Proposed Rule2023-05462
Air Plan Approval; WA; Smoke Management Plan Update
Primary source
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Published
March 23, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve Washington State Implementation Plan (SIP) revisions submitted on August 10, 2022. The submitted revisions incorporate the most recent updates to Washington's Smoke Management Plan and reflect state legislative and regulatory changes. The revisions include earlier notification of burn decisions, revise the burn approval criteria to better align with state law, remove the prohibition against summer weekend burning; and allow previously prohibited burning in urban growth areas subject to an approval process that requires consideration of the impact of the approval on air quality. EPA is proposing to approve the revisions based our determination that the revisions are consistent with Clean Air Act requirements.
Full Text
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<title>Federal Register, Volume 88 Issue 56 (Thursday, March 23, 2023)</title>
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[Federal Register Volume 88, Number 56 (Thursday, March 23, 2023)]
[Proposed Rules]
[Pages 17481-17486]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-05462]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2022-0731, FRL-10545-01-Region 10]
Air Plan Approval; WA; Smoke Management Plan Update
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve Washington State Implementation Plan (SIP) revisions submitted
on August 10, 2022. The submitted revisions incorporate the most recent
updates to Washington's Smoke Management Plan and reflect state
legislative and regulatory changes. The revisions include earlier
notification of burn decisions, revise the burn approval criteria to
better align with state law, remove the prohibition against summer
weekend burning; and allow previously prohibited burning in urban
growth areas subject to an approval process that requires consideration
of the impact of the approval on air quality. EPA is proposing to
approve the revisions based our determination that the revisions are
consistent with Clean Air Act requirements.
DATES: Comments must be received on or before April 24, 2023.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2022-0731 at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from <a href="http://Regulations.gov">Regulations.gov</a>. 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 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
[[Page 17482]]
additional submission methods, the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Randall Ruddick, EPA Region 10, 1200
Sixth Avenue--Suite 155, Seattle, WA 98101, at (206) 553-1999, or
<a href="/cdn-cgi/l/email-protection#67151203030e040c4915060903060b0b2702170649000811"><span class="__cf_email__" data-cfemail="ccbeb9a8a8a5afa7e2beada2a8ada0a08ca9bcade2aba3ba">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, it is intended to refer to the EPA. This
Supplementary Information section is arranged as follows:
Table of Contents
I. Background
II. Washington's Smoke Management Plan
III. Evaluation of Washington's SIP Submittal
IV. EPA's Proposed Action
V. Incorporation by Reference
VI. Statutory and Executive Orders Review
I. Background
Each state has a State Implementation Plan (SIP) containing the
control measures and strategies to attain and maintain the national
ambient air quality standards (NAAQS) established by the Environmental
Protection Agency (EPA) for the criteria pollutants (carbon monoxide,
lead, nitrogen dioxide, ozone, particulate matter, sulfur dioxide). The
SIP contains such elements as air pollution control regulations,
emission inventories, attainment demonstrations, and enforcement
mechanisms.
Washington adopted a Smoke Management Plan as part of the
Washington SIP to reduce emissions that contribute to visibility
impairment. Wildfire has had a serious impact on Washington during the
past decade with many large-scale wildfires impacting air quality.
Prescribed fires \1\ have been increasingly used as a land management
tool to reduce the likelihood of catastrophic wildfires by reducing the
buildup of unwanted fuels and strengthening an area's ecosystems. This
controlled application of fire to wildland fuels, is done under
specific environmental conditions and protocols that typically call for
a prescribed fire to be confined to a predetermined area and limit the
fire to an intensity and scale required to attain planned forestland
management objectives. The State anticipates increasing the application
of prescribed fire in response to the increasing threat of wildfires in
Washington. The state intends to balance the need to increase the use
of prescribed fire as a forest management tool while minimizing smoke
impacts through the implementation of policies and processes outlined
in Washington's Smoke Management Plan (SMP).
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\1\ Prescribed fires, also known as prescribed burns, refer to
the controlled application of fire by a team of fire experts under
specified weather conditions to restore health to ecosystems that
depend on fire.
Source: <a href="https://www.fs.usda.gov/managing-land/prescribed-fire">https://www.fs.usda.gov/managing-land/prescribed-fire</a>.
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EPA first approved Washington's SMP into the Washington SIP in 1987
(52 FR 16243, May 4, 1987) as part of Washington's visibility
protection plan. Washington updated and EPA approved the SMP in 1998
(1998 SMP) and 2003 respectively (68 FR 34821, June 11, 2003). In 2016,
the Washington State Legislature provided funding to update the 1998
SMP and the Legislature made changes to statutes affecting the SMP in
2019 and 2021. After revising rules to reflect the updated legislation,
Washington updated the SMP to reflect the statutory and regulatory
changes. On August 10, 2022, following a state public comment process,
the Washington State Department of Ecology (Ecology) submitted the
updated SMP, including the statutes and regulations relied on in the
Plan, to EPA for approval (2022 SMP).
II. Washington's Smoke Management Plan
Washington's SMP establishes a program to allow silvicultural
burning on forestland while protecting air quality. Although Ecology is
the primary delegated air quality agency for the state and submitted
the Washington SMP to EPA for approval, Washington's Department of
Natural Resources (DNR) has been and continues to be the state agency
with the responsibility for regulating smoke from silvicultural burning
on forestland. See Revised Code of Washington (RCW) 70A.15.5120 and RCW
70A.15.5130. The Washington SMP is therefore primarily implemented by
DNR with assistance from Ecology.
DNR oversees prescribed silvicultural burning in Washington to
improve fire dependent ecosystems, mitigate wildfire potential,
decrease forest susceptibility to insects or disease, and otherwise
enhance forest resiliency to fire. The purpose of the SMP is to
coordinate and facilitate the statewide regulation of prescribed,
silvicultural (forestland) burning on lands under the authority of DNR,
and on unimproved, federally managed forestlands and participating
tribal lands. The SMP applies to all persons, landowners, companies,
state and Federal land management agencies, and others who conduct
silvicultural burning in Washington State. The SMP does not apply to
agricultural burning, outdoor burning that occurs on improved property,
or tribal lands described in Section VI of this document.
For purposes of discussing the Washington SMP, prescribed fires
fall into three main categories based on the size of the burn: ``rule
burns,'' ``small burns,'' and ``large burns.'' The approval process for
burns under the SMP \2\ also varies based on whether the burn is a
``multiple day burn'' and whether the burn is conducted in an urban
growth area.
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\2\ Commonly referred to as ``Go/No-Go'' and ``Go/No-Go
Decision'' in the 2022 SMP.
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``Rule burns'' are generally no more than ten feet in diameter and
are always limited to one fire at a time. They include burning of hand-
built piles for recreational purposes, as well as fuels reduction, or
other silvicultural purposes. Rule burns may also be restricted to no
more than 4 feet in diameter depending on time of year and the county
within which the burning occurs.\3\ DNR has authority over rule burns,
but no written permit or site-specific burn approval or decision is
required under either the 1998 SMP or 2022 SMP for rule burns, provided
the burns comply with minimum requirements for all burns listed in WAC
332-24-205 \4\ and the specific provisions for rule burns in WAC 332-
24-211. No changes have been made to WAC 332-24-211, since EPA approved
it into the Washington SIP in 2003. The ``Scope'' sections in both the
1998 SMP and 2022 SMP state that the SMP does not apply to burning done
``by rule'' (``rule burns'').
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\3\ Size limits, including seasonal and county specific
limitations, are described in Washington Administrative Code 332-24-
211.
\4\ WAC 332-24-205 applies to ``all burning regulated by the
department'' and WAC 332-24-211 Specific rules for small fires not
requiring a written burning permit. WAC 332-24-211 clarifies that
the requirements contained therein are ``[i]n addition to WAC 332-
24-205'' and sets forth the diameter and seasonal restrictions for
so called ``rule burns.''
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``Small burns'' require site-specific written permits and are
defined under the 2022 SMP as fires that will consume less than 100
tons of forest debris \5\ in a 24-hour period. The size threshold is
extended to 300 tons in ``low-risk areas.'' ``Low risk areas'' are
generally remote areas and are defined by DNR using the criteria
described in Appendix 10 of the 2022 SMP. Burners intending to conduct
small burns are required to
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obtain a site-specific written permit.\6\ DNR conditions such permits
based on the proposed locations and may include specific instructions
in the permits, such as limits on wind directions under which the burns
may be conducted. Burners are required to follow all conditions in
their burn permits. Prior to igniting a small burn, the burner must
also call 1-800-323 BURN and follow the instructions that apply for the
day and location of the burn being conducted. Burners cannot ignite
small burns if an air quality episode is declared, or conditions of
impaired air have been declared by Ecology or the local clean air
authority as provided under RCW 70A.15.5140 and WAC 332-24-205(5). DNR
may also suspend small burns on private and state lands due to high
fire danger (Federal officials manage fire danger on Federal lands). In
contrast to large burns, small burns conducted outside of urban growth
areas do not require a site-specific burn decision just prior to the
burn. Small burns within urban growth areas are not treated the same as
other small burns but instead must undergo the same permitting process
as large burns.
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\5\ ``Forest debris'' includes forest slash, chips, and any
other vegetative residue resulting from activities on forestland.
This definition is from RCW 76.04.005(9), which is included in
Appendix 7 of the 2022 SMP.
\6\ WAC 332-24-201(4) requires a written permit for all burning
other than ``rule burns'' which are outside the scope of the SMP.
``Rule Burns'' must meet all general rules in WAC 332-24-205 as well
as specific additional conditions in WAC 332-24-211.
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``Large burns'' are defined as fires that will consume 100 tons or
more in a 24-hour period (300 tons or more in low risk areas). Like
small burns, large burns require site-specific permits; burners must
follow all conditions in their burn permits; ignition is prohibited if
an air quality episode is declared or conditions of impaired air have
been declared by Ecology or the local clear air authority as provided
under RCW 70A.15.5140 and WAC 332-24-205(5); and DNR may suspend large
burns on private and state lands due to high fire danger (Federal
officials manage fire danger on Federal lands). The distinction here
from small burns outside of UGA's is that prior to igniting a large
burn outside of UGA's, the burner must contact DNR directly and request
authorization to ignite the large burn on a particular day. The SMP
identifies eight specific burn approval criteria to be met before DNR
decides whether ignition will be authorized for large burns (and small
burns inside urban growth areas) and tasks DNR wildland fire management
division managers with assessing the potential for smoke intrusions. To
inform decisions, DNR utilizes numerous tools as well as site- and
temporal-specific considerations, including, but not limited to,
current and forecasted weather conditions, air quality, fuel moisture,
firing techniques, and availability of suppression forces.
``Multiple day burns'' are subject to the same approval criteria
used to approve large burns, regardless of burn size. Additional
information and actions are required from burners before DNR will
approve a multiple day burn. Those additional requirements are in the
SMP in the Approval Process for Multiple Day Burns section and include,
but are not limited to, notifying DNR at least three months before the
proposed start of the burn, providing a rationale for why the burn
cannot be accomplished in single day increments, providing
communication and public notification plans, obtaining spot forecasts
for each day of the burn, identifying what monitoring resources will be
utilized, and participating in daily coordination calls.
Although the 2022 SMP burn approval criteria prohibit authorizing
burns that would cause an exceedance of air quality standards, DNR's
goal as stated in the SMP is based on levels below the 35 [micro]g/m\3\
24-hour NAAQS for PM<INF>2.5</INF>.\7\ This is a new element of the
2022 SMP. Under the 2022 SMP, DNR now considers exceeding a
PM<INF>2.5</INF> level of 20.5 [micro]g/m\3\ (on a 3-hour rolling
average) a smoke ``intrusion'' and unacceptable for purposes of the
SMP.\8\ The 2022 SMP sets forth new procedures to avoid, detect, and
respond to smoke intrusions. These procedures include, but are not
limited to:
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\7\ PM<INF>2.5</INF> is fine inhalable particles, with diameters
that are generally 2.5 micrometers and smaller.
\8\ See 2022 SMP, page 11, Smoke Intrusions caused by any
silvicultural burning section, which is included in the docket for
this action.
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<bullet> Incorporating consideration of potential intrusions when
making burn decisions;
<bullet> Using available resources such as monitors and webcams to
assess the level of smoke in potentially impacted communities;
<bullet> Reporting and documenting where and when smoke intrusions
occur;
<bullet> Issuing health advisories as needed and collaborating with
Ecology, Washington Department of Health, and local clean air
authorities;
<bullet> Requiring burners to submit intrusion reports when DNR
determines one has occurred; and
<bullet> Sharing all data and final intrusion reports with
applicable partners and regulators, including Ecology, local clean air
authorities, state and local health departments, and EPA.
In the 2022 SMP, DNR commits to reviewing the SMP every five years
and revising the plan or procedures as necessary as a result of that
review. The SMP specifies that plan revisions will adopt the same
review procedures used for the original adoption. The EPA notes that
any revision to the SMP would not be part of the Washington SIP unless
submitted to and approved by the EPA as provided in 42 U.S.C. 7410.
III. Evaluation of Washington's SIP Submittal
As with its previous SMP, Washington's 2022 SMP submittal includes
an extensive discussion of how the state implements its smoke
management program as well as the statutes and regulations that apply
to prescribed burning on forest land in Washington. Washington states
that it revised its SMP to better regulate burning while reducing fuel
loading, restore forest ecosystems, and reduce the risk of catastrophic
wildfire while continuing to protect air quality. The revisions include
changes to both the main body of the SMP as well as state statutes and
regulations that apply to prescribed burning and are included in
Appendix 7 of the submittal.\9\
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\9\ The 1998 SMP included the applicable statutes and
regulations in Appendix 15.
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The bulk of revisions in the 2022 SMP are non-substantive from a
SIP approvability perspective and include reorganizing the order of SMP
sections and content; updating wording for consistency and more current
vernacular; and updating citations to reflect recodification of
applicable statutes and rules. Washington also revised the SMP to add
or clarify recordkeeping, reporting, and notification requirements for
prescribed fires that may later qualify as an ``exceptional event''
under 40 CFR 50.14. This is also a non-substantive change to
Washington's SMP because EPA is not approving or disapproving this SMP
as meeting the requirements of EPA's exceptional event guidance.\10\
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\10\ See EPA's 2019 Exceptional Events Guidance: Prescribed Fire
on Wildland that May Influence Ozone and Particulate Matter
Concentrations, page 20.
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The 2022 SMP also contains several substantive revisions to the
SMP. Those revisions affect burn decision timing, burn approval
criteria, summer weekend burning, and burning in urban growth areas.
Washington included in the submittal information to demonstrate that
these revisions to the SMP will not interfere with any applicable
requirement concerning attainment or reasonable further progress or any
other applicable requirement of Title I of the CAA. See 42 U.S.C.
7410(l). The most relevant
[[Page 17484]]
pollutants for Washington's analysis of visibility and interference
with NAAQS attainment are PM<INF>2.5</INF>, PM<INF>10</INF>, and ozone
due to the nature of prescribed fire emissions and because EPA revised
the PM<INF>2.5</INF> and ozone NAAQS resulting in more stringent
standards (78 FR 3085, January 15, 2013, and 80 FR 65292, October 26,
2015) since EPA last approved Washington's SMP.\11\ The substantive
changes to the 2022 SMP and the demonstration supporting the changes
are discussed below.
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\11\ Washington states, and EPA agrees, that attainment and
maintenance related to criteria pollutants other than PM and ozone
are unlikely to be impacted by the changes to Washington's SMP.
There are no nonattainment areas in Washington except for one sulfur
dioxide nonattainment area that is small in area and encompasses an
aluminum smelter facility and the area immediately adjacent to this
facility. No discernible sulfur contributions to that area are
expected to result from prescribed fire due to the low levels of
sulfur in the woody biomass being burned.
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Burn Decision Timing
Under the current approved 1998 SMP, ``large burns'' require that
DNR issue a site-specific smoke management decision (permission to
ignite) the morning of the day the fire is to be ignited. Under the
2022 SMP, if a burner submits a request to DNR by noon the ``day
prior'' to the planned ignition, DNR must issue a decision by 4:00 p.m.
that same day--about 15 hours earlier than what would be expected under
the 1998 SMP. The result of this change is reliance on products,
primarily meteorological forecasts and models that are produced earlier
and, due to advances in science and technology, are more reliable than
what would have been available when the 1998 SMP was created.
Washington's demonstration included a technical analysis \12\ of
forecast models used for day of versus day prior to ignition in the
2022 SMP. The technical analysis of the revised protocols shows no
appreciable loss in forecast accuracy and indicates DNR would likely
make the same operational burn decision regardless of whether the
decision is rendered by 4:30 p.m. on the day prior to ignition or 8:00
a.m. on the day of ignition. The analysis also shows that, in the
season when most burn decisions are made (fall), model runs the day
prior to a burn have slightly smaller wind speed forecast errors than
the day-of-burn model runs (wind speed is a significant factor for burn
decisions). This lends confidence that a status-quo or better burn
decision will be made.
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\12\ For more information see Appendix 1 of Washington's 2022
Smoke Management Plan Demonstration, 7.Appendix b.3 Appendices 1-
4wTOC.pdf, which is included in the docket for this action.
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In addition, this burn decision timing change is not a complete
departure from the procedure under the 1998 SMP. Burners seeking day
prior burn decision approval under the 2022 SMP must submit their
request by noon the day prior to ignition. Failure to do so may result
in a burn decision on the day of ignition, instead of by 4:30 p.m. on
the day prior to ignition. Burners may still request a burn decision on
the planned day of ignition.
More importantly, there are protections in the burn approval
process in the 2022 SMP based on air quality on the morning of
ignition.\13\ Specifically, the 2022 SMP states that on the day of the
burn ``If the burn was approved, the Smoke Management Section will
verify weather conditions have not changed so much as to result in a
violation of the Approval Criteria, by 7:30 a.m. If weather conditions
have unexpectedly changed burners will be notified and advised that
they may have to extinguish, and therefore are advised to not burn that
location.'' This 2022 SMP weather verification requirement applies to
large burns and all burns in urban growth areas, regardless of size.
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\13\ See Appendix 1, Section 1.C. of the 2022 SMP which is
included in the docket for this action.
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For these reasons, including the technical demonstration supporting
this change, we are proposing to find that attainment and maintenance
of the NAAQS are unlikely to be affected by changes to the burn
decision timing.
Burn Approval Criteria
As under the 1998 SMP, the 2022 SMP has eight approval criteria.
All eight were updated to include state or Federal air quality
regulation citations, which improve clarity for both regulators and the
regulated community as compared to the 1998 SMP, which did not include
citations. There are no substantive changes to approval criteria 3, 4,
6, and 7. Washington revised approval criteria 2 to reflect the
specific statutory language authorizing the condition and the
corresponding citation.\14\
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\14\ For a detailed analysis of the 1998 comparison to the 2022
approval criteria, see Appendix 3 of Washington's 2022 Smoke
Management Plan Demonstration which is included in the docket for
this action.
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The most substantive changes are to approval criteria 1, 5, and 8.
Under the 1998 SMP, approval criteria 1 considered whether there was a
likelihood of an ``intrusion'' of visible smoke, whereas under the 2022
SMP, this criterion was revised to the likelihood of an exceedance of
state air quality standards, which include the NAAQS, based on the
requirement in RCW 70A.15.5140. The 2022 SMP also includes a new
requirement for DNR and burners to monitor for and address intrusions
of smoke due to silvicultural burning above 22.5 ug/m3 of
PM<INF>2.5</INF>, a level significantly below the 35 ug/m3
PM<INF>2.5</INF> NAAQS exceedance level. With this new requirement,
combined with the revision to rely on the NAAQS exceedance level,
criteria 1 is more protective in the 2022 SMP than the 1998 SMP.
Approval criteria 5, previously a non-air quality specific reference to
endangered species protections already in Washington State's Forest
Practices Rule and Regulations, now prohibits burning in areas where
Federal or State air quality standards are exceeded for any criteria
pollutant, with limited exceptions for silvicultural burning to improve
or maintain fire dependent ecosystems for rare plants or animals in
specified areas. This is more protective than the existing criteria.
Approval criteria 8 was revised by replacing language regarding smoke
dispersion thresholds with criteria based on whether a declared stage
of impaired air quality has been called or is likely to be called in
the next 24 hours, based on coordination among DNR, Ecology, and local
air agencies.\15\ DNR still evaluates smoke dispersion under the 2022
SMP when assessing meteorological data, forecasting models, and
permitting data to evaluate whether approval criteria 1, 2, and 3 have
been met.\16\ For these reasons, we are proposing to find that
attainment and maintenance of the NAAQS are unlikely to be affected by
the revisions to the eight approval criteria.
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\15\ Ibid.
\16\ Ibid.
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Summer Weekend Burning
The 1998 SMP contains a statewide prohibition on large burns from
midnight Thursday through midnight Sunday between June 15 and October 1
and on the holidays of July Fourth and Labor Day. This prohibition is
commonly referred to as the ``summer weekend burning prohibition.'' The
summer weekend burning prohibition only applies to large burns under
the 1998 SMP. Moreover, all prescribed burns are, and will continue to
be, severely limited for much of the period covered by the 1998 SMP
summer weekend burning prohibition regardless of size. This is because
prescribed burns during this period are frequently limited due to high
occurrences of inconducive
[[Page 17485]]
weather, fuel conditions, preparedness levels and other safety
constraints.\17\
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\17\ See Appendix 2 of Washington's 2022 Smoke Management Plan
Demonstration, which is included in the docket for this action in
7.Appendix b.3 Appendices 1-4 wTOC.pdf.
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Although the 2022 SMP does not retain the summer weekend burning
prohibition, air quality protections are in place for the newly allowed
burning because removing the prohibition only affects large burns,
which require site-specific DNR smoke management decisions before
ignition may occur.\18\ The 2022 SMP requires DNR's smoke management
decisions to be protective of air quality through the inclusion of the
Approval Criteria for Large Burns and All Burns within UGAs. For these
reasons, we are proposing to find that attainment and maintenance of
the NAAQS are unlikely to be affected by removal of the summer weekend
burning prohibition.
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\18\ See the subsection ``Large burns and all burns in Urban
Growth Areas'' of the General Burning Requirements section in the
2022 SMP, which is included in the docket for this action in 5.
Appendix B.2.DNR SMP with Cover.pdf.
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Burning in Urban Growth Areas
In 2019, the Washington State Legislature amended state law \19\ to
allow previously prohibited prescribed burning in urban growth areas.
Unlike the summer weekend prohibition, the newly allowed burning is not
burn size specific. The 2022 SMP includes allowances for prescribed
``Urban Growth Area (UGA) Burns'' and defines them as any ``fire that
takes place wholly or in part within a UGA as defined by the county.''
\20\ Regardless of consumable tonnage, urban growth area burns require
a site-specific DNR smoke management decision, a documented test fire
and a spot weather forecast.\21\ This site-specific decision follows
the same approval criteria used for making site-specific decisions for
large burns. The criteria include requirements that approval to ignite
be denied if there is a likelihood of an air quality standard
exceedance, as well as other air quality considerations.\22\ For these
reasons, we are proposing to find that attainment and maintenance of
the NAAQS are unlikely to be affected by the newly allowed urban growth
area burning.
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\19\ The Washington Legislature amended RCW 70.94.6514,
subsequently recodified as RCW 70A.15.5020.
\20\ As defined in the General Burning Requirements section in
the 2022 SMP, which is included in the docket for this action in 5.
Appendix B.2.DNR SMP with Cover.pdf.
\21\ See the subsection ``Urban Growth Area (UGA) Burns'' of the
General Burning Requirements section in the 2022 SMP, which is
included in the docket for this action in 5. Appendix B.2.DNR SMP
with Cover.pdf.
\22\ EPA also notes that these burns would be subject to the
limitations on ``intrusion'' of smoke exceeding a PM<INF>2.5</INF>
level of 20.5 [micro]g/m\3\ (on a 3-hour rolling average), discussed
in more detail above.
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Regional Haze and Visibility
As discussed above, the 1998 SMP that is currently approved in the
Washington SIP was approved as part of Washington's regional haze and
visibility protection plan. 68 FR 34821 (June 11, 2003). EPA has
recognized that prescribed fires conducted for the purpose of ecosystem
health and public safety in accordance with basic smoke management
practices are generally consistent with the goal of making reasonable
progress toward natural visibility in mandatory class I areas because
prescribed fires are most often conducted to improve ecosystem health
and to reduce the risk of catastrophic wildfires, both of which can
result in net beneficial impacts on visibility.\23\ EPA proposes to
find that none of the substantive changes to Washington's SMP discussed
above interfere with reasonable progress towards natural visibility in
mandatory class I areas, as laid out in Washington's regional haze and
visibility SIP. As under the 1998 SMP, approval to burn will be denied
if burning will not protect the public welfare, preserve visibility,
protect scenic, aesthetic, historic, and cultural values, and prevent
air pollution problems that interfere with the enjoyment of life,
property, or cultural attractions or if burning will not comply with
the Federal Clean Air Act regarding visibility protection of Federal
Class I Areas.
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\23\ See additional discussion in Protection of Visibility:
Amendments to Requirements for State Plans, 82 FR 3078 (January 10,
2017).
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IV. EPA's Proposed Action
We have reviewed the submitted SIP revisions and propose to find
that the revisions meet the requirements of the CAA for approval. Based
on our review of Washington's demonstration, we propose to conclude
that the revisions to Washington's SIP will not interfere with any
applicable requirement concerning attainment, reasonable further
progress, or any other applicable requirement of the CAA. Under CAA
section 110(k), EPA is proposing to approve, and incorporate by
reference, into the Washington SIP at 40 CFR part 52, subpart WW the
following statutes and regulations in Appendix 7 to the 2022 SMP that
provide the authority for implementation and enforcement of the plan,
as well as the permits that authorize burning under the 2022 SMP:
<bullet> RCW 52.12.103, Burning Permits--Issuance--Contents (state
effective March 27, 1984);
<bullet> RCW 52.12.104, Burning Permits--Duties of permittee (state
effective March 27, 1984);
<bullet> RCW 76.04.005, Definitions. (1) ``Additional fire hazard''
(5) ``Department protected lands'' (9) ``Forest debris'' (11)
``Forestland'' (12) ``Forestland owner,'' ``owner of forestland,''
``landowner,'' or ``owner'' (13) ``Forest material'' (15) ``Landowner
operation'' (18) ``Participating landowner'' (20) ``Slash'' (21)
``Slash burning'' (23) ``Unimproved lands'' (state effective July 24,
2015);
<bullet> RCW 76.04.205, Burning Permits--Civil Penalty (state
effective July 25, 2021);
<bullet> RCW 70A.15.1030, Definitions. (21) ``Silvicultural
burning'' (state effective June 11, 2020);
<bullet> RCW 70A.15.5000, Definition of ``outdoor burning'' (state
effective July 26, 2020);
<bullet> RCW 70A.15.5010, (2) Outdoor burning--Fires prohibited--
Exceptions (state effective June 11, 2020);
<bullet> RCW 70A.15.5020, Outdoor burning--Areas where prohibited--
Exceptions--Use for management of storm or flood-related debris--
Silvicultural burning, except (3) (state effective June 11, 2020);
<bullet> RCW 70A.15.5120, Burning permits for abating or prevention
of forest fire hazards, management of ecosystems, instruction on
silvicultural operations--Issuance--Fees (state effective June 11,
2020);
<bullet> RCW 70A.15.5130, Silvicultural forest burning--Reduce
statewide emissions--Exemption--Monitoring program (state effective
July 28, 2019);
<bullet> RCW 70A.15.5140, Burning permits for abating or prevention
of forest fire hazards, management of ecosystems, instruction on
silvicultural operations--Conditions for issuance and use of permits--
Air quality standards to be met--Alternate methods to lessen forest
debris (state effective June 11, 2020);
<bullet> RCW 70A.15.5150, Cooperation between department of natural
resources and state, local, or regional air pollution authorities--
Withholding of permits (state effective June 11, 2020);
<bullet> RCW 70A.15.5190, Outdoor burning allowed for managing
storm or flood related debris (state effective June 11, 2020);
<bullet> WAC 332-24-201, Burning Permit Program--Requirements and
Exceptions (state effective June 30, 1992);
<bullet> WAC 332-24-205, General rules--minimum requirements for
all burning, except (13) (state effective November 22, 2019);
[[Page 17486]]
<bullet> WAC 332-24-211, Specific rules for small fires not
requiring a written burning permit (solely for the purpose of
establishing the size threshold for burns covered by the Smoke
Management Plan) (state effective June 30, 1992);
<bullet> WAC 332-24-217, Burning permit--penalty (state effective
June 30, 1992);
<bullet> WAC 332-24-221, Specific rules for burning that requires a
written burning permit (state effective February 1, 2012).
In addition, the EPA is proposing to approve, but not incorporate
by reference, into the Washington SIP at 40 CFR part 52, subpart WW the
Department of Natural Resources Smoke Management Plan, state effective
May 10, 2022 (including all Appendices to such plan), as such plan
applies to silvicultural burning regulated by DNR.
We note that, as provided in 40 CFR 52.2476 of the Washington SIP,
any variance or exception to the 2022 SMP granted by DNR or Ecology
must be submitted by Washington for approval to EPA in accordance with
the requirements for revising SIPs in 40 CFR 51.104 and any such
variance or exception does not modify the requirements of the federally
approved Washington SIP until approved by EPA as a SIP revision.
V. Incorporation by Reference
In this document, 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, EPA is proposing to incorporate by
reference the provisions described in Section IV of this preamble. EPA
has made, and will continue to make, these documents generally
available through <a href="https://www.regulations.gov">https://www.regulations.gov</a> and at EPA Region 10
Office (please contact the person identified in the FOR FURTHER
INFORMATION CONTACT section of this preamble for more information).
VI. Statutory and Executive Orders Review
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA 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 CAA. Accordingly, this
proposed 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 proposed action:
<bullet> Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> 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; and
<bullet> Does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land in
Washington except as specifically noted below and is also not approved
to apply 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 as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it
impose substantial direct costs on tribal governments or preempt tribal
law. Washington's SIP is approved to apply on non-trust land within the
exterior boundaries of the Puyallup Indian Reservation, also known as
the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement
Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and
local agencies in Washington authority over activities on non-trust
lands within the 1873 Survey Area. Consistent with EPA policy, the EPA
provided a consultation opportunity to potentially affected tribes in a
letter dated May 24, 2022.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 13, 2023.
Casey Sixkiller,
Regional Administrator, Region 10.
[FR Doc. 2023-05462 Filed 3-22-23; 8:45 am]
BILLING CODE 6560-50-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.