washington State Implementation Plan (SIP) the Yakima Regional 
Clean Air Agency's (YRCAA) revised outdoor and agricultural burning 
rule submitted by the State of Washington (Washington or the State) on 
October 14, 2021. The submitted revisions improve stringency, clarity 
and enforceability of the rule. The EPA is proposing to approve the SIP 
submission as consistent with Clean Air Act (Act or CAA) requirements.

DATES: Comments must be received on or before August 25, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2021-0752, at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from https://www.regulations.gov. The EPA may 
publish any comment received to its public docket. Do not 
electronically submit any information you consider to be Confidential 
Business Information (CBI) or other information the disclosure of which 
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 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 FURTHER INFORMATION CONTACT: Claudia Vaupel, (206) 553-6121, 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, it is intended to refer to the EPA.

I. Background for This Action

    Section 110 of the CAA requires states to develop and submit to the 
EPA a SIP to ensure that state air quality meets National Ambient Air 
Quality Standards (NAAQS). These ambient standards address six criteria 
pollutants: carbon monoxide, nitrogen dioxide, ozone, lead, particulate 
matter, and sulfur dioxide. Each federally approved SIP protects air 
quality primarily by addressing air pollution at its point of origin 
through air pollution regulations and control strategies. The EPA-
approved SIP provisions and control strategies are federally 
enforceable. States revise the SIP as needed and submit revisions to 
the EPA for review and approval.
    The EPA approved YRCAA's outdoor burning rules into the Washington 
SIP in 1998 as part of the Yakima area attainment plan for particulate 
matter with an aerodynamic diameter less than or equal to a nominal 10 
micrometers (PM10) \1\ On October 14, 2021, Washington 
submitted a SIP revision to the EPA that repeals and replaces the 1998 
SIP-approved outdoor burning rules for the Yakima area.
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    \1\ We note that the Yakima area has since been redesignated to 
attainment for PM10. (See 70 FR 6591, February 8, 2005).
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II. The State's Submission

    Washington's October 14, 2021, SIP submission significantly revised 
the SIP-approved outdoor burning rules for the Yakima area. 
Specifically, the SIP revision repeals and replaces the following rules 
from Regulation 1 of the Yakima Regional Clean Air Agency, Article 5, 
that were federally approved into the Washington SIP in 1998: 5.01 
Outdoor Burning; 5.02 Regulations Applicable to All Outdoor Burning; 
5.03 Regulations Applicable to All Outdoor Burning within the 
Jurisdiction of the Yakima County Clean Air Authority, Local Cities, 
Towns, Fire Protection Districts and Conservation Districts; 5.04 
Regulations Applicable to Permits Issued by the Yakima County Clean Air 
Authority for All Other Outdoor Burning; and 5.05 Additional 
Restrictions on Outdoor Burning. The SIP revision replaces the repealed 
outdoor burning rules in Regulation 1, Article 5, with Regulation 1, 
Article 3, 3.03 Outdoor and Agricultural Burning, that was adopted by 
YRCAA on October 8, 2020 and became state effective on November 9, 
2020.

III. The EPA's Evaluation

    As mentioned previously, the October 2021 SIP submission replaces 
the outdoor burning rules in Regulation 1, Article 5, with outdoor and 
agricultural burning rules in Regulation 1, Article 3, Section 3.03. 
The revision includes renumbering as well as updates to the rules.

Applicability

    The revised rules continue to apply within YRCAA's jurisdiction. 
Section 3.03 of the revised rules applies to burning requiring a permit 
and to burning that is exempt from permitting. Section 3.03 also 
applies to agricultural burning at agricultural operations and 
government operations, and to certain firefighting training fires. 
Consistent with the current SIP-approved rules, the revised rules do 
not apply to silvicultural burning and contain clarification that 
silvicultural burning is regulated by chapter 70A.15.RCW, chapter 332-
24 WAC, and the Department of Natural Resources Washington State Smoke 
Management Plan (3.03.B). The revised rules also contain exemptions for 
certain fire training fires at enclosed fire training facilities that 
meet specific rule requirements. Overall, the scope and applicability 
of outdoor burning subject to the revised rules appears at least 
equivalent to, if not more stringent than, the current SIP-approved 
rules.

General Prohibitions and Requirements for All Burning

    Under the revised rules, residential and land clearing burning is 
prohibited

[[Page 48148]]

at all times in the 10 urban growth areas (UGAs) in Yakima County 
(3.03.C). In contrast, the SIP-approved rules prohibit open burning in 
all UGAs and in cities with populations greater than 10,000, but only 
when the NAAQS are threatened, and alternative disposal practices are 
not reasonably available. Both the SIP-approved rules and the revised 
rules prohibit burning during a burn ban, however, to improve 
compliance and enforcement of this prohibition, the revised rules 
require confirmation of daily burning status (3.03.C.1.b and 
3.03.C.2.a). The revised rules improve enforceability by including a 
clear requirement to extinguish fires when burning is prohibited. 
Specifically, in addition to the requirement that there be no visible 
flame, the revised rules add that no visible smoke must come from the 
fire and that the material being burned can be handled with bare hands. 
The revised rules also shorten the maximum time allowed for larger 
fires to be extinguished by 2 hours, from 10 to 8 hours (3.03.C.2.e).
    Furthermore, the revised rules establish that land clearing, storm 
and flood debris, and orchard removal burns shall be extinguished 
within 8 hours of notification of a burn ban and that all other burns 
shall be extinguished within 3 hours of the notification (3.03.C.2.e). 
The revised rules also define storm and flood debris burning as 
``natural vegetation proposed for burning that was deposited by a storm 
or flood from a declared emergency by a governmental authority'' and 
establish that storm and flood debris can only be burned within 2 years 
of the event or date of the emergency proclamation. (3.03.D.2.c).
    Like the SIP-approved rules, the revised rules require that persons 
conduct burning during daylight hours, with limited exceptions. The 
revised rules also add specific requirements for the supervision of 
fires, location of fires, size of fires, distance requirements from 
buildings, fences, other combustible materials, and other fires, and 
the requirement to burn on a noncombustible surface (3.03.C.2 and 
3.03.D.2). The revised rules continue to list materials that are 
prohibited from being burned (3.03.D.1). This list is broader than the 
list in the existing SIP-approved rules. In addition to these general 
requirements applicable to all burning, the revised rules contain 
specific requirements for firefighting training fires and agricultural 
burning (3.03.E and 3.03.F). These revisions improve the stringency, 
clarity and enforceability of the outdoor burning rules as compared to 
the current SIP-approved rules.

Permit Requirements

    As with the SIP-approved rules, burning is not allowed without a 
permit, unless exempted (3.03.C.1.e and Table 3.03-1). The revised 
rules now require permits for Indian ceremonial fires and for 
firefighting training. The revised rules also establish three types of 
permits that YRCAA may issue depending on the type of burning, 
including individual permits, annual permits, and general rule permits 
(3.03.J). The revised rules also allow YRCAA to add specific conditions 
to permits as necessary before or after permit issuance (3.03.J.6). 
Regarding general permits, the revised rules include several permits 
with standard conditions, including for training fires and large 
recreational fires. In general, these revisions make the outdoor 
burning rules more stringent. The EPA specifically notes that the 
permit requirement in the revised rules for ceremonial fires and 
firefighting training strengthen the rules.

Permit Limited Exemptions

    The revised rules include specific, narrow exemptions from the 
permitting requirements. Importantly, burns exempt from permitting are 
still subject to the general restrictions and prohibitions in 3.03.C as 
modified by Table 3.03-1. Specific limited exemptions are detailed in 
Table 3.03-1. Certain limited exemptions include incidental quantities 
of fence rows and windblown vegetation, irrigation or drainage ditches, 
and orchard prunings (Table 3.03-1). The revised rules also allow 
nonprofit organizations to be granted limited exemptions for large 
recreational fires in prohibited areas and for burning outside daylight 
hours (Table 3.03-1 and General Rule Permit No. 3.03-5). Overall, these 
limited exemptions appear equivalent to or more stringent than the 
current SIP-approved rules.

Program Delegation

    The revised rules include provisions for partnering with local, 
county, state, and Federal agencies to administer the open burning 
program (3.03.I and Table 3.03-2). The revised rules allow for other 
entities to administer the permitting program provided the entity meets 
certain requirements. The revised rules also allow YRCAA to delegate 
authority to issue permits on behalf of YRCAA to other entities. On May 
19, 2023, YRCAA submitted a clarification letter to the EPA explaining 
that Indian ceremonial fires, residential/tumbleweed, and weed 
abatement are the only types of burning with permitting programs 
available for delegation pursuant to subsection 3.03.I. YRCAA also 
clarified that YRCAA and the Washington Department of Ecology interpret 
subsection 3.03.B, subsection 3.03.I and Table 3.03-2 as establishing a 
delegation program such that persons conducting outdoor and 
agricultural burning subject to Rule 3.03 must comply with Rule 3.03 
irrespective of whether program implementation is delegated pursuant to 
subsection 3.03.I and Table 3.03-2. Also, YRCAA and the Washington 
Department of Ecology acknowledge that once the EPA approves Rule 3.03 
and incorporates the rule into 40 CFR part 52, any change to the scope 
or stringency of Regulation 1, including through deferral of the 
outdoor and agricultural program to another agency, must be submitted 
by the State for approval by the EPA in accordance with CAA section 110 
and 40 CFR part 51.

Provisions the EPA Is Not Approving

    The revised rules include some provisions that the EPA cannot 
approve. These include provisions related to nuisance, asbestos, fees, 
and requirements of other agencies. The EPA's authority to approve SIPs 
extends to provisions related to attainment and maintenance of the 
NAAQS and carrying out other specific requirements of section 110 of 
the CAA. Therefore, the EPA is not approving the following provisions 
and no further EPA action on these rules is required.
    Nuisance provisions: Rule 3.03.E.2.c., General Rule Permit No. 
3.03-1.E.2.b, General Rule Permit No. 3.03-2.E.2.b, General Rule Permit 
No. 3.03-3.E.2.b, General Rule Permit No. 3.03-4.E.2.c, and General 
Rule Permit No. 3.03-5.E.2.d.
    Asbestos provisions: Rule 3.03.E.3.d, General Rule Permit No. 3.03-
1.E.2.d, General Rule Permit No. 3.03-1.E.2.e.
    Fee provisions: Rule 3.03.K.
    Requirements of other agencies: Rule 3.03.C.2.g, Rule 3.03.E.2a., 
General Rule Permit No. 3.03-1.G, General Rule Permit No. 3.03-2.G, 
General Rule Permit No. 3.03-3.G, General Rule Permit No. 3.03-4.G, and 
General Rule Permit No. 3.03-5.G.

Conclusion of EPA Analysis

    Based on our review, the EPA is proposing to conclude that the 
revised open and agricultural burning rules will not interfere with any 
applicable requirement concerning attainment or maintenance of the 
NAAQS. The EPA proposes to determine that the revisions result in an 
overall strengthening of the requirements for open and agricultural 
burning.

[[Page 48149]]

IV. Proposed Action

    The EPA is proposing to approve the SIP revisions for outdoor and 
agricultural burning submitted by Washington on October 14, 2021, 
because they meet Clean Air Act requirements. We are proposing to 
approve Regulation 1, Article 3, Section 3.03 into the federally-
approved SIP, except the following rules: 3.03.C.2.g, 3.03.E.2a, 
3.03.E.2.c, 3.03.E.3.d, 3.03.K; and the following provisions in General 
Rule Permit No.: 3.03-1.E.2.b, 3.03-1.E.2.e, 3.03-1.G, 3.03-2.E.2.b, 
3.03-1.E.2.d, 3.03-2.G, 3.03-3.E.2.b, 3.03-3.G, 3.03-4.E.2.c, 3.03-4.G, 
3.03-5.E.2.d, and 3.03-5.G. We are also proposing to remove from the 
federally-approved SIP the outdated Regulation 1, Article 5 provisions, 
Sections 5.01-5.05, that are replaced by Section 3.03.

V. Environmental Justice Considerations

    To provide additional context and information to the public on 
potential environmental burdens and susceptible populations in 
underserved communities in Yakima County, we conducted a screening-
level analysis using the EPA's environmental justice (EJ) screening and 
mapping tool, EJScreen, version 2.1.\2\ We note, however, that this 
screening analysis does not serve as a basis for this proposed action. 
As detailed in section II of this preamble, the EPA's proposed action 
is based on its determination that the SIP revision submitted by 
Washington meets Clean Air Act requirements.
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    \2\ EJScreen provides a nationally consistent dataset and 
approach for combining environmental and demographic indicators. 
EJScreen is available at https://www.epa.gov/ejscreen/what-ejscreen.
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    EJScreen includes 12 EJ indexes, each of which combines demographic 
factors with a single environmental factor.\3\ EJScreen also includes a 
demographic index that combines low income, race and ethnicity data for 
an area.\4\ Additionally, there are 7 socioeconomic indicators in 
EJScreen: people of color; low income; unemployment rate; limited 
English speaking households; less than high school education; low life 
expectancy; under age 5; over age 64.\5\ The EPA has determined that 
the use of an initial data filter in EJScreen promotes consistency and 
provides a pragmatic first step for EPA programs and regions when 
interpreting screening results. For early applications of EJScreen, the 
EPA has identified the 80th percentile filter as that initial starting 
point. For more information on percentiles, please see the EJScreen 
technical documentation.\6\
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    \3\ The 12 EJ indexes in EJScreen are: fine particulate matter 
(annual average of fine particulate matter in ambient air); ozone 
(summer seasonal ozone averages); diesel particulate matter (diesel 
particulate matter level in air); air toxics cancer risk (lifetime 
cancer risk of inhalation of air toxics); air toxics respiratory 
hazard index; traffic proximity (count of vehicles per day at major 
roads divided by distance); lead paint (housing built before 1960, 
as index of potential exposure to lead paint); superfund proximity 
(count of proposed and listed Superfund national priority list sites 
divided by distance); risk management plan facility proximity (count 
of risk management plan facilities divided by distance); hazardous 
waste proximity (count of waste transfer, storage and disposal 
facilities and large quantity generators divided by distance); 
underground storage tanks (count of leaking underground storage 
tanks and tanks within a buffered block group); wastewater discharge 
(risk screening environmental indicators modeled toxic 
concentrations at stream segments divided by distance).
    \4\ The demographic index in EJScreen combines the average of 
the number of individuals whose household income is less than twice 
the poverty level and the number of individuals who list their 
racial status as a race other than white alone and/or list their 
ethnicity as Hispanic or Latino.
    \5\ The unemployment indicator is based on the number of 
individuals who did not have a job at all during the reporting 
period made at least one specific active effort to find a job during 
the prior 4 weeks and were available for work (unless temporarily 
ill). The less than high school education indicator is based on the 
number of individuals age 25 and older with less than a high school 
degree. The limited English-speaking indicator is based on the 
percent of households in which all members age 14 years and over 
speak a non-English language and also speak English less than `very 
well'. The low life expectancy indicator is based on the average 
life expectancy ranked as percentiles. The under age 5 indicator is 
based on the percent of individuals under age 5. The over age 64 
indicator is based on the percent of individuals over age 64.
    \6\ EJScreen Technical Documentation, available at https://www.epa.gov/sites/default/files/2021-04/documents/ejscreen_technical_document.pdf.
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    There are 6 EJ indexes in Yakima County that are higher than the 
state or national 80th percentile. These are the EJ Index for: 
Particulate Matter 2.5 (94th state percentile, 86th U.S. percentile); 
ozone (95th state percentile, 70th U.S. percentile); air toxics cancer 
risk (91st state percentile, 83rd percentile); air toxics respiratory 
health (91st state percentile, 87th percentile U.S.), and risk 
management plan facility proximity (92nd state percentile, 82nd 
percentile).
    For the demographic index, Yakima County is in the 90th percentile 
for the state and in the 75th percentile for the U.S. Additionally, 
there are 4 socioeconomic indicators in Yakima County that are higher 
than the state or national 80th percentile. These are people of color 
(86th state percentile, 71st U.S. percentile); low income (84th state 
percentile, 72nd U.S. percentile); limited English speaking households 
(84th state percentile, 81st U.S. percentile); less than high school 
education (94th state percentile, 87th U.S. percentile).
    This proposed action would approve the revised YRCAA outdoor and 
agricultural burning rules submitted by Washington. We expect that this 
action and resulting requirements will generally be neutral or 
contribute to reduced environmental and health impacts on all 
populations in Yakima County, including people of color and low-income 
populations. At a minimum, this action would not worsen any existing 
air quality and is expected to ensure the area is meeting requirements 
to attain and/or maintain air quality standards. Further, there is no 
information in the record indicating that this action is expected to 
have disproportionately high or adverse human health or environmental 
effects on a particular group of people.

VI. Incorporation by Reference

    In this document, the EPA is proposing to include in a final rule, 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference the Regulation 1, Article 3, Section 3.03 provisions 
described in sections II and III of this preamble. Also, in this 
document, the EPA is proposing to remove, in a final EPA rule, 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to remove the 
incorporation by reference of the Regulation 1, Article 5, Sections 
5.01-5.05, as described in sections II and III of this preamble. The 
EPA has made, and will continue to make, these documents generally 
available through https://www.regulations.gov and at the EPA Region 10 
Office (please contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section of this preamble for more information).

VII. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Clean Air Act 
and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, the EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under

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Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 
21879, April 11, 2023);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a state program;
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act.
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).
    YRCAA did not evaluate environmental justice considerations as part 
of its SIP submission; the CAA and applicable implementing regulations 
neither prohibit nor require such an evaluation. The EPA performed an 
environmental justice analysis, as is described above in the section 
titled, ``Environmental Justice Considerations.'' The analysis was done 
for the purpose of providing additional context and information about 
this rulemaking to the public, not as a basis of the action. Due to the 
nature of the action being taken here, this action is expected to have 
a neutral to positive impact on the air quality of the affected area. 
In addition, there is no information in the record upon which this 
decision is based inconsistent with the stated goal of E.O. 12898 of 
achieving environmental justice for people of color, low-income 
populations, and Indigenous peoples.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: July 20, 2023.
Casey Sixkiller,
Regional Administrator, Region 10.
[FR Doc. 2023-15751 Filed 7-25-23; 8:45 am]
BILLING CODE 6560-50-P