Proposed Rule2023-15751
Air Plan Approval; WA; Yakima County Outdoor and Agricultural Burning Rule Revisions
Primary source
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Published
July 26, 2023
Issuing agencies
Environmental Protection Agency
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 142 (Wednesday, July 26, 2023)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <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="https://www.regulations.gov">https://www.regulations.gov</a>. 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 <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Claudia Vaupel, (206) 553-6121,
<a href="/cdn-cgi/l/email-protection#ddabbca8b8adb1f3beb1bca8b9b4bc9db8adbcf3bab2ab"><span class="__cf_email__" data-cfemail="4234233727322e6c212e2337262b23022732236c252d34">[email protected]</span></a>.
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 (PM<INF>10</INF>) \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 PM<INF>10</INF>. (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 <a href="https://www.epa.gov/ejscreen/what-ejscreen">https://www.epa.gov/ejscreen/what-ejscreen</a>.
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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 <a href="https://www.epa.gov/sites/default/files/2021-04/documents/ejscreen_technical_document.pdf">https://www.epa.gov/sites/default/files/2021-04/documents/ejscreen_technical_document.pdf</a>.
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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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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:
<bullet> Is not a significant regulatory action subject to review
by the Office of Management and Budget under
[[Page 48150]]
Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR
21879, April 11, 2023);
<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 subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<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.
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
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