06-4516. 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.

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: [e-mail].
• 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, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us” and “our” refer to EPA.

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, Program Evaluation and Planning	03/16/04	12/30/04
ADEQ	R18-2-1504	Prescribed Burn Plan	03/16/04	12/30/04
ADEQ	R18-2-1505	Prescribed Burn Requests and Authorization	03/16/04	12/30/04
ADEQ	R18-2-1506	Smoke Dispersion and Evaluation	03/16/04	12/30/04
ADEQ	R18-2-1507	Prescribed Burn Accomplishment; Wildfire Reporting	03/16/04	12/30/04
ADEQ	R18-2-1508	Wildland Fire Use: Plan, Authorization, Monitoring; Inter-Agency Consultation; Status Reporting	03/16/04	12/30/04
ADEQ	R18-2-1509	Emission Reduction Techniques	03/16/04	12/30/04
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 Program; Regional Coordination	03/16/04	12/30/04
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 Administration	10/27/04	12/30/04

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 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 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

Dated: March 22, 2006.

Wayne Nastri,

Regional Administrator, Region IX.

Part 52, 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 D—Arizona

2. Section 52.120 is amended by adding paragraph (c)(131) to read as follows:

§ 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.

* * * * *