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Clean Air Act Final Interim Approval of Operating Permits Program; State of Montana
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: May 11, 1995]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[MT-001; FRL-5206-2]
Clean Air Act Final Interim Approval of Operating Permits
Program; State of Montana
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final interim approval.
SUMMARY: The EPA is promulgating final interim approval of the
Operating Permits Program submitted by the State of Montana for the
purpose of complying with Federal requirements for an approvable State
Program to issue operating permits to all major stationary sources, and
to certain other sources.
EFFECTIVE DATE: June 12, 1995.
ADDRESSES: Copies of the State's submittal and other supporting
information used in developing the final interim approval are available
for inspection during normal business hours at the following location:
U.S. Environmental Protection Agency, Region 8, 999 18th Street, suite
500, Denver, Colorado 80202.
FOR FURTHER INFORMATION CONTACT: Laura Farris, 8ART-AP, U.S.
Environmental Protection Agency, Region 8, 999 18th Street, suite 500,
Denver, Colorado 80202, (303) 294-7539.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
Title V of the 1990 Clean Air Act Amendments (sections 501-507 of
the Clean Air Act (``the Act'')), and implementing regulations at 40
Code of Federal Regulations (CFR) part 70 (part 70) require that States
develop and submit operating permits programs to EPA by November 15,
1993, and that EPA act to approve or disapprove each program within one
year after receiving the submittal. The EPA's program review occurs
pursuant to section 502 of the Act and the part 70 regulations, which
together outline criteria for approval or disapproval. Where a program
substantially, but not fully, meets the requirements of part 70, EPA
may grant the program interim approval for a period of up to two years.
If EPA has not fully approved a program by two years after the November
15, 1993 date, or by the end of an interim program, it must establish
and implement a Federal program.
On February 14, 1995 EPA published a Federal Register notice
proposing interim approval of the Operating Permits Program for the
State of Montana (PROGRAM). See 60 FR 8335. EPA received no adverse
comments on this proposed interim approval, and is taking final action
to promulgate interim approval of the Montana PROGRAM.
II. Final Action and Implications
A. Analysis of State Submission
The Governor of Montana submitted an administratively complete
title V Operating Permit Program (PROGRAM) for the State of Montana on
March 29, 1994. The Montana PROGRAM, including the operating permit
[[Page 25144]] regulations (Sub-Chapter 20, sections 16.8.2001 through
16.8.2025, inclusive, of the Administrative Rules of Montana),
substantially meets the requirements of 40 CFR 70.2 and 70.3 with
respect to applicability; 70.4, 70.5, and 70.6 with respect to permit
content including operational flexibility; 70.5 with respect to
complete application forms and criteria which define insignificant
activities; 70.7 with respect to public participation and minor permit
modifications; and 70.11 with respect to requirements for enforcement
authority.
EPA's comments noting deficiencies in the Montana PROGRAM were sent
to the State in a letter dated October 3, 1994. The deficiencies were
segregated into those that require corrective action prior to interim
PROGRAM approval, and those that require corrective action prior to
full PROGRAM approval. The State committed to address the PROGRAM
deficiencies that require corrective action prior to interim PROGRAM
approval in a letter dated October 20, 1994. The State submitted these
corrective actions in letters dated March 30 and April 5, 1995. EPA has
reviewed these corrective actions and has determined them to be
adequate to allow for interim PROGRAM approval.
B. Final Action
The EPA is promulgating interim approval of the Operating Permits
Program submitted by the State of Montana on March 29, 1994. The State
must complete the following corrective actions to receive full PROGRAM
approval: (1) Section 16.8.2002(1)(d) of Sub-Chapter 20 is part of the
definition of administrative permit amendment and allows for the
department's discretion in determining whether or not a change in
monitoring or reporting requirements would be as stringent as current
monitoring or reporting requirements. This does not meet the criteria
of an administrative permit amendment listed 40 CFR 70.7(d)(1)(iii),
which requires that only more frequent monitoring or reporting
requirements can be processed through an administrative permit
amendment. Prior to full PROGRAM approval, the State must delete
section 16.8.2002(1)(d) of Sub-Chapter 20, which allows for the
department's discretion in determining whether or not a change in
monitoring or reporting requirements would be as stringent as current
monitoring or reporting requirements. (2) Section 16.8.2002(1)(f) of
Sub-Chapter 20 is part of the definition of administrative permit
amendment and allows the State to determine if other types of permit
changes not listed in the definition of administrative permit amendment
can be incorporated into a permit through the administrative permit
amendment process. This does not meet requirements of 40 CFR
70.7(d)(1)(vi). This provision must be changed prior to full PROGRAM
approval to allow the Administrator of EPA (or EPA and the State) to
determine if changes not included in the definition of administrative
permit amendment can be processed through the administrative permit
amendment process. (3) The definition of ``insignificant emissions
unit'' in section 16.8.2002(22)(a) of Sub-Chapter 20 includes an
emission threshold of 15 tons per year of any pollutant other than a
hazardous air pollutant. EPA does not consider this to be a reasonable
level from which to exempt emissions units from title V operating
permit requirements. Prior to full PROGRAM approval, the State must
lower the emissions cap for defining ``insignificant emissions units''
to assure they will not encompass activities that trigger applicable
requirements. If the State defines insignificant activity levels
greater than those suggested, a demonstration must be made to show why
such levels are, in fact, insignificant. (4) Section
16.8.2002(24)(a)(ii) of Sub-chapter 20 defines ``non-Federally
enforceable requirement'' to include any term contained in a
preconstruction permit issued under Sub-Chapters 9, 11, 17, or 18 that
is not Federally enforceable. However, everything contained in a
preconstruction permit issued under these Sub-Chapters (which currently
are, or soon will be, included in the State's SIP) is considered to be
Federally enforceable. Prior to full PROGRAM approval this language
must be revised or deleted. (5) Section 16.8.2008 of Sub-Chapter 20
that lists the permit content requirements does not require a
severability clause consistent with Sec. 70.6(a)(5) of the Federal
permitting regulation. Prior to full PROGRAM approval, the State must
include a severability clause in Sub-Chapter 20 consistent with
Sec. 70.6(a)(5) of the Federal permitting regulation. (6) Section
IX.C.2 of the checklist that was part of the PROGRAM submittal
regarding the implementation of the enhanced monitoring requirements of
section 114(a)(3) of the Act states that there are no impediments to
using any monitoring data to determine compliance and for direct
enforcement. However, the State has incorporated by reference the
Federal new source performance standards (NSPS) and national emissions
standards for HAPs (NESHAPs) in 40 CFR parts 60 and 61 into its SIPapproved
regulations, which provide that compliance can be determined
only by performance tests (see 40 CFR 60.11(a) and 40 CFR 61.12(a)).
Prior to full PROGRAM approval, the State must provide an Attorney
General's opinion verifying the State's authority to use any monitoring
data to determine compliance and for direct enforcement. If the State
does not have such authority, then the State's SIP-approved regulations
must be revised prior to full PROGRAM approval to provide authority to
use any monitoring data to determine compliance and for direct
enforcement. (7) The Attorney General's Opinion regarding the State's
authority to terminate permits is unclear. MCA 75-2-211(1) and 217(1)
refer to ``issuance, modification, suspension, revocation, and
renewal'' of permits, but not ``termination.'' Prior to full PROGRAM
approval, the State must provide an Attorney General's interpretation
that Montana's statutory authority extends to ``terminating'' permits.
(8) The PROGRAM submittal contained a letter to Douglas M. Skie dated
February 28, 1994 certifying the State's authority to implement section
112 of the Act. The letter discusses the State's authority to require
permit applications from sources subject to section 112(j) of the Act,
but does not address the State's ability to make case-by-case MACT
determinations. Prior to full PROGRAM approval, the State must certify
its ability to make case-by-case MACT determinations pursuant to
section 112(j) of the Act. (9) The State's February 28, 1994 letter to
EPA also discusses the State's authority to implement section 112(r) of
the Act, but does not address the State's ability to require annual
certifications from part 70 sources as to whether their risk management
plans (RMPs) are being properly implemented, or provide a compliance
schedule for sources that fail to submit the required RMP. Prior to
full PROGRAM approval, the State must certify its ability to require
annual certifications from part 70 sources regarding proper
implementation of their RMPs and to provide a compliance schedule for
sources that fail to submit the required RMP. (10) Section
16.8.2008(2)(a) allows the State to terminate, or revoke and reissue,
permits for continuing and substantial violations. This language may be
too limiting and may not provide full authority needed to be consistent
with section 502(b)(5)(D) of the Act, which requires that state permit
programs have authority to ``terminate, modify, revoke and reissue
permits for cause.'' The [[Page 25145]] State addressed this issue in
its March 30, 1995 letter; however, EPA was unable to determine whether
Montana's PROGRAM is consistent in all respects with section
502(b)(5)(D) of the Act. Prior to full PROGRAM approval, the State must
either (a) clarify that it has authority to terminate or revoke and
reissue permits in all circumstances in which cause to do so exists or
(b) amend section 16.8.2008(2)(a) to eliminate any provisions that may
be construed to limit ``cause'' in an unacceptable manner.
Refer to the technical support document accompanying this
rulemaking for a detailed explanation of these PROGRAM deficiencies and
the required corrective actions.
The scope of Montana's final interim PROGRAM approval does not
extend to ``Indian Country,'' as defined in 18 U.S.C. 1151, including
the following ``existing or former'' Indian reservations in the State:
Northern Cheyenne, Rocky Boys, Blackfeet, Crow, Flathead, Fort Belknap,
and Fort Peck Indian Reservations. Before EPA would approve the State's
PROGRAM for any portion of ``Indian Country,'' EPA would have to be
satisfied that the State has authority, either pursuant to explicit
Congressional authorization or applicable principles of Federal Indian
law, to enforce its laws against existing and potential pollution
sources within any geographical area for which it seeks program
approval and that such approval would constitute sound administrative
practice. This is a complex and controversial issue, and EPA does not
wish to delay interim approval of the State's PROGRAM with respect to
undisputed sources while EPA resolves this question.
In deferring final action on PROGRAM approval for sources located
in ``Indian Country,'' EPA is not making a determination that the State
either has adequate jurisdiction or lacks such jurisdiction. Instead,
EPA is deferring judgment regarding this issue pending EPA's evaluation
of the State's analysis.
This interim PROGRAM approval, which may not be renewed, extends
until June 11, 1997. During this interim approval period, the State of
Montana is protected from sanctions, and EPA is not obligated to
promulgate, administer and enforce a Federal operating permits program
in the state of Montana. Permits issued under a program with interim
approval have full standing with respect to part 70, and the one year
time period for submittal of permit applications by subject sources
begins upon the effective date of this interim approval, as does the
three year time period for processing the initial permit applications.
If the State of Montana fails to submit a complete corrective
PROGRAM for full approval by December 11, 1996, EPA will start an 18-
month clock for mandatory sanctions. If the State of Montana then fails
to submit a corrective PROGRAM that EPA finds complete before the
expiration of that 18-month period, EPA will be required to apply one
of the sanctions in section 179(b) of the Act, which will remain in
effect until EPA determines that the State of Montana has corrected the
deficiency by submitting a complete corrective PROGRAM. Moreover, if
the Administrator finds a lack of good faith on the part of the State
of Montana, both sanctions under section 179(b) will apply after the
expiration of the 18-month period until the Administrator determines
that the State of Montana has come into compliance. In any case, if,
six months after application of the first sanction, the State of
Montana still has not submitted a corrective PROGRAM that EPA has found
complete, a second sanction will be required.
If EPA disapproves the State of Montana's complete corrective
PROGRAM, EPA will be required to apply one of the section 179(b)
sanctions on the date 18 months after the effective date of the
disapproval, unless prior to that date the State of Montana has
submitted a revised PROGRAM and EPA has determined that it corrected
the deficiencies that prompted the disapproval. Moreover, if the
Administrator finds a lack of good faith on the part of the State of
Montana, both sanctions under section 179(b) shall apply after the
expiration of the 18-month period until the Administrator determines
that the State of Montana has come into compliance. In all cases, if,
six months after EPA applies the first sanction, the State of Montana
has not submitted a revised PROGRAM that EPA has determined corrects
the deficiencies, a second sanction is required.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if the
State of Montana has not timely submitted a complete corrective PROGRAM
or EPA has disapproved its submitted corrective PROGRAM. Moreover, if
EPA has not granted full approval to the Montana PROGRAM by the
expiration of this interim approval and that expiration occurs after
November 15, 1995, EPA must promulgate, administer and enforce a
Federal permits program for the State of Montana upon interim approval
expiration.
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5) requirements for approval of a program for delegation
of section 112 standards as promulgated by EPA as they apply to part 70
sources. Section 112(l)(5) requires that the State's program contain
adequate authorities, adequate resources for implementation, and an
expeditious compliance schedule, which are also requirements under part
70. Therefore, the EPA is promulgating approval under section 112(l)(5)
and 40 CFR 63.91 of the State's PROGRAM for receiving delegation of
section 112 standards that are unchanged from Federal standards as
promulgated. This program for delegations applies to sources covered by
the part 70 program, as well as non-part 70 sources.
EPA is also finalizing its approval of Montana's preconstruction
permit program found in Sub-Chapter 11, sections 16.8.1101 through
16.8.1120, of the State's regulations under the authority of title V
and part 70 solely for the purpose of providing a mechanism to
implement section 112(g) during any transition period between EPA's
promulgation of a section 112(g) rule and adoption by the State of
rules to implement section 112(g). However, since this approval is for
the single purpose of providing a mechanism to implement section 112(g)
during any transition period, the approval itself will be without
effect if EPA decides in the final section 112(g) rule that sources are
not subject to the requirements of the rule until State regulations are
adopted. The EPA is limiting the duration of this approval to 12 months
following promulgation by EPA of the final section 112(g) rule.
III. Administrative Requirements
A. Docket
Copies of the State's submittal and other information relied upon
for the final interim approval, including public comments received and
reviewed by EPA on the proposal, are maintained in a docket at the EPA
Regional Office. The docket is an organized and complete file of all
the information submitted to, or otherwise considered by, EPA in the
development of this final interim approval. The docket is available for
public inspection at the location listed under the ADDRESSES section of
this document. [[Page 25146]]
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
The EPA's actions under section 502 of the Act do not create any
new requirements, but simply address operating permits programs
submitted to satisfy the requirements of 40 CFR part 70. Because this
action does not impose any new requirements, it does not have a
significant impact on a substantial number of small entities.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Dated: May 2, 1995.
Jack McGraw,
Acting Regional Administrator.
Part 70, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 70--[AMENDED]
The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Appendix A to part 70 is amended by adding the entry for Montana
in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * *
Montana
(a) Montana Department of Health and Environmental Sciences--Air
Quality Division: submitted on March 29, 1994; effective on June 12,
1995; interim approval expires June 11, 1997.
(b) [Reserved]
[FR Doc. 95-11677 Filed 5-10-95; 8:45 am]
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