**ENVIRONMENTAL PROTECTION AGENCY**

**40 CFR Part 52**

**\[EPA-R03-OAR-2007-0450\]; FRL- \]**

**Approval and Promulgation of Air Quality Implementation Plans;
Delaware;**

**Open Burning**

**AGENCY**: Environmental Protection Agency (EPA).

**ACTION:** Proposed rule.

**SUMMARY:** EPA is proposing to approve a State Implementation Plan
(SIP) revision submitted by the State of Delaware. This SIP revision
pertains to the amendments of Delaware's open burning regulation. This
action is being taken under the Clean Air Act (CAA).

**DATES:** Written comments must be received on or before \[[insert date
30 days from date of publication]{.underline}\].

**ADDRESSES:** Submit your comments, identified by Docket ID Number
**EPA-R03-OAR-**

**2007-0450** by one of the following methods:

A. [www.regulations.gov]{.underline}. Follow the on-line instructions
for submitting comments.

B. E-mail: <cripps.christopher@epa.gov>.

C. Mail: **EPA-R03-OAR-2007-0450**, Christopher Cripps, Acting Chief,
Air Quality Planning

Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

D. Hand Delivery: At the previously-listed EPA Region III address. Such
deliveries are only accepted during the Docket=s normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.

***Instructions:*** Direct your comments to Docket ID No.
**EPA-R03-OAR-2007-0450**. 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]{.underline},
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]{.underline} or e-mail. The
[www.regulations.gov]{.underline} website is an Aanonymous access@
system, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an e-mail comment directly to EPA without going through
[www.regulations.gov]{.underline}, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA may
not be able to consider your comment. Electronic files should avoid the
use of special characters, any form of encryption, and be free of any
defects or viruses.

***Docket:*** All documents in the electronic docket are listed in the
[www.regulations.gov]{.underline} index. Although listed in the index,
some information is not publicly available, i.e., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically in
[www.regulations.gov]{.underline} or

in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal
are available at the Delaware Department of Natural Resources &
Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware
19901.

**FOR FURTHER INFORMATION CONTACT**: Rose Quinto, (215) 814‑2182, or by
e-mail at <quinto.rose@epa.gov>.

**SUPPLEMENTARY INFORMATION:**

**I. Background**

On May 2, 2007, the Delaware Department of Natural Resources and
Environmental Control (DNREC) submitted a revision to its SIP for
Regulation No. 1113 -- Open Burning. The SIP revision includes (1)
expanding the open burning ban from New Castle and Kent Counties to
statewide; (2) expanding the open burning ban from June 1 through August
31 in the current regulation to May 1 through September 30; and (3) to
clarify the prohibitions in the existing regulation and their
interaction with other applicable laws and regulations.

**II. Summary of SIP Revision**

Delaware's Open Burning Regulation, Regulation No. 1113, applies to all
open burning activities in the State of Delaware which includes the
counties of New Castle, Kent and Sussex. The following are the
prohibitions and provisions of open burning activities in the State of
Delaware during May 1 through September 30:

(1) The regulation prohibits leaf and refuse burning statewide.

(2) The regulation allows the following without permission from DNREC:
    domestic burning of branches and limbs from trees and shrubs
    statewide; and agricultural burning statewide to cultivate and/or
    prepare soil for the production of crops or the support of
    livestock.

(3) The regulation requires permission from DNREC for the following
    types of open burning: prescribed burning for conservation
    practices, wildlife habitat management, or plant, pest or disease
    control; and burning of wooden buildings for fire fighting
    instruction conducted by authorized fire companies.

(4) Commercial operations are not permitted to burn for disposal, e.g.
    burning of tree limbs, stumps as a result of land clearing, and
    construction debris.

(5) All allowable types of burning can be conducted between the hours of
    8:00 am to 4:00 pm. Approval can be obtained from DNREC to burn
    outside of those hours for reasons of safety, smoke reduction or a
    more efficient or complete burn.

(6) The following types of burning are exempt from the regulation, and
    can be conducted at any time: cooking fires; recreational fires;
    ceremonial fires; emergency signaling flares; backburning to
    suppress wildfires; and fire fighting instruction conducted by the
    Delaware State Fire School.

**III. Proposed Action**

EPA is proposing to approve the Delaware SIP revision for Regulation No.
1113 -- Open Burning submitted on May 2, 2007. This regulation will
result in the control of volatile organic compound (VOC) and nitrogen
oxides (NOx) emissions by establishing rules for open burning activities
in the State of Delaware during the ozone season. EPA is soliciting
public comments on the issues discussed in this document. These comments
will be considered before taking final action.

**IV. Statutory and Executive Order Reviews**

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a \"significant regulatory action\" and therefore
is not subject to review by the Office of

Management and Budget. For this reason, this action is also not subject
to Executive Order 13211, \"Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use\" (66 Fed. Reg.
28355 (May 22, 2001)). This action merely proposes to approve state law
as meeting Federal requirements and imposes no additional requirements
beyond those imposed by state law. Accordingly, the Administrator
certifies that this proposed rule will not have a significant economic
impact on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 [et seq]{.underline}.). Because this rule
proposes to approve pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by state
law, it does not contain any unfunded mandate or significantly or
uniquely

affect small governments, as described in the Unfunded Mandates Reform
Act of 1995 (Public Law 104‑4). This proposed rule also does not have a
substantial direct effect on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it have substantial direct effects
on the States, on the relationship between the national government and
the States, or on the distribution of power and responsibilities among
the various levels of government, as specified in Executive Order 13132
(64 FR 43255, August 10, 1999), because it merely proposes to approve a
state rule implementing a Federal requirement, and does not alter the
relationship or the distribution of power and responsibilities
established in the Clean Air Act. This proposed rule also is not subject
to Executive Order 13045 (62 FR 19885, April 23, 1997), because it
approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA=s role is to approve state choices,
provided that they meet the criteria of the Clean Air Act. In this
context, in the absence of a prior existing requirement for

the State to use voluntary consensus standards (VCS), EPA has no
authority to disapprove a SIP submission for failure to use VCS. It
would thus be inconsistent with applicable law for EPA, when it reviews
a SIP submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements of
section 12(d) of the National Technology Transfer and Advancement Act of
1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this
proposed rule, EPA has taken the necessary steps to eliminate drafting
errors and ambiguity, minimize potential litigation, and provide a clear
legal standard for affected conduct. EPA has complied with Executive
Order 12630 (53 FR 8859, March 15, 1988) by examining the takings
implications of the rule in accordance with the AAttorney General=s
Supplemental Guidelines for the Evaluation of Risk and Avoidance of
Unanticipated Takings@ issued under the executive order.

This proposed rule pertaining to Delaware's Open Burning Regulation,
does not impose an information collection burden under the provisions of
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 [et
seq]{.underline}.).

**List of Subjects in 40 CFR Part 52**

Environmental protection, Air pollution control, Nitrogen dioxide,
Ozone, Reporting and recordkeeping requirements, Volatile organic
compounds.

**Authority:** 42 U.S.C. 7401 [et seq]{.underline}.

/s/

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Dated: June 12, 2007 Donald S. Welsh,

Regional Administrator,

Region III.