Approval and Promulgation of Air Quality Implementation Plans; Maine; Open Burning Rule

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

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: arnold.anne@epa.gov.

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 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 simcox.alison@epa.gov.

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 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

Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart U—Maine

2. Section 52.1020 is amended by adding paragraph (c)(61) to read as follows:

3. In § 52.1031, Table 52.1031 is amended by adding a new entry to existing state citation “102” to read as follows: