Clean Air Act Approval and Promulgation of Air Quality Implementation Plan; Montana; East Helena Lead State Implementation Plan

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Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: June 18, 2001 (Volume 66, Number 117)]
[Rules and Regulations]
[Page 32760-32767]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jn01-21]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MT-001-0024, MT-001-0025, MT-001-0026; FRL-6986-1]

Clean Air Act Approval and Promulgation of Air Quality
Implementation Plan; Montana; East Helena Lead State Implementation
Plan

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: The EPA is partially approving and partially disapproving the
East Helena Lead (Pb) State Implementation Plan (SIP) revisions
submitted by the Governor of Montana on August 16, 1995, July 2, 1996,
and October 20, 1998. The EPA is partially approving and partially
disapproving these SIP revisions because, while they strengthen the
SIP, they also do not fully meet the Act's provisions regarding plan
requirements for nonattainment areas. The intended effect of this
action is to make federally enforceable those provisions that EPA is
partially approving, and not make federally enforceable those
provisions that EPA is partially disapproving. The EPA is taking this
action under sections 110, 179, and 301 of the Clean Air Act (Act).

EFFECTIVE DATE: This final rule is effective July 18, 2001.

ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the Air
and Radiation Program, Environmental Protection Agency, Region VIII,
999 18th Street, Suite 300, Denver, Colorado, 80202 and copies of the
Incorporation by Reference material at the Air and Radiation Docket and
Information Center, Environmental Protection Agency, 401 M Street, SW.,
Washington, DC 20460. Copies of the State documents relevant to this
action are available for public inspection at the Montana Department of
Environmental Quality, Air and Waste Management Bureau, 1520 E. 6th
Avenue, Helena, Montana 59620.

FOR FURTHER INFORMATION CONTACT: Kerri Fiedler, EPA, Region VIII, (303)
312-6493 or Laurie Ostrand, EPA, Region VIII, (303) 312-6437.

SUPPLEMENTARY INFORMATION:

Table of Contents

Definitions
I. Background
II. EPA's Action on the State of Montana's Submittal
A. Why Is EPA Partially Approving Parts of the State of
Montana's Plan?
B. Why Is EPA Partially Disapproving Parts of the State of
Montana's Plan?
C. What Happens When EPA Partially Approves and Partially
Disapproves the State of Montana's Plan?
D. Miscellaneous
E. Why Is EPA Completing a Separate Direct Final Rulemaking on
the East Helena Lead SIP?
III. What Comments Were Received on EPA's Proposed Action and How Is
EPA Responding to Those Comments?
IV. Summary of EPA's Final Action.
IV. Administrative Requirements.

[[Page 32761]]

Definitions

For the purpose of this document, we are giving meaning to certain
words as follows:
(i) The words or initials Act or CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
(ii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
(iii) The initials Pb mean or refer to the element lead.
(iv) The initials MDEQ mean or refer to the Montana Department of
Environmental Quality.
(v) The initials SIP mean or refer to State Implementation Plan.
(vi) The words State or Montana mean the State of Montana, unless
the context indicates otherwise.

I. Background

On November 6, 1991 (56 FR 56694), we designated the East Helena
area as nonattainment for Pb. This designation was effective on January
6, 1992 and required the State to submit a part D SIP by July 6, 1993.
On August 16, 1995, July 2, 1996 and October 20, 1998 the Governor of
Montana submitted SIP revisions to meet the part D SIP requirements. We
proposed to partially approve and partially disapprove the State's
submittals on October 10, 2000 (65 FR 60144). Refer to the October 10,
2000 proposed rulemaking for a complete discussion of our review of the
State submittals.
On November 27, 2000, the Governor of Montana submitted additional
revisions to the East Helena Pb SIP. We are addressing the November 27,
2000 submittal in a separate action published today. See discussion
below in section II.E.

II. EPA's Action on the State of Montana's Submittal

A. Why Is EPA Partially Approving Parts of the State of Montana's Plan?

In our October 10, 2000 proposed rulemaking, we proposed to
partially approve the East Helena Pb SIP revisions. Apart from comments
suggesting we fully approve the plan, we did not receive any adverse
comments on our proposal to partially approve the SIP. We still believe
it is appropriate to partially approve the SIP. See our proposed
rulemaking action (65 FR 60144) for a more detailed discussion of our
evaluation of the State's submittal.
Apart from those provisions we are disapproving, we are approving
all other provisions of the SIP. We are approving the other parts of
the SIP because we believe they meet our SIP approval criteria and
provide enforceable emission limitations on Pb sources in East Helena.
We caution that if sources are subject to more stringent requirements
under other provisions of the Act (e.g., section 111, part C, or SIP-
approved permit programs under part A), our partial approval of the SIP
(including emission limitations and other requirements), would not
excuse sources from meeting these other, more stringent requirements.
Also, our partial approval of the SIP is not meant to imply any sort of
applicability determination under other provisions of the Act (e.g.,
section 111, part C, or SIP-approved permit programs under part A).

B. Why Is EPA Partially Disapproving Parts of the State of Montana's
Plan?

In our October 10, 2000 proposed rulemaking, we proposed to
partially disapprove portions of the East Helena Pb SIP. We have
considered the comments received and still believe we should partially
disapprove the SIP as proposed. We refer the reader to the comments
received and our responses in section III, below.
We are partially disapproving the SIP revisions, because they do
not fully meet the Act's provisions regarding plan submissions and
requirements for nonattainment areas. The current version of East
Helena's Pb SIP does not entirely conform to the requirement of section
110(a)(2) of the Act that SIP limits must be enforceable nor to the
requirement of section 110(i) that the SIP can be modified only through
the SIP revision process. In a March 24, 1998 letter to MDEQ, we raised
concerns about places in the stipulation where MDEQ has the discretion
to modify existing provisions or add future documents or compliance
monitoring methods to the Pb SIP. The stipulations did not make clear
whether any of these changes would be submitted as SIP revisions or by
any other process for us to review and approve. We indicated that, in
places where the stipulation allowed MDEQ to exercise discretion, the
words ``and EPA'' must be added. The State did not revise the SIP to
address our concerns and in a November 16, 1999 letter to us the MDEQ
indicated that the department discretion issues would be addressed at a
later date. We are partially disapproving the SIP because of the
provisions that allow department discretion and two other provisions
that contain enforceability issues related to a test method.
The conditions allowing department discretion are discussed in
Table 1 below:

Table 1.--Department Discretion
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Provision No. Description
----------------------------------------------------------------------------------------------------------------
Asarco Stipulation Provision 15 and American Chemet Indicates that stipulations may be modified when
Stipulation Provision 20. sufficient grounds exist. For example, if the
State demonstrates through modeling or other
means that an alternative plan could still meet
the NAAQS, the plan could be modified. Although
our March 24, 1998 letter may have indicated that
these provisions would be acceptable if MDEQ
could confirm our interpretations, we now believe
that these provisions need to be revised in the
same way that the State revised similar
provisions in stipulations in the Billings SIP.
Asarco Stipulation Provision 16............................. Indicates that revisions to attachments of the
stipulation can be made, once approved by MDEQ.
The stipulation does not make clear whether MDEQ
approval means that the revised attachments will
be deemed incorporated in to the SIP. We believe
that, since the attachments are a part of the SIP
and pertain mostly to enforceability provisions,
any revision to an attachment should be evaluated
for significance \1\ and if determined to be
significant, the revision must be approved as a
SIP revision or approved through title Title V
process.\2\ We suggested to MDEQ that where the
``Department'' appears in the stipulations ``and
EPA'' should be added.
Asarco Exhibit A, Section 6................................. References Attachment 6, ``Quality Assurance/
Quality Control (QA/QC) and Standard Operating
Procedures (SOP) for Continuous Opacity
Monitoring Systems.'' Any revision to an
attachment and provision should be evaluated for
significance \3\, and if determined to be
significant, the revision must be approved as a
SIP revision or approved through the Title V
process. EPA has suggested to MDEQ that where
``the Department'' appears in the stipulations
``and EPA'' should be added.

[[Page 32762]]

Asarco Exhibit A, Section 7(A)(2)........................... Indicates that certain test methods are to be
used, or other methods as approved by MDEQ. Any
revision to a testing method or provision should
be evaluated for significance \4\, and it
determined to be significant, the revision must
be approved as a SIP revision or approved through
the Title V process. EPA has suggested to MDEQ
that where ``the Department'' appears in the
stipulations ``and EPA'' should be added.
Asarco Exhibit A, Section 11(c)............................. Indicates that if the Baghouse Maintenance Plan,
(Attachment 7), is revised it needs to be
reviewed and approved by MDEQ. Any revision to an
attachment should be evaluated for significance
\5\, and if determined to be significant, the
revision must be approved as a SIP revision or
approved through the Title V process. EPA has
suggested to MDEQ that where ``the Department''
appears in the stipulations ``and EPA'' should be
added.
Asarco Exhibit A, Section 12(A)(7).......................... Indicates that the Baghouse Maintenance Plan,
(Attachment 7), will need further revisions. Once
revised, it will be reviewed and approved by
MDEQ. Any revision to an attachment should be
evaluated for significance \6\, and if determined
to be significant, the revision must be approved
as a SIP revision or approved through the Title V
process. EPA has suggested to MDEQ that where
``the Department'' appears in the stipulations
``and EPA'' should be added.
Asarco Exhibit A, Section 12(B)............................. Indicates that if attachments are revised they
need to be reviewed and approved by MDEQ. Any
revision to an attachment should be evaluated for
significance \7\, and if determined to be
significant, the revision must be approved as a
SIP revision or approved through the Title V
process. EPA has suggested to MDEQ that where
``the Department'' appears in the stipulations
``and EPA'' should be added.
----------------------------------------------------------------------------------------------------------------
\1\ ``Evaluated for significance'' means that the State must submit to us all modifications to the SIP text
(including minor and clerical corrections or modifications ) and all MDEQ approvals of alternative
requirements and methodologies. If the modification to the text or alternative requirement or methodology is
proposed as a ``minor modification'' (or clerical correction) we will inform the State, within 45 days from
the date of submittal, of our determination whether the modification or alternative is major or minor, and if
it is minor, of our approval of the modification or alternative. (We caution that our failure to make such
determination within 45 days does not mean that the modification or alternative is either minor or approved.)
If we do not approve the modification of text, alternative requirement, or alternative methodology as minor,
the State must adopt the modification as a SIP revision in accordance with section 110(a)(2) of the Act and
submit it to us for approval. We will then act on the SIP revision in accordance with the provision of Title I
of the Act, pursuant to notice and comment rulemaking.
\2\ As indicated in our March 24, 1998 letter, to use the Title V approach, the stipulation or SIP document must
contain enabling language that would allow the SIP to be revised through the Title V permit process. Our March
5, 1996 memorandum, ``White Paper Number 2 for Improved Implementation of the Part 70 Operating Permits
Program,'' (White Paper) suggests enabling language in Attachment B.II. The White Paper (section II.A and
Attachment A) discusses the streamlining process that must be followed in order to revise SIPs through the
Title V permit. Note, however, that until the State is actually issuing Title V permits for these sources, a
source-specific SIP revision would be necessary.
\3\ See footnote 1 above.
\4\ See footnote 1 above.
\5\ See footnote 1 above.
\6\ See footnote 1 above.
\7\ See footnote 1 above.

In addition to the department discretion issues, we believe that
sections 2(A)(22), 2(A)(28), and 5(G)\8\ of Asarco Exhibit A, contain
enforceability problems. These sections, which discuss how moisture
content and silt content will be determined, indicate that sampling
will be performed by specified methods or ``equivalent'' methods. The
definition is not clear as to who will determine that the
``equivalent'' methods are acceptable. Any revision to a testing method
or provision should be evaluated for significance and if determined to
be significant, the revision must be approved as a SIP revision or
approved through the Title V process. (See footnote 1 above.)
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\8\ In our October 10, 2000 proposal notice we identifiefd
concerns with only sections 2(A)(22) and 2(A)(28) and not section
5(G). However, since the proposal notice we have found the same
concern in 5(G) as in the other sections.
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Because these provisions could allow changes in requirements
without EPA and public review or EPA approval, and could allow use of
test methods not accepted by us, the East Helena Pb SIP revisions
present Federal enforceability issues and thus fail to comply with the
general enforceability requirements of section 172(c)(6) of the Act.
Therefore, we are partially approving and partially disapproving the Pb
SIP revision under section 110(k)(3) of the Act. With this partial
approval and partial disapproval, we are incorporating into the
federally approved SIP all provisions of the stipulation, exhibits, and
attachments except those provisions that allow the Department or
sources to modify the SIP without seeking SIP approval through us.
(Please see Section IV (``Summary of EPA's Final Action'') below.) We
note that portions of the SIP we are approving indicate that under
certain circumstances Asarco may need to revise attachments to Exhibit
A. Since we are not approving the Department's discretion to allow
these revisions unilaterally, we interpret these provisions to mean
that revisions of the attachments for Exhibit A will be adopted at the
State level and submitted as a SIP revision to us for approval.
Additionally, we do not believe that our disapproval of the above-
mentioned provisions would render the SIP more stringent than the State
of Montana intends, since our action does not change the stringency of
any of the substantive requirements the State of Montana has imposed
and is currently able to enforce through the SIP.

C. What Happens When EPA Partially Approves and Partially Disapproves
the State of Montana's Plan?

By partially approving the SIP, we are making the approved portions
of the State's submittal federally enforceable (and enforceable by
citizens under the Act). Those portions of the SIP that we disapprove
are not made federally enforceable. We believe that the approved
portions of the East Helena Pb SIP, except for those provisions that we
are disapproving, satisfy the Act's criteria for Pb nonattainment SIPs.
Even though we are disapproving portions of the SIP, the State is not
required to revise the SIP to fully meet the Act's Pb nonattainment
requirements. Therefore, because the State is not required to complete
any further SIP revisions as a result of the partial disapproval,
sanctions and Federal Implementation Plan (FIP) clocks under sections
179(a)

[[Page 32763]]

and 110(c), respectively, will not be started by our partial
disapproval of the East Helena Pb SIP.

D. Miscellaneous

Under section 179(c)(1), we have the responsibility for determining
whether a nonattainment area has attained the Pb NAAQS. We must make an
attainment determination as expeditiously as practicable, but no later
than 6 months after the attainment date for the area. The attainment
date for East Helena was January 6, 1997. We make the attainment
determination for a nonattainment area based solely on an area's air
quality data.\9\ Based on the air quality data currently in the AIRS
database and pursuant to section 179(c)(1) of the Act, we have
determined that the East Helena Pb nonattainment area has attained the
Pb NAAQS through calendar year 1999.
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\9\ See Guidance Memorandum from Sally L. Shaver, Director,
Office of Air Quality Planning and Standards, OAQPS, to Regional Air
Division Directors, entitled ``Attainment Determination Policy for
Lead Nonattainment Areas,'' dated June 22, 1995.
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While we may determine that an area's air quality data indicate
that the area is meeting the Pb NAAQS for a specified period of time,
this does not eliminate the State's responsibility under the Act to
continue to implement the requirements of the approved Pb SIP. Even if
we determine that an area has attained the standard, the area will
remain designated as nonattainment until the State has requested, and
we approve the State's request, for redesignation to attainment. In
order for an area to be redesignated to attainment, the State must
comply with the requirements provided in sections 107(d)(3)(E) and
172(a) of the Act.
Finally, in our notice of proposed rulemaking we proposed certain
regulatory text. We noted an error in our proposed regulatory text and
in this final action are correcting that error. Specifically, in the
proposed regulatory text at Sec. 52.1370(c)(51)(i)(A) we indicated that
we were incorporating by reference the stipulation, exhibit A and
attachments (excluding certain provisions) adopted by Board order on
August 28, 1998. We believe we should not have included exhibit A and
attachments, because a closer look at the August 28, 1998 Board order
indicates that it is incorporating changes made only in ``the attached
stipulation.'' The ``attached stipulation'' shows changes in the 1996
stipulation and does not include exhibit A or attachments. Also at
Sec. 52.1370(c)(51)(i)(B) we indicated that we were incorporating by
reference the stipulation, exhibit A and attachments (excluding certain
provisions) adopted by Board order on June 21, 1996. The excluded
provisions should have included both those identified in
Sec. 52.1370(c)(51)(i)(B) and those identified in
Sec. 52.1370(c)(51)(i)(A). We have corrected this by moving exclusions
identified in Sec. 52.1370(c)(51)(i)(A) in the notice of proposed
rulemaking to Sec. 52.1370(c)(51)(i)(B) in this notice of final
rulemaking. We also have removed Sec. 52.1370(c)(51)(ii)(D) and
Sec. 52.1370(c)(51)(ii)(E) from our notice of proposed rulemaking in
response to comments. Please see section III, ``What Comments Were
Received on EPA's Proposed Action and How Is EPA Responding to Those
Comments?'' The final regulatory text at the end of this notice has
been revised to incorporate the changes mentioned above.

E. Why Is EPA Completing a Separate Direct Final Rulemaking on the East
Helena Lead SIP?

Subsequent to our October 10, 2000 proposed rulemaking, the State
of Montana submitted another revision to the East Helena Pb SIP. We
believe the revisions submitted on November 27, 2000 are minor, and we
have completed a direct final rulemaking to approve them into the SIP
(see the separate direct final rulemaking on the East Helena Pb SIP
also published in today's edition of the Federal Register). Since the
State revised portions of the plan on which we proposed action, we
believe we should act on the new provisions at the same time we take
final action on our proposed rulemaking so that the end result will be
a federally approved plan that is consistent with the current State
plan (except for those provisions of the plan that we are partially
disapproving).

III. What Comments Were Received on EPA's Proposed Action and How
Is EPA Responding to Those Comments?

We proposed to partially approve and partially disapprove the SIP
due to concerns about various provisions in the SIP that allow
department discretion to alter the SIP. We received two comments
opposing our proposed action to partially approve and partially
disapprove the SIP due to department discretion. We have considered the
comments received and believe it is still appropriate to partially
disapprove the SIP as submitted. In addition, we received two comments
pertaining to the regulatory text we had proposed at the end of our
notice and the appropriateness of incorporating certain documents under
the ``additional material'' section. We have considered the comments we
received and have revised our proposed regulatory text somewhat. The
following is a summary of the comments we received and our response to
the comments:
(1) Comment: We received two comments concerning our position on
department discretion, claiming that future changes to equipment and
processes will contravene the specific language of the SIP but will
have no direct effect on the facility's emissions or the State's
attainment demonstration. The commenters believe that the State should
be able to make these changes without triggering the SIP review process
and that the foundation of the Act is a partnership between EPA and the
State which assigns primary responsibility to the State for ensuring
compliance with the National Ambient Air Quality Standards (NAAQS). In
addition, one of the commenters believes that the Act allows us to call
for a SIP revision (a ``SIP Call'' under section 110(k)(5) of the Act)
when the State's exercise of that discretion weakens the SIP.
Response: Section 110(i) of the Act (42 U.S.C. 7410(i)) prohibits
States and EPA, except in certain limited circumstances, which do not
apply to the East Helena Pb SIP, from taking any action to modify a
requirement of a SIP except by SIP revisions. We do not agree that
Montana or EPA should be free to make changes to SIPs that may
contravene the specific language of the SIP but have no direct effect
on the facility's emissions or the State's attainment demonstration.
Section 110(i) by its terms requires that changes in SIP requirements
must be made by the SIP revision process. That process gives the public
the opportunity to review and comment on the reasonableness and
adequacy of the requirements that are to be imposed, and gives us an
opportunity to review all changes. Also, we do not find a SIP Call to
be a satisfactory alternative. We believe we should address the
question of appropriate SIP revisions in advance rather than waiting to
determine that a State's exercise of a department discretion has
weakened the SIP.
(2) Comment: We received a comment in regard to the Montana Board
of Environmental Review approving a new SIP revision in September 2000,
which had not yet been submitted to EPA for review and approval.
Because the version of the SIP proposed in our rulemaking (See 65 FR
60144) is different than the current SIP enforced by the State, we were
asked to defer our final approval until the most recent Pb SIP revision
could be included.
Response: Elsewhere in today's Federal Register, we are acting on
the

[[Page 32764]]

subsequent SIP revision to approve the submittal as a direct final
rule.
(3) Comment: We received two comments concerning our proposed
language in 40 CFR 52.1370(c)(51)(ii) that would include two Montana
Air Quality Permits and two letters from MDEQ to EPA Region 8. The two
commenters are concerned that, if they are included as ``additional
material'' in the regulatory text of the Montana SIP, any change to the
conditions, provisions, and limitations contained in the two permits
identified in 40 CFR 52.1370(c)(51)(ii), could only be accomplished via
the SIP revision process.
Response: We agree with the comments in regard to the proposed
language in 40 CFR 52.1370(c)(51)(ii) concerning the two Montana Air
Quality Permits. In the final rule we are removing the Montana Air
Quality Permits from the proposed language in 40 CFR
52.1370(c)(51)(ii). The two letters from MDEQ to EPA Region 8, however,
should remain a part of the additional material. These letters were
submitted to us by MDEQ to help us interpret portions of the East
Helena Pb SIP and are key to our decision to partially approve and
partially disapprove the East Helena Pb SIP.
(4) Comment: One commenter questioned whether the existing language
in the Asarco stipulation is sufficient to enable adopting equivalent
alternative requirements in the Pb SIP through the Title V process. The
language in the SIP reads:

The requirements of this Stipulation may also be modified by
equivalent alternative requirements implemented through the state
operating permit program under authorization of Title V of the
Federal Clean Air Act. The procedures for implementing equivalent
alternative requirements must meet federal requirements for
modifications of SIPs through the state operating permits.
Equivalent alternative requirements may be adopted only after a
demonstration that their adoption will assure attainment and
maintenance of the NAAQS.

Response: We do not believe that the existing enabling language is
sufficient to revise the Pb SIP through the Title V process. We believe
that, at a minimum, the enabling language should include procedures to
make sure that any SIP revisions through the Title V process follow the
significant permit revisions process; satisfy the provisions and terms
of 40 CFR 70.6(a)(1)(iii); and establish procedures for determining
equivalency. In addition, the enabling language should indicate which
provisions of the Pb SIP can be revised through the Title V permit
process.
(5) Comment: We received one comment requesting clarification
regarding the process for obtaining EPA approval for changes in the
department discretion provisions. The commenter read the Federal
Register notice, in light of the Technical Support Document, to provide
that: (1) All modifications to SIP text and MDEQ approval of
alternative requirements and methodologies must be submitted to EPA;
(2) EPA will determine, for each submittal, whether the modification is
a minor modification and notify the MDEQ of its determination within 45
days; (3) if the change is not approved as minor, it must be approved
as a SIP revision; provided, however, that if the SIP is amended to
allow it, non-minor changes may be approved, in the alternative,
through the Title V permit process. The commenter asked that we confirm
whether or not this understanding is accurate and that we clarify what
standard will be applied to determine whether a proposed change is a
minor modification.
Response: The commenter's understanding is correct and is
consistent with footnotes 1 and 2 of this document. We intend to use
the March 30, 1993 memorandum from Gilbert H. Wood, Chief, Emissions
Measurement Branch, Office of Air Quality Planning and Standards, to
the Emission Measurement Branch, entitled ``Handling Requests for
Minor/Major Modifications/Alternative Testing and Monitoring Methods or
Procedures Approvals and Disapprovals' (the Gil Wood memo) for
determining whether a proposed change is a minor modification, at least
until the Gil Wood memo is superceded by more current guidance. We will
include a copy of the Gil Wood memo in the docket for this SIP action.

IV. Summary of EPA's Final Action

After reviewing the comments received we still believe it is
appropriate to partially approve and partially disapprove the East
Helena Pb SIP. Apart from those provisions we are disapproving, we are
approving all other aspects of the East Helena Pb SIP. The specific
provisions we are disapproving pertain to department discretion
provisions in the SIP or provisions that allow sources to modify
certain aspects of the plan.
We are disapproving the following phrases, words, or section in
exhibit A of the stipulation by the MDEQ and Asarco adopted by order
issued on June 21, 1996, by the Montana Board of Environmental Review:
(1) The words, ``or an equivalent procedure'' in the second and
third sentences in section 2(A)(22) of exhibit A;
(2) The words, ``or an equivalent procedure'' in the second and
third sentences in section 2(A)(28) of exhibit A;
(3) The words, ``or an equivalent procedure'' in the second
sentence in section 5(G) of exhibit A;
(4) The sentence, ``Any revised documents are subject to review and
approval by the Department as described in section 12,'' from section
6(E) of exhibit A;
(5) The words, ``or a method approved by the Department in
accordance with the Montana Source Testing Protocol and Procedures
Manual shall be used to measure the volumetric flow rate at each
location identified,'' in section 7(A)(2) of exhibit A;
(6) The sentence, ``Such a revised document shall be subject to
review and approval by the Department as described in section 12,'' in
section 11(C) of exhibit A;
(7) The sentences, ``This revised Attachment shall be subject to
the review and approval procedures outlined in section 12(B). The
Baghouse Maintenance Plan shall be effective only upon full approval of
the plan, as revised. This approval shall be obtained from the
Department by January 6, 1997. This deadline shall be extended to the
extent that the Department has exceeded the time allowed in section
12(B) for its review and approval of the revised document,'' in section
12(A)(7) of exhibit A;
(8) Section 12(B) of exhibit A.
We are disapproving paragraphs 15 and 16 of the stipulation by the
MDEQ and Asarco adopted by order issued on June 21, 1996 by the Montana
Board of Environmental Review.
We are disapproving paragraph 20 of the stipulation by the MDEQ and
American Chemet adopted by order issued on August 4, 1995 by the
Montana Board of Environmental Review.
We are also correcting and modifying the proposed regulatory text
as indicated in sections II.D and II.E above.
Finally, pursuant to section 179(c)(1), we are determining that the
East Helena nonattainment area has attained the Pb NAAQS. As indicated
above, this does not eliminate the State's responsibility under the Act
to continue to implement the requirements under the approved Pb SIP.
Even if we determine that an area has attained the standard, the area
will remain designated as nonattainment until the State has requested,
and we approve the State's request for, redesignation to attainment.

[[Page 32765]]

We caution that if sources are subject to more stringent
requirements under other provisions of the Act (e.g., section 111, part
C, or SIP approved permit programs under part A), our partial approval
of the SIP (including emission limitations and other requirements),
would not excuse sources from meeting those other, more stringent
requirements. Also, our partial approval of the SIP is not meant to
imply any sort of applicability determination under other provisions of
the Act (e.g., section 111, part C, or SIP approved permit programs
under part A).

V. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''

B. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.

C. Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that 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.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132, because it
merely approves a state rule implementing a federal standard, and does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.

D. Executive Order 13175

Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This final rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, 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 in Executive Order 13175.
This action does not involve or impose any requirements that affect
Indian Tribes. Thus, Executive Order 13175 does not apply to this rule.

E. Regulatory Flexibility

The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
This partial approval rule will not have a significant impact on a
substantial number of small entities because SIP approvals under
section 110 and 301 and subchapter I, part D of the Clean Air Act do
not create any new requirements but simply approve requirements that
the State is already imposing. Therefore, because the Federal SIP
approval does not create any new requirements, I certify that this
action will not have a significant economic impact on a substantial
number of small entities. Moreover, due to the nature of the Federal-
State relationship under the Clean Air Act, preparation of flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co., v.
U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
Moreover, EPA's partial disapproval rule will not have a
significant impact on a substantial number of small entities because
the partial disapproval action affects only two sources of air
pollution in East Helena, Montana: Asarco and American Chemet. Only a
limited number of sources are impacted by this action. Therefore, I
certify that this action will not have a significant economic impact on
a substantial number of small entities. Furthermore, as explained in
this action, the submission does not meet the requirements of the Clean
Air Act and EPA cannot approve the submission. EPA has no option but to
partially disapprove the submittal. The partial disapproval will not
affect any existing State requirements applicable to the entities.
Federal disapproval of a State submittal does not affect its State
enforceability.

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that

[[Page 32766]]

may result in estimated costs to State, local, or tribal governments in
the aggregate; or to the private sector, of $100 million or more. Under
section 205, EPA must select the most cost-effective and least
burdensome alternative that achieves the objectives of the rule and is
consistent with statutory requirements. Section 203 requires EPA to
establish a plan for informing and advising any small governments that
may be significantly or uniquely impacted by the rule.
EPA has determined that the partial approval and partial
disapproval actions promulgated do not include a Federal mandate that
may result in estimated costs of $100 million or more to either State,
local, or tribal governments in the aggregate, or to the private
sector. This Federal action partially approves and partially
disapproves pre-existing requirements under State or local law, and
imposes no new requirements. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action.

G. Submission to Congress and the Comptroller General

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. Section 804, however, exempts from section 801 the
following types of rules: Rules of particular applicability; rules
relating to agency management or personnel; and rules of agency
organization, procedure, or practice that do not substantially affect
the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA
is not required to submit a rule report regarding this action under
section 801 because this is a rule of particular applicability.

H. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
The EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.

I. Petitions for Judicial Review

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 August 17, 2001. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Lead, Reporting and
recordkeeping requirements.

Dated: May 16, 2001.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.

Part 52, Chapter I, title 40 of the Code of Federal Regulations is
amended as follows:

PART 52--[AMENDED]

1. The authority citation for Part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart BB--Montana

2. Section 52.1370 is amended by adding paragraph (c)(51) to read
as follows:

Sec. 52.1370 Identification of plan.

* * * * *
(c) * * *
(51) The Governor of Montana submitted the East Helena Lead SIP
revisions with letters dated August 16, 1995, July 2, 1996, and October
20, 1998. The revisions address regulating lead emissions from Asarco,
American Chemet, and re-entrained road dust from the streets of East
Helena.
(i) Incorporation by Reference.
(A) Board order issued on August 28, 1998, by the Montana Board of
Environmental Review adopting and incorporating the August 13, 1998
stipulation of the Montana Department of Environmental Quality and
Asarco.
(B) Board order issued on June 26, 1996, by the Montana Board of
Environmental Review adopting and incorporating the June 11, 1996
stipulation of the Montana Department of Environmental Quality and
Asarco including exhibit A and attachments to the stipulation,
excluding paragraphs 15 and 16 of the stipulation, and excluding the
following:
(1) The words, ``or an equivalent procedure'' in the second and
third sentences in section 2(A)(22) of exhibit A;
(2) The words, ``or an equivalent procedure'' in the second and
third sentences in section 2(A)(28) of exhibit A;
(3) The words, ``or an equivalent procedure'' in the second
sentence in section 5(G) of exhibit A;
(4) The sentence, ``Any revised documents are subject to review and
approval by the Department as described in section 12,'' from section
6(E) of exhibit A;
(5) The words, ``or a method approved by the Department in
accordance with the Montana Source Testing Protocol and Procedures
Manual,'' shall be used to measure the volumetric flow rate at each
location identified in section 7(A)(2) of exhibit A;
(6) The sentence, ``Such a revised document shall be subject to
review and approval by the Department as described in section 12,'' in
section 11(C) of exhibit A;
(7) The sentences, ``This revised Attachment shall be subject to
the review and approval procedures outlined in section 12(B). The
Baghouse Maintenance Plan shall be effective only upon full approval of
the plan, as revised. This approval shall be obtained from the
Department by January 6, 1997. This deadline shall be extended to the
extent that the Department has exceeded the time allowed in section
12(B) for its review and approval of the revised document,'' in section
12(A)(7) of exhibit A;
(8) Section 12(B) of exhibit A.
(C) Board order issued on August 4, 1995, by the Montana Board of
Environmental Review adopting and incorporating the June 30, 1995
stipulation of the Montana Department of Environmental Quality and
American Chemet including exhibit A to the stipulation, excluding
paragraph 20 of the stipulation.
(ii) Additional material.
(A) All portions of the August 16, 1995 East Helena Pb SIP
submitted other than the orders, stipulations and exhibit A's and
attachments to the stipulations.
(B) All portions of the July 2, 1996 East Helena Pb SIP submitted
other than

[[Page 32767]]

the orders, stipulations and exhibit A's and attachments to the
stipulations.
(C) All portions of the October 20, 1998 East Helena Pb SIP
submitted other than the orders, stipulations and exhibit A's and
attachments to the stipulations.
(D) November 16, 1999 letter from Art Compton, Division
Administrator, Planning, Prevention and Assistance Division, Montana
Department of Environmental Quality, to Richard R. Long, Director, Air
and Radiation Program, EPA Region VIII.
(E) September 9, 1998 letter from Richard A. Southwick, Point
Source SIP Coordinator, Montana Department of Environmental Quality, to
Richard R. Long, Director, Air and Radiation Program, EPA Region VIII.

[FR Doc. 01-15142 Filed 6-15-01; 8:45 am]
BILLING CODE 6560-50-P

Notices For
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Clean Air Act Approval and Promulgation of Air Quality Implementation Plan; Montana; East Helena Lead State Implementation Plan

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