[Federal Register Volume 79, Number 180 (Wednesday, September 17, 2014)]
[Rules and Regulations]
[Pages 55641-55645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-22049]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2011-0968; FRL-9916-47-Region 5]
Approval and Promulgation of Air Quality Implementation Plans;
Indiana; Open Burning Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving a
November 14, 2011, request by Indiana to revise the state
implementation plan (SIP) to incorporate the open burning provisions in
Title 326 of the Indiana Administrative Code (IAC), Article 4, Rule 1
(326 IAC 4-1), Open Burning Rule. EPA is approving this rule for
attainment counties and is taking no action on the rule for Clark,
Floyd, Lake and Porter counties which are nonattainment or maintenance
areas for ozone (O3) or particulate matter (PM).
DATES: This direct final rule will be effective November 17, 2014,
unless EPA receives adverse comments by October 17, 2014. 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 No. EPA-R05-
OAR-2011-0968, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: [email protected].
3. Fax: (312) 692-2450.
4. Mail: Pamela Blakley, Chief, Control Strategies Section, Air
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West
Jackson Boulevard, Chicago, Illinois 60604.
5. Hand Delivery: Pamela Blakley, Chief, Control Strategies
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such
deliveries are only accepted during the Regional Office normal hours of
operation, and special arrangements should be made for deliveries of
boxed information. The Regional Office official hours of business are
Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal
holidays.
Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2011-0968. 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 information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your
[[Page 55642]]
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to EPA without
going through www.regulations.gov your email 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 docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Environmental Protection
Agency, Region 5, Air and Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois 60604. This Facility is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays.
We recommend that you telephone Charles Hatten, Environmental Engineer,
(312) 886-6031 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Charles Hatten, Environmental
Engineer, Control Strategies Section, Air Programs Branch (AR-18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886-6031, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
I. What is the background for this action?
II. Discussion of State Submittal
III. What action is EPA taking today?
IV. Statutory and Executive Order Reviews
I. What is the background for this action?
Open burning is generally prohibited in the state of Indiana.
Indiana state law exempts certain open burning activities under
conditions that minimize the impact on the air quality and public
health. Open burning activities allowed include: maintenance burning,
recreational or ceremonial fires, farm burning, waste oil burning,
prescribed used to facilitate the growth of desired vegetation, and
residential burning.
Indiana's open burning rule at 326 IAC 4-1 [formerly Air Pollution
Code-2, (APC-2)] applies state-wide and was first approved on June 22,
1978 (43 FR 26722), and re-codified on July 16, 1982 (47 FR 30972). On
February 1, 1996 (61 FR 3581), EPA approved a ban on residential open
burning for Clark, Floyd, Lake and Porter counties to reduce VOC
emissions as part of Indiana's fifteen (15) percent rate of progress
plan for the 1-hour O3 standard. This ban on residential
open burning remains a permanent and enforceable control measure in the
state's O3 SIP.
On November 14, 2011, the Indiana Department of Environmental
Management (IDEM) submitted a request to EPA to revise 326 IAC 4-1.
IDEM published several newspaper notices (March 31, 2011, June 25,
2011) informing the public of the revisions to 326 IAC 4-1-3 and 326
IAC 4-1-4. IDEM held a public hearing on these revisions on August 3,
2011. There were no comments received. IDEM's November 14, 2011,
submittal also included certification that adoption of the revisions at
326 IAC 4-1-0.5, 326 IAC 4-1-1, 326 IAC 4-1-2, 326 IAC 4-1-3, 326 IAC
4-1-4, 326 IAC 4-1-4.1, 326 IAC 4-1-4.2, and 326 IAC 4-1-4.3, had been
preceded by adequate notice and public hearing.
II. Discussion of State Submittal
Below is a discussion of Indiana's rule, including an
identification of any significant changes from the previously approved
SIP.
4-1-0.5 Definitions
This section defines several terms, including a revised definition
of ``open burn.'' IDEM consolidated the definition of the terms from
326 IAC 4-1, ``open burning'' and ``open'' into one definition at 326
IAC 4-1-0.5(6), ``open burn.'' The term ``open burn'' means, the
burning of any materials wherein air contaminants resulting from
combustion are emitted directly into the air, without passing through a
stack or chimney from an enclosed chamber. This revision provides
clarity to the definition of ``open burn'' and is approvable into the
Indiana SIP.
4-1-1 Scope
This section describes the rule's applicability. The applicability
remains consistent with the existing SIP and continues to apply to all
open burning state-wide.
Because the revisions to this section are administrative and non-
substantive, EPA finds 326 IAC 4-1-1 remains consistent with the
approved SIP, and therefore, are approvable into Indiana's SIP.
4-1-2 Prohibition Against Open Burning
This section prohibits open burning of any material not exempt, or
authorized, unless approval has been granted by the Commissioner or the
Commissioner's designated agent. There were no substantive changes to
this section of the rule. The revision reflects a wording change. The
language in the SIP reads, ``No person shall open burn any material
except as provided in section 3 or 4.'' Indiana's revised the language
now reads, ``Open burning is prohibited except as allowed in this
rule.''
The revision to this section requires a person or entity subject
this rule to comply with the entire rule and not just certain sections.
Thus, EPA finds the revision to the rule to be consistent with the
approved SIP and is approvable into Indiana's SIP.
4-1-3 Exemptions
In the approved SIP, section 3 of 326 IAC 4-1 identifies those
exemptions for certain open burning activities under conditions that
minimize the impact on air quality and public health.
In section (3)(a)(1) Indiana identifies exemptions in the rule for
open burning for maintenance purposes. This exemption allows open
burning of the following: (1) Vegetation from farms, cemeteries,
drainage ditches and agricultural land, if the burn occurs in an
unincorporated area; (2) wood products from pruning or clearing a
roadside by a county highway department and the initial clearing of a
public utility right-of-way if in an unincorporated area; (3)
undesirable wood structures or remnants; and (4) clean petroleum
products for maintaining or for repairing railroad tracks, but not
including railroad ties. Section (3)(a)(2) applies certain restrictions
to open burning, for maintenance purposes, that is allowed by this
rule. These include: Extinguishing the fire if it creates a nuisance or
a fire hazard; all fires must be attended at all times during burning
until completely extinguished; no burning during unfavorable
meteorological conditions; removal of all asbestos-containing material
before burning of a structure. The language in
[[Page 55643]]
this section (3)(a) remains consistent with the existing SIP.
Section (3)(b) specifies certain conditions that apply to any fires
allowed by this rule in section (3)(c). The language in this section
(3)(b) remains consistent with the existing SIP.
Section (3)(c) allows the following types of fires: Recreational
and ceremonial fires; private residential burning; and waste oil
burning. IDEM added criteria that would allow the burning of two single
family, non-demolished dwellings per calendar year by municipal fire
departments for the purposes of live fire training subject to certain
conditions, including written notification to IDEM and the removal of
material that would otherwise result in toxic air emissions; and the
ceremonial burning of United States flags. These additional exemptions
are subject to both the conditions in section (3)(b) and more specific
conditions associated with each exemption to limit open burning
emissions.
The revisions to section 3 of 326 IAC are not anticipated to
increase the amount or frequency of open burning occurring in Indiana,
and therefore, are approvable into the Indiana SIP.
4-1-4 Emergency Burning
IDEM revised section 4 renaming it ``Emergency burning''. The SIP
approved language in section 4 of 326 IAC 4-1 identified certain types
of open burning not exempt by the rule that would require a person(s)
to obtain prior approval before open burning by the Air Pollution
Control Board (APCB) or its designated agent. Among the list of open
burnings that IDEM would consider granting approval included emergency
burnings. The revisions address the administrative function associated
with open burning approvals in the event of an emergency. IDEM revised
the rule for emergency burning to require written approval by the
Commissioner. Emergency burnings may be authorized for spilled
petroleum products and clean wood waste, vegetation or deceased animals
under certain conditions.
This revision serves to help clarify language in the rule regarding
the approval process for emergency burning. Thus, EPA finds the
revision to the rule to be consistent with the approved SIP when open
burning for emergency purposes, and is approvable into the Indiana SIP.
4-1-4.1 to 4-1-4.3 Open Burning Approval Process
The open burning ``approval process'' is contained in sections 4-1-
4.1 thru 4-1-4.3. The approval process is designed to simplify the
relevant steps for a person(s) or an entity to submit a request to open
burn or obtain a variance from the Commissioner or the Commissioner's
designated agent, similar to requests for approvals for emergency
burning, as noted above in section 4.
Below is a discussion of the various parts of Indiana's open
burning approval process.
4-1-4.1 Open Burning Approval; Criteria and Conditions
Section 4.1(a)--Burning not exempted by Section 3 or 4 of this rule
may be authorized by the issuance of an approval by the Commissioner or
the Commissioner's designated agent, after consideration of an approval
application, for fire training, burning of natural growth derived from
a clearing operation and burning of highly explosive or dangerous
materials for which no alternative disposal method exists, burning of
clean wood products and natural growth.
Section 4.1(b) specifies the criteria that may be considered for
approval for open burning, including: A demonstration that alternative
methods of disposal are impractical; there are not more than five
residences within 500 feet of the proposed burning site; there have
been no open burning violations at the site of the proposed burning or
the applicant; the burning site is located in a county not designated
as a nonattainment area for PM10 (particles that are 10
micrometers in diameter or smaller) or O3 and is not located
in Clark or Floyd County.
Section 4.1(c) prohibits approval of residential burning in Clark,
Floyd, Lake or Porter County.
Section 4.1(d) provides the conditions that any approval for open
burning may be subject to, including: Only clean wood products shall be
burned; no asbestos-containing material shall be burned; no burning
shall be conducted during unfavorable meteorological conditions; and
burning shall be conducted during daylight hours only.
Section 4.1(e) specifies that an approval letter for open burning
shall be valid for no longer than one year from the date of issuance.
However, an approval letter for open burning may be valid for as long
as five years, if the approval application is accompanied by an open
burning plan which must contain a description of the open burning
proposed.
Section 4.1(f) states that the Commissioner may add conditions to
an approval letter, as necessary, to prevent a public nuisance or to
protect public health. Such conditions may be based on local air
quality conditions, including whether the area is a nonattainment
county as defined in 326 IAC 1-4-1 or has been redesignated from
nonattainment to attainment status.
4-1-4.2 Open Burning; Approval Revocation
As a part of the approval process, this section allows the
Commissioner to revoke an approval letter for open burning if the
applicant violates any requirement of Section 4.1(d) or 4.1(f) or
falsifies any information on an application for an approval.
4-1-4.3 Open Burning Approval; Delegation of Authority
This section of the rule states that the Commissioner may delegate
the authority to issue approval letters for open burning to another
agency that has the necessary legal authority to implement an approval
program.
EPA finds the ``approval process'' outlined in 326 IAC 4-1-4.1 to
326 IAC 4-1-4.3 to be consistent with the approved SIP. The revisions
to the rule does not relax IDEM's review process, provides clarity, as
well as simplifies the administrative procedures necessary to obtain
approval or a variance to open burn.
EPA finds Indiana's open burning rule provides a state-wide
prohibition of open burning with reasonable exceptions. Open burning
not specifically exempt may be authorized by the Commissioner for
specific purposes, e.g., fire training or burning of highly explosive
materials, and based upon specified criteria, e.g. alternative methods
of disposal are not feasible and there are not more than five
residences within 500 feet of the proposed burning site. EPA will
recognize approvals for burning not specifically exempted by these
regulations authorized by the Commissioner or the Commissioner's
designated agent provided that a copy of the approval letter and
application be kept on file and made available to EPA upon request.
The revisions to 326 IAC 4-1 range from wording changes and
additions, improve and expand the applicability of the rule and its
impact on air quality statewide. EPA is approving this rule for
attainment counties and is taking no action on the rule for Clark,
Floyd, Lake and Porter counties which are nonattainment or maintenance
areas for O3 or PM. On balance, EPA finds that the rule
strengthens the existing SIP in Indiana and as such, deems the
submittal approvable.
[[Page 55644]]
III. What action is EPA taking today?
EPA is approving a November 14, 2011, request by Indiana to revise
the SIP to update 326 IAC 4-1, Open Burning Rule, because reducing open
burning will reduce PM, volatile organic compounds, and other
pollutants. EPA is approving this rule for attainment counties and is
taking no action on the rule for Clark, Floyd, Lake and Porter counties
which are nonattainment or maintenance areas for O3 or PM.
We are publishing this action without prior proposal because we view
this as a noncontroversial amendment and anticipate no adverse
comments. However, in the proposed rules section of this Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the state plan if relevant adverse
written comments are filed. This rule will be effective November 17,
2014 without further notice unless we receive relevant adverse written
comments by October 17, 2014. If we receive such comments, we will
withdraw this action before the effective date by publishing a
subsequent document that will withdraw the final action. All public
comments received will then be addressed in a subsequent final rule
based on the proposed action. The EPA will not institute a second
comment period. Any parties interested in commenting on this action
should do so at this time. 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. If we do not receive any comments, this action will be
effective November 17, 2014.
IV. 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, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
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
Does not provide 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).
In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the state,
and EPA notes that it will not impose substantial direct costs on
tribal governments or preempt tribal law.
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 action 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 November 17, 2014. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action 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. Parties with objections to this direct final
rule are encouraged to file a comment in response to the parallel
notice of proposed rulemaking for this action published in the proposed
rules section of this Federal Register, rather than file an immediate
petition for judicial review of this direct final rule, so that EPA can
withdraw this direct final rule and address the comment in the proposed
rulemaking. 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, Emissions
Reporting, Incorporation by reference, Ozone, Volatile organic
compounds.
Dated: September 2, 2014.
Susan Hedman,
Regional Administrator, Region 5.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. In Sec. 52.770, the table in paragraph (c) is amended by revising
the entries under the subheading entitled ``Article 4. Burning
Regulations'' and by adding footnote 1 to the end of the table to read
as follows:
Sec. 52.770 Identification of plan.
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(c) * * *
[[Page 55645]]
EPA[hyphen]Approved Indiana Regulations
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Indiana
Indiana citation Subject effective EPA approval date Notes
date
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* * * * * * *
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Article 4. Burning Regulations
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Rule 1. Open Burning \1\
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4-1-0.5.......................... Definitions......... 02/10/2001 09/17/2014, [insert ...................
Federal Register
citation].
4-1-1............................ Scope............... 02/10/2001 09/17/2014, [insert ...................
Federal Register
citation].
4-1-2............................ Prohibition against 02/10/2001 09/17/2014, [insert ...................
open burning. Federal Register
citation].
4-1-3............................ Exemptions.......... 10/28/2011 09/17/2014, [insert ...................
Federal Register
citation].
4-1-4............................ Emergency burning... 10/28/2011 09/17/2014, [insert ...................
Federal Register
citation].
4-1-4.1.......................... Open burning 12/15/2002 09/17/2014, [insert ...................
approval; criteria Federal Register
and conditions. citation].
4-1-4.2.......................... Open burning; 02/10/2001 09/17/2014, [insert ...................
approval revocation. Federal Register
citation].
4-1-4.3.......................... Open burning 02/10/2001 09/17/2014, [insert ...................
approval; Federal Register
delegation of citation].
authority.
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Rule 2. Incinerators
----------------------------------------------------------------------------------------------------------------
4-2-1............................ Applicability....... 12/15/2002 11/30/2004, 69 FR ...................
69531.
4-2-2............................ Incinerators........ 12/15/2002 11/30/2004, 69 FR ...................
69531.
4-2-3............................ Portable 12/15/2002 11/30/2004, 69 FR ...................
incinerators 69531.
(Repealed).
* * * * * * *
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\1\ EPA is approving Rule 1 for the counties of Adams, Allen, Bartholomew, Benton, Blackford, Boone, Brown,
Carroll, Cass, Clay, Clinton, Crawford, Daviess Dearborn, Decatur, De Kalb, Delaware, Dubois, Elkhart,
Fayette, Fountain, Franklin, Fulton, Gibson, Grant, Greene, Hamilton, Hancock, Harrison, Hendricks, Henry,
Howard, Huntington, Jackson, Jasper, Jay, Jefferson, Jennings, Johnson, Knox, Kosciusko, La Porte, Lagrange,
Lawrence, Madison, Marion, Marshall, Martin, Miami, Monroe, Montgomery, Morgan, Newton, Noble, Ohio, Orange,
Owen, Parke, Perry, Pike, Posey, Pulaski, Putnam, Randolph, Ripley, Rush, St. Joseph, Scott, Shelby, Spencer,
Starke, Steuben, Sullivan, Switzerland, Tippecanoe, Tipton, Union, Vanderburgh, Vermillion, Vigo, Wabash,
Warren, Warrick, Washington, Wayne, Wells, White, and Whitley.
* * * * *
[FR Doc. 2014-22049 Filed 9-16-14; 8:45 am]
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