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Approval and Promulgation of Air Quality Implementation Plans; States of Montana and Wyoming; Revisions to the Administrative Rules of Montana; New Source Performance Standards for Wyoming and Montana
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: November 5, 2003 (Volume 68, Number 214)]
[Rules and Regulations]
[Page 62529-62535]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05no03-12]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 60
[SIP No. MT-001-0047a, WY-001-0010a, WY-001-0011a, WY-001-0012a; FRL-7573-2]
Approval and Promulgation of Air Quality Implementation Plans;
States of Montana and Wyoming; Revisions to the Administrative Rules of
Montana; New Source Performance Standards for Wyoming and Montana
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule and NSPS delegation.
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SUMMARY: EPA is taking direct final action approving State
Implementation Plan (SIP) revisions submitted by the Governor of
Montana on October 28, 2002. The October 28, 2002 submittal revises the
Administrative Rules of Montana (ARM) by updating the Incorporation by
Reference rules, deleting the definition for volatile organic compounds
(VOCs), and making other minor corrections to the rules. The October
28, 2002 submittal also makes revisions to the Yellowstone County Air
Pollution Control Program (YCAPCP). EPA is only approving the revisions
to the section of the YCAPCP that have been approved into the SIP. The
intended effect of this action is to make these revisions federally
enforceable. We are also announcing that on June 24, 2003, we updated
the delegation of authority for the implementation and enforcement of
the New Source Performance Standards (NSPS) to the State of Montana.
On August 9, 2000, August 2, 2001 and June 30, 2003, the State of
Wyoming submitted revisions to the NSPS in the Wyoming Air Quality
Standards and Regulations and requested delegation of the NSPS. We are
announcing that on August 13, 2003, we delegated the authority for the
implementation and enforcement of the NSPS to the State of Wyoming. In
addition, we are updating the ``Delegation Status of New Source
Performance Standards [(NSPS) for Region VIII]'' table to add entries
for newly delegated NSPS subparts for the State of Montana and the
State of Wyoming. These actions are being taken under sections 110 and
111 of the Clean Air Act (CAA).
DATES: This rule is effective on January 5, 2004 without further
notice, unless EPA receives adverse comment by December 5, 2003. If
adverse comment is 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: Written comments may be submitted by mail to Richard R.
Long, Director, Air and Radiation Program, Mailcode 8P-AR,
Environmental Protection Agency (EPA), Region 8, 999 18th Street, Suite
300, Denver, Colorado 80202-2466. Comments may also be submitted
electronically, or through hand delivery/courier. Please follow the
detailed instructions described in sections (I)(B)(1)(i) through (iii)
of the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: Laurel Dygowski, EPA, Region 8, 999
18th Street, Suite 300, Mailcode 8P-AR, Denver, Colorado 80202, (303)
312-6144, e-mail dygowski.laurel@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. How Can I Get Copies Of This Document and Other Related Information?
1. The Regional Office has established an official public
rulemaking file available for inspection at the Regional Office. EPA
has established an official public rulemaking file for this action
under [MT-001-0047, WY-001-0010, WY-001-0011, WY-001-0012]. The
official public file consists of the documents specifically referenced
in this action, any public comments received, and other information
related to this action. Although a part of the official docket, the
public rulemaking file does not include Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. The official public rulemaking file is the collection of
materials that is available for public viewing at the Air and Radiation
Program, EPA Region 8, 999 18th Street, Suite 300, Denver, CO. EPA
requests that if at all possible, you contact the contact listed in the
For Further Information Contact section to schedule your inspection.
You may view the public rulemaking file at the
[[Page 62530]]
Regional Office, Monday through Friday, 8 a.m. to 4 p.m., excluding
Federal holidays. Copies of the Incorporation by Reference material are
also available at the Air and Radiation Docket and Information Center,
U.S. Environmental Protection Agency, Room B-108 (Mail Code 6102T),
1301 Constitution Ave. NW., Washington, DC 20460.
2. Copies of the State submittal are also available for public
inspection during normal business hours, by appointment at the State
Air Agency. 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.
3. Electronic Access. You may access this Federal Register document
electronically through the Regulations.gov Web site located at http://
www.regulations.gov 
where you can find, review, and submit
comments on Federal rules that have been published in the Federal
Register, the Government's legal newspaper, and are open for comment.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing at the EPA Regional Office,
as EPA receives them and without change, unless the comment contains
copyrighted material, CBI, or other information whose disclosure is
restricted by statute. When EPA identifies a comment containing
copyrighted material, EPA will provide a reference to that material in
the version of the comment that is placed in the official public
rulemaking file. The entire printed comment, including the copyrighted
material, will be available at the Regional Office for public
inspection.
B. How and to Whom Do I Submit Comments?
You may submit comments electronically, by mail, or through hand
delivery/courier. To ensure proper receipt by EPA, identify the
appropriate rulemaking identification number by including the text
``Public comment on proposed rulemaking MT-001-0047, WY-001-0010, WY-
001-0011, WY-001-0012'' in the subject line on the first page of your
comment. Please ensure that your comments are submitted within the
specified comment period. Comments received after the close of the
comment period will be marked ``late.'' EPA is not required to consider
these late comments.
1. Electronically. If you submit an electronic comment as
prescribed below, EPA recommends that you include your name, mailing
address, and an e-mail address or other contact information in the body
of your comment. Also include this contact information on the outside
of any disk or CD ROM you submit, and in any cover letter accompanying
the disk or CD ROM. This ensures that you can be identified as the
submitter of the comment and allows EPA to contact you in case EPA
cannot read your comment due to technical difficulties or needs further
information on the substance of your comment. EPA's policy is that EPA
will not edit your comment, and any identifying or contact information
provided in the body of a comment will be included as part of the
comment that is placed in the official public docket. 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.
i. E-mail. Comments may be sent by electronic mail (e-mail). Please
send any comments to long.richard@epa.gov and dygowski.laurel@epa.gov
and include the text ``Public comment on proposed rulemaking MT-001-
0047, WY-001-0010, WY-001-0011, WY-001-0012'' in the subject line.
EPA's e-mail system is not an ``anonymous access'' system. If you send
an e-mail comment directly without going through ``Regulations.gov''
(see below), EPA's e-mail system will automatically capture your e-mail
address. E-mail addresses that are automatically captured by EPA's e-
mail system are included as part of the comment that is placed in the
official public docket.
ii. Regulations.gov. Your use of Regulations.gov is an alternative
method of submitting electronic comments to EPA. Go directly to
Regulations.gov at http://www.regulations.gov, then click on
the button ``TO SEARCH FOR REGULATIONS CLICK HERE'' and select
Environmental Protection Agency as the agency name to search on. The list
of current EPA actions available for comment will be listed. Please
follow the online instructions for submitting comments. The system is
an ``anonymous access'' system, which means EPA will not know your
identity, e-mail address, or other contact information unless you
provide it in the body of your comment.
iii. Disk or CD ROM. You may submit comments on a disk or CD ROM
that you mail to the mailing address identified in Section 2, directly
below. These electronic submissions will be accepted in WordPerfect,
Word or ASCII file format. Avoid the use of special characters and any
form of encryption.
2. By Mail. Send your comments to: Richard R. Long, Director, Air
and Radiation Program, Mailcode 8P-AR, Environmental Protection Agency
(EPA), Region 8, 999 18th Street, Suite 300, Denver, Colorado 80202-
2466. Please include the text ``Public comment on proposed rulemaking
MT-001-0047, WY-001-0010, WY-001-0011, WY-001-0012'' in the subject
line on the first page of your comment.
3. By Hand Delivery or Courier. Deliver your comments to: Richard
R. Long, Director, Air and Radiation Program, Mailcode 8P-AR,
Environmental Protection Agency (EPA), Region 8, 999 18th Street, Suite
300, Denver, Colorado 80202-2466. Such deliveries are only accepted
Monday through Friday, 8 a.m. to 4:55 p.m., excluding federal Holidays.
C. How Should I Submit CBI To the Agency?
Do not submit information that you consider to be CBI
electronically to EPA. You may claim information that you submit to EPA
as CBI by marking any part or all of that information as CBI (if you
submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is CBI). Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2.
In addition to one complete version of the comment that includes
any information claimed as CBI, a copy of the comment that does not
contain the information claimed as CBI must be submitted for inclusion
in the official public regional rulemaking file. If you submit the copy
that does not contain CBI on disk or CD ROM, mark the outside of the
disk or CD ROM clearly that it does not contain CBI. Information not
marked as CBI will be included in the public file and available for
public inspection without prior notice. If you have any questions about
CBI or the procedures for claiming CBI, please consult the person
identified in the For Further Information Contact section.
II. Summary of SIP Revision
A. Montana October 28, 2002 submittal
On October 28, 2002, the Governor of Montana submitted revisions to
its (SIP). The specific revisions to the SIP contained in the October
28, 2002 submittal are explained below.
[[Page 62531]]
1. ARM 17.8.102--Incorporation by Reference
ARM 17.8.102 was revised to update the dates of documents which are
incorporated by reference. These revisions are necessary to allow the
State to include the most recent editions of State rules and federal
regulations. ARM 17.8.102(a) was revised to change the incorporation by
reference of the Code of Federal Regulations (CFR) from the July 1,
2000 to the July 1, 2001 edition. ARM 17.8.102(d) was revised to change
the incorporation by reference of the ARM from the December 31, 2000 to
the December 31, 2001 edition. EPA believes these revisions are minor
and we are approving them into the SIP.
2. ARM 17.8.101, ARM 17.8.801, ARM 17.8.901--Definitions
In ARM 17.8.101(41), 17.8.801(29) and 17.8.901(20), the state
definition for ``volatile organic compounds'' (VOCs) that is equivalent
to the federal definition is deleted and replaced by an incorporation
by reference to the federal regulation of the same definition in 40 CFR
51.100(s). The reason for incorporating by reference the definition for
VOCs is that EPA frequently revises the federal definition, which means
the State must frequently revise its definition to reflect these
changes. By incorporating by reference the federal definition, the
State will not have to change its definition when the EPA revises the
federal definition. EPA believes these revisions are consistent with
the federal definition and we are approving them into the SIP.
3. ARM 17.8.302--Incorporation by Reference
ARM 17.8.302(1)(f) is revised by deleting the reference to a
specific Federal Register notice (66 FR 3179) for new federal pulp mill
emission standards for hazardous air pollutants. The standards have now
been codified in the CFR and the State is incorporating by reference 40
CFR part 63, where the standards were codified. The EPA believes these
revisions are consistent with the federal requirements and we are
approving them into the SIP.
4. ARM 17.8.401--Definitions
Minor changes were made to this section to correct a typographical
error in a reference to another ARM section. Specifically,
17.8.401(1)(b)(v) references (a)(iii) and should reference (1)(a)(iii).
EPA believes that these revisions are minor, consistent with the
federal requirements, and we approving them into the SIP.
5. ARM 17.8.1005--Additional Conditions of Air Quality Pre-Construction
Permits
ARM 17.8.1005(6) has been revised to correct a reference to another
air quality rule. ARM 17.8.1005(6) references ARM 17.8.906(6) through
(8). This reference should be ARM 17.8.906(7) through (9). EPA believes
that these revisions are minor, consistent with the federal
requirements, and we approving them into the SIP.
6. Yellowstone County Air Pollution Control Program
This section of the submittal contains numerous revisions to the
YCAPCP. We are only acting on the minor revision to Regulation No.
002--Open Burning Restrictions, as the other revisions are to sections
of the YCAPCP that have never been approved into the SIP. The revision
to Regulation No. 002--Open Burning Restrictions, corrects a reference
to another air quality rule. Specifically, in part (H)(4)(b)(i), the
reference to ARM 16.14.5 should refer to 17.50.5--Solid Waste
Management. EPA believes that these revisions are minor, consistent
with the federal requirements, and we approving them into the SIP.
7. Announcement of NSPS Delegation
Pursuant to the State's October 28, 2002 submittal, which updated
the effective date of the incorporated NSPS, on June 24, 2003, EPA
updated the delegation of authority for the implementation and
enforcement of the NSPS to the State. Also, we are updating the
``Delegation Status of New Source Performance Standards [(NSPS) for
Region VIII]'' table in 60.4(c) by adding entries for newly delegated
NSPS subparts. The June 24, 2003 letter of delegation to the State
follows:
Honorable Judy Martz,
Governor of Montana, State Capitol, Helena, Montana 59620-0801
Dear Governor Martz: On October 28, 2002, the State submitted a
revision to the Administrative Rules of Montana (ARM) 17.8.102.
Specifically, the State revised its rules to incorporate the July 1,
2001 Code of Federal Regulations. This revision, in effect, updates
the citation of the incorporated Federal New Source Performance
Standards (NSPS) to July 1, 2001.
Subsequent to States adopting NSPS regulations, EPA delegates
the authority for the implementation and enforcement of those NSPS,
so long as the State's regulations are equivalent to the Federal
regulations. EPA reviewed the pertinent statutes and regulations of
the State of Montana and determined that they provide an adequate
and effective procedure for the implementation and enforcement of
the NSPS by the State of Montana. Therefore, pursuant to Section
111(c) of the Clean Air Act (Act), as amended, and 40 CFR part 60,
EPA hereby delegates its authority for the implementation and
enforcement of the NSPS to the State of Montana as follows:
(A) Responsibility for all sources located, or to be located, in
the State of Montana subject to the standards of performance for new
stationary sources promulgated in 40 CFR part 60. The categories of
new stationary sources covered by this delegation are all NSPS
subparts in 40 CFR part 60, as in effect on July 1, 2001. Note this
delegation does not include the emission guidelines in subparts Cb,
Cc, Cd, and Ce. These subparts require state plans which are
approved under a separate process pursuant to Section 111(d) of the
Act.
(B) Not all authorities of NSPS can be delegated to States under
Section 111(c) of the Act, as amended. The EPA Administrator retains
authority to implement those sections of the NSPS that require: (1)
Approving equivalency determinations and alternative test methods,
(2) decision making to ensure national consistency, and (3) EPA
rulemaking to implement. Therefore, of the NSPS of 40 CFR part 60
being delegated in this letter, the enclosure lists examples of
sections in 40 CFR part 60 that cannot be delegated to the State of
Montana.
(C) The DEQ and EPA will continue a system of communication
sufficient to guarantee that each office is always fully informed
and current regarding compliance status of the subject sources and
interpretation of the regulations.
(D) Enforcement of the NSPS in the State will be the primary
responsibility of the DEQ. If the DEQ determines that such
enforcement is not feasible and so notifies EPA, or where the DEQ
acts in a manner inconsistent with the terms of this delegation, EPA
may exercise its concurrent enforcement authority pursuant to
section 113 of the Act, as amended, with respect to sources within
the State of Montana subject to NSPS.
(E) The State of Montana will at no time grant a variance or
waiver from compliance with NSPS regulations. Should DEQ grant such
a variance or waiver, EPA will consider the source receiving such
relief to be in violation of the applicable Federal regulation and
initiate enforcement action against the source pursuant to section
113 of the Act. The granting of such relief by the DEQ shall also
constitute grounds for revocation of delegation by EPA.
(F) If at anytime there is a conflict between a State regulation
and a Federal regulation (40 CFR part 60), the Federal regulation
must be applied if it is more stringent than that of the State. If
the State does not have the authority to enforce the more stringent
Federal regulation, this portion of the delegation may be revoked.
(G) If the Regional Administrator determines that a State
procedure for enforcing or implementing the NSPS is inadequate, or
is not being effectively carried out, this delegation may be revoked
in whole or part. Any such revocation shall be effective as of the
date specified in a Notice of Revocation to the DEQ.
(H) Acceptance of this delegation of presently promulgated NSPS
does not
[[Page 62532]]
commit the State of Montana to accept delegation of future standards
and requirements. A new request for delegation will be required for
any standards not included in the State's request of October 28,
2002.
(I) Upon approval of the Regional Administrator of EPA Region
VIII, the Director of DEQ may subdelegate his authority to implement
and enforce the NSPS to local air pollution control authorities in
the State when such authorities have demonstrated that they have
equivalent or more stringent programs in force.
(J) The State of Montana must require reporting of all excess
emissions from any NSPS source in accordance with 40 CFR 60.7(c).
(K) Performance tests shall be scheduled and conducted in
accordance with the procedures set forth in 40 CFR part 60 unless
alternate methods or procedures are approved by the EPA
Administrator. Although the Administrator retains the exclusive
right to approve equivalent and alternate test methods as specified
in 40 CFR 60.8(b)(2) and (3), the State may approve minor changes in
methodology provided these changes are reported to EPA Region VIII.
The Administrator also retains the right to change the opacity
standard as specified in 40 CFR 60.11(e).
(L) Determinations of applicability such as those specified in
40 CFR 60.5 and 60.6 shall be consistent with those which have
already been made by the EPA.
(M) Alternatives to continuos monitoring procedures or reporting
requirements, as outlined in 40 CFR 60.13(i), may be approved by the
State with the prior concurrence of the Regional Administrator.
(N) If a source proposes to modify its operation or facility
which may cause the source to be subject to NSPS requirements, the
State shall notify EPA Region VIII and obtain a determination on the
applicability of the NSPS regulations.
(O) Information shall be made available to the public in
accordance with 40 CFR 60.9. Any records, reports, or information
provided to, or otherwise obtained by, the State in accordance with
the provisions of these regulations shall be made available to the
designated representatives of EPA upon request.
(P) All reports required pursuant to the delegated NSPS should
not be submitted to the EPA Region VIII office, but rather to the
DEQ.
(Q) As 40 CFR part 60 is updated, Montana should revise its
regulations accordingly and in a timely manner and submit to EPA
requests for updates to its delegation of authority.
EPA is approving Montana's request for NSPS delegation for all
areas within the State except for the following: lands within the
exterior boundaries of the Northern Cheyenne, Rocky Boys, Blackfeet,
Crow, Flathead, Fort Belknap, and Fort Peck Indian Reservations; and
any other areas which are Indian Country within the meaning of 18
U.S.C. 1151.
Since this delegation is effective immediately, there is no need
for the State to notify the EPA of its acceptance. Unless we receive
written notice of objections from you within ten days of the date on
which you receive this letter, the State of Montana will be deemed
to accept all the terms of this delegation. EPA will publish an
information notice in the Federal Register in the near future to
inform the public of this delegation, in which this letter will
appear in its entirety.
If you have any questions on this matter, please contact me or
have your staff contact Richard Long, Director of our Air and
Radiation Program, at (303) 312-6005.
Sincerely yours,
Robert E. Roberts,
Regional Administrator
Enclosures
cc: Jan Sensibaugh, Director, Montana Department of
Environmental Quality, John Wardell, 8MO
Enclosure to Letter Delegating NSPS in 40 CFR Part 60,
Effective Through July 1, 2001, to the State of Montana
Examples of Authorities in 40 CFR Part 60 Which Cannot Be Delegated
------------------------------------------------------------------------
40 CFR Subparts Section(s)
------------------------------------------------------------------------
A................................... 60.8(b)(2) and (b)(3), and those
sections throughout the standards
that reference 60.8(b)(2) and
(b)(3); 60.11(b) and (e).
Da.................................. 60.45a.
Db.................................. 60.44b(f), 60.44b(g) and
60.49b(a)(4).
Dc.................................. 60.48c(a)(4).
Ec.................................. 60.56c(i), 60.8.
J................................... 60.105(a)(13)(iii) and
60.106(i)(12).
Ka.................................. 60.114a.
Kb.................................. 60.111b(f)(4), 60.114b,
60.116b(e)(3)(iii),
60.116b(e)(3)(iv), and
60.116b(f)(2)(iii).
O................................... 60.153(e).
S................................... 60.195(b).
DD.................................. 60.302(d)(3).
GG.................................. 60.332(a)(3) and 60.335(a).
VV.................................. 60.482-1(c)(2) and 60.484.
WW.................................. 60.493(b)(2)(i)(A) and
60.496(a)(1).
XX.................................. 60.502(e)(6).
AAA................................. 60.531, 60.533, 60.534, 60.535,
60.536(i)(2), 60.537, 60.538(e)
and 60.539.
BBB................................. 60.543(c)(2)(ii)(B).
DDD................................. 60.562-2(c).
GGG................................. 60.592(c).
III................................. 60.613(e).
JJJ................................. 60.623.
KKK................................. 60.634.
NNN................................. 60.663(f).
QQQ................................. 60.694.
RRR................................. 60.703(e).
SSS................................. 60.711(a)(16), 60.713(b)(1)(i) and
(ii), 60.713(b)(5)(i), 60.713(d),
60.715(a) and 60.716.
TTT................................. 60.723(b)(1), 60.723(b)(2)(i)(C),
60.723(b)(2)(iv), 60.724(e) and
60.725(b).
VVV................................. 60.743(a)(3)(v)(A) and (B),
60.743(e), 60.745(a) and 60.746.
WWW................................. 60.754(a)(5).
------------------------------------------------------------------------
In the June 24, 2003 letter of delegation to the State of Montana,
we mistakenly did not indicate that two of the NSPS subparts in the
July 2001 version of the CFR could not be delegated to the State.
Subparts BBBB and DDDD contain emission guidelines, which are not
delegated to the state, but require state plans that are approved under
a separate process pursuant to Section 111(d) of the CAA. On September
8, 2003, we notified the State that we mistakenly did not include
Subparts BBBB and DDDD in their letter of delegation as Subparts that
could not be delegated. We will be taking action on the State plans
under Section 111(d) of the CAA at a later time.
B. Wyoming August 9, 2000, August 7, 2001 and June 30, 2003 Submittals
On August 9, 2000, August 7, 2001 and June 30, 2003, the State of
Wyoming submitted revisions to the NSPS in Chapter 5, Section 2 of the
Wyoming Air Quality Standards and Regulations. The revisions update the
incorporation by reference date of the federal NSPS and request
delegation of the authority to implement and enforce the NSPS to the
State. EPA is announcing that on August 13, 2003, we issued a letter
delegating the responsibility for the implementation and enforcement of
the of the NSPS to the State of Wyoming. Also, we are updating the
``Delegation Status of New Source Performance Standards [(NSPS) for
Region VIII]'' table in 60.4(c) by adding entries for newly delegated
NSPS subparts. The August 13, 2003 letter of delegation to the State
follows:
John V. Corra, Director
Department of Environmental Quality, 122 West 25th Street, Cheyenne,
WY 82002
Dear Mr. Corra: On June 30, 2003, the State submitted a revision
to the Wyoming Air Quality Standards and Regulations. Specifically,
the State revised Chapter 5, Section 2, New Source Performance
Standards, to incorporate the July 1, 2001 Code of Federal
Regulations. This revision, in effect, updates the citation of the
incorporated Federal New Source
[[Page 62533]]
Performance Standards (NSPS) to July 1, 2001.
Subsequent to States adopting NSPS regulations, EPA delegates
the authority for the implementation and enforcement of those NSPS,
so long as the States' regulations are equivalent to the Federal
regulations. EPA reviewed the pertinent statutes and regulations of
the State of Wyoming and determined that they provide an adequate
and effective procedure for the implementation and enforcement of
the NSPS by the State of Wyoming. Therefore, pursuant to Section
111(c) of the Clean Air Act (Act), as amended, and 40 CFR part 60,
EPA hereby delegates its authority for the implementation and
enforcement of the NSPS to the State of Wyoming as follows:
(A) Responsibility for all sources located, or to be located, in
the State of Wyoming subject to the standards of performance for new
stationary sources promulgated in 40 CFR part 60. The categories of
new stationary sources covered by this delegation are all NSPS
subparts in 40 CFR part 60, as in effect on July 1, 2001, except
subparts BBBB and DDDD. Note this delegation does not include the
emission guidelines in subparts Cb, Cc, Cd, and Ce. These subparts
require state plans which are approved under a separate process
pursuant to Section 111(d) of the Act.
(B) Not all authorities of NSPS can be delegated to States under
Section 111(c) of the Act, as amended. The EPA Administrator retains
authority to implement those sections of the NSPS that require: (1)
Approving equivalency determinations and alternative test methods,
(2) decision making to ensure national consistency, and (3) EPA
rulemaking to implement. Therefore, of the NSPS of 40 CFR part 60
being delegated in this letter, the enclosure lists examples of
sections in 40 CFR part 60 that cannot be delegated to the State of
Wyoming.
(C) The DEQ and EPA will continue a system of communication
sufficient to guarantee that each office is always fully informed
and current regarding compliance status of the subject sources and
interpretation of the regulations.
(D) Enforcement of the NSPS in the State will be the primary
responsibility of the DEQ. If the DEQ determines that such
enforcement is not feasible and so notifies EPA, or where the DEQ
acts in a manner inconsistent with the terms of this delegation, EPA
may exercise its concurrent enforcement authority pursuant to
section 113 of the Act, as amended, with respect to sources within
the State of Wyoming subject to NSPS.
(E) The State of Wyoming will at no time grant a variance or
waiver from compliance with NSPS regulations. Should DEQ grant such
a variance or waiver, EPA will consider the source receiving such
relief to be in violation of the applicable Federal regulation and
initiate enforcement action against the source pursuant to section
113 of the Act. The granting of such relief by the DEQ shall also
constitute grounds for revocation of delegation by EPA.
(F) If at any time there is a conflict between a State
regulation and a Federal regulation (40 CFR part 60), the Federal
regulation must be applied if it is more stringent than that of the
State. If the State does not have the authority to enforce the more
stringent Federal regulation, this portion of the delegation may be
revoked.
(G) If the Regional Administrator determines that a State
procedure for enforcing or implementing the NSPS is inadequate, or
is not being effectively carried out, this delegation may be revoked
in whole or part. Any such revocation shall be effective as of the
date specified in a Notice of Revocation to the DEQ.
(H) Acceptance of this delegation of presently promulgated NSPS
does not commit the State of Wyoming to accept delegation of future
standards and requirements. A new request for delegation will be
required for any standards not included in the State's request of
June 30, 2003.
(I) Upon approval of the Regional Administrator of EPA Region 8,
the Director of DEQ may subdelegate his authority to implement and
enforce the NSPS to local air pollution control authorities in the
State when such authorities have demonstrated that they have
equivalent or more stringent programs in force.
(J) The State of Wyoming must require reporting of all excess
emissions from any NSPS source in accordance with 40 CFR 60.7(c).
(K) Performance tests shall be scheduled and conducted in
accordance with the procedures set forth in 40 CFR part 60 unless
alternate methods or procedures are approved by the EPA
Administrator. Although the Administrator retains the exclusive
right to approve equivalent and alternate test methods as specified
in 40 CFR 60.8(b)(2) and (3), the State may approve minor changes in
methodology provided these changes are reported to EPA Region 8. The
Administrator also retains the right to change the opacity standard
as specified in 40 CFR 60.11(e).
(L) Determinations of applicability such as those specified in
40 CFR 60.5 and 60.6 shall be consistent with those which have
already been made by the EPA.
(M) Alternatives to continuous monitoring procedures or
reporting requirements, as outlined in 40 CFR 60.13(i), may be
approved by the State with the prior concurrence of the Regional
Administrator.
(N) If a source proposes to modify its operation or facility
which may cause the source to be subject to NSPS requirements, the
State shall notify EPA Region 8 and obtain a determination on the
applicability of the NSPS regulations.
(O) Information shall be made available to the public in
accordance with 40 CFR 60.9. Any records, reports, or information
provided to, or otherwise obtained by, the State in accordance with
the provisions of these regulations shall be made available to the
designated representatives of EPA upon request.
(P) All reports required pursuant to the delegated NSPS should
not be submitted to the EPA Region 8 office, but rather to the DEQ.
(Q) As 40 CFR part 60 is updated, Wyoming should revise its
regulations accordingly and in a timely manner and submit to EPA
requests for updates to its delegation of authority.
EPA is approving Wyoming's request for NSPS delegation for all
areas within the State except for the following: Lands within the
exterior boundaries of the Wind River Indian Reservation; and any
other areas which are ``Indian Country'' within the meaning of 18
U.S.C. 1151.
Since this delegation is effective immediately, there is no need
for the State to notify the EPA of its acceptance. Unless we receive
written notice of objections from you within ten days of the date on
which you receive this letter, the State of Wyoming will be deemed
to accept all the terms of this delegation. EPA will publish an
information notice in the Federal Register in the near future to
inform the public of this delegation, in which this letter will
appear in its entirety.
If you have any questions on this matter, please contact me or
have your staff contact Richard Long, Director of our Air and
Radiation Program, at (303) 312-6005, or toll-free at 1-800-227-
8917.
Sincerely,
Robert E. Roberts,
Regional Administrator
Enclosures
cc: Dan Olson, Administrator, Air Quality Division
Enclosure to Letter Delegating NSPS in 40 CFR Part 60,
Effective Through July 1, 2001, to the State of Wyoming
Examples of Authorities in 40 CFR Part 60 Which Cannot Be Delegated
------------------------------------------------------------------------
40 CFR subparts Section(s)
------------------------------------------------------------------------
A................................... 60.8(b)(2) and (b)(3), and those
sections throughout the standards
that reference 60.8(b)(2) and
(b)(3); 60.11(b) and (e).
Da.................................. 60.45a.
Db.................................. 60.44b(f), 60.44b(g) and
60.49b(a)(4).
Dc.................................. 60.48c(a)(4).
Ec.................................. 60.56c(i), 60.8
J................................... 60.105(a)(13)(iii) and
60.106(i)(12).
Ka.................................. 60.114a.
Kb.................................. 60.111b(f)(4), 60.114b,
60.116b(e)(3)(iii),
60.116b(e)(3)(iv), and
60.116b(f)(2)(iii).
O................................... 60.153(e).
S................................... 60.195(b).
DD.................................. 60.302(d)(3).
GG.................................. 60.332(a)(3) and 60.335(a).
VV.................................. 60.482-1(c)(2) and 60.484.
WW.................................. 60.493(b)(2)(i)(A) and
60.496(a)(1).
XX.................................. 60.502(e)(6).
AAA................................. 60.531, 60.533, 60.534, 60.535,
60.536(i)(2), 60.537, 60.538(e)
and 60.539.
BBB................................. 60.543(c)(2)(ii)(B).
DDD................................. 60.562-2(c).
GGG................................. 60.592(c).
III................................. 60.613(e).
[[Page 62534]]
JJJ................................. 60.623.
KKK................................. 60.634.
NNN................................. 60.663(f).
QQQ................................. 60.694.
RRR................................. 60.703(e).
SSS................................. 60.711(a)(16), 60.713(b)(1)(i) and
(ii), 60.713(b)(5)(i), 60.713(d),
60.715(a) and 60.716.
TTT................................. 60.723(b)(1), 60.723(b)(2)(i)(C),
60.723(b)(2)(iv), 60.724(e) and
60.725(b).
VVV................................. 60.743(a)(3)(v)(A) and (B),
60.743(e), 60.745(a) and 60.746.
WWW................................. 60.754(a)(5).
------------------------------------------------------------------------
III. Final Action
EPA is approving the following revisions to the Montana SIP
submitted on October 28, 2002: Revisions to ARM 17.8.101, 102, 302,
401, 801, 901 and 1005. EPA is also approving the revisions to the
YCAPCP, Regulation No. 002--Open Burning Restrictions. We are
announcing that on June 24, 2003 and on August 13, 2003, we updated the
delegation of authority for the implementation and enforcement of the
NSPS to the State of Montana and the State of Wyoming, respectively. We
are also updating the ``Delegation Status of New Source Performance
Standards [(NSPS) for Region VIII]'' table in 60.4(c) by adding entries
for newly delegated NSPS subparts.
Section 110(l) of the Clean Air Act states that a SIP revision
cannot be approved if the revision would interfere with any applicable
requirement concerning attainment and reasonable further progress
towards attainment of the NAAQS or any other applicable requirements of
the Act. The Montana SIP revisions and the Montana and Wyoming NSPS
delegations that are the subject of this document do not interfere with
the maintenance of the NAAQS or any other applicable requirement of the
Act because of the following: (1) The update to the incorporation by
reference, as well as amending the definition of VOCs, allows the State
of Montana to include the most recent version of federal regulations;
and (2) the NSPS delegations for Montana and Wyoming meet the
requirements of section 111(c) of the CAA and 40 CFR part 60.
Therefore, section 110(l) requirements are satisfied.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in the ``Proposed Rules'' section of today's
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the SIP revision if adverse
comments be filed. This rule will be effective January 5, 2004 without
further notice unless the Agency receives adverse comments by December
5, 2003. If the EPA receives adverse comments, EPA will publish a
timely withdrawal in the Federal Register informing the public that the
rule will not take effect. EPA will address all public comments in a
subsequent final rule based on the proposed rule. The EPA will not
institute a second comment period on this action. Any parties
interested in commenting must 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.
IV. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
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 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this 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.). Because
this rule approves 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 (Pub. L. 104-4).
This rule also does not have tribal implications because it will
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). This action also does not have Federalism
implications because it does 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
(64 FR 43255, August 10, 1999). This action 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. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.
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. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. section 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
rule 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.
section 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of
[[Page 62535]]
this action must be filed in the United States Court of Appeals for the
appropriate circuit by January 5, 2004. 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
40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
40 CFR Part 60
Air pollution control, Aluminum, Ammonium sulfate plants,
Beverages, Carbon monoxide, Cement industry, Coal, Copper, Dry
cleaners, Electric power plants, Fertilizers, Fluoride, Gasoline, Glass
and glass products, Grains, Graphic arts industry, Household
appliances, Insulation, Intergovernmental relations, Iron, Lead, Lime,
Metallic and nonmetallic mineral processing plants, Metals, Motor
vehicles, Natural gas, Nitric acid plants, Nitrogen dioxide, Paper and
paper products industry, Particulate matter, Paving and roofing
materials, Petroleum, Phosphate, Plastics materials and synthetics,
Reporting and recordkeeping requirements, Sewage disposal, Steel,
Sulfur oxides, Tires, Urethane, Vinyl, Waste treatment and disposal,
Wool, Zinc.
Dated: October 1, 2003.
Robert E. Roberts,
Regional Administrator, Region 8.
? 40 CFR parts 52 and 60 are 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)(59) to read as
follows:
Sec. 52.1370 Identification of plan.
* * * * *
(c) * * *
(59) On October 28, 2002, the Governor of Montana submitted
revisions to the Administrative Rules of Montana (ARM). The State
revised its Incorporation by Reference rules (ARM 17.8.102, 17.8.302)
and revised the definition of volatile organic compounds to incorporate
by reference the federal regulation (ARM 17.8.101, 17.8.801, 17.8.901).
Additional minor changes were made to ARM 17.8.401, 17.8.1005 and the
Yellowstone County Air Pollution Control Program Regulation No. 002.
(i) Incorporation by reference.
(A) Administrative Rules of Montana (ARM) sections 17.8.101(41),
17.8.102(a) and (d), 17.8.302(1)(f), 17.8.401(1)(b)(v), 17.8.801(29),
17.8.901(20) and 17.8.1005(6), effective 6/28/02.
(B) Yellowstone County Air Pollution Control Program, Regulation
No. 002, (H)(4)(b)(i), effective June 7, 2002.
PART 60--[AMENDED]
? 1. The authority citation for part 60 continues to read as follows:
Authority: 42 U.S.C. 7401, 7411, 7414, 7416, and 7601 as amended
by the Clean Air Act Amendments of 1990, Pub. L. 101-549, 104 Stat.
2399 (November 15, 1990; 402, 409, 415 of the Clean Air Act as
amended, 104 Stat. 2399, unless otherwise noted).
Subpart A--General Provisions
? 2. Section 60.4 (c) is amended by adding entries for subparts ``AAAA''
and ``CCCC'' in the table entitled ``Delegation Status of New Source
Performance Standards [(NSPS) for Region VIII]'' to read as follows:
Sec. 60.4 Address.
* * * * *
(c) * * *
Delegation Status of New Source Performance Standards [(NSPS)
for Region VIII]
------------------------------------------------------------------------
Subpart CO MT ND SD UT WY
------------------------------------------------------------------------
* * * * * * *
AAAA--Small Municipal Waste ...... (*) ..... ..... ..... (*)
Combustors.
CCCC--Commercial and ...... (*) ..... ..... ..... (*)
Industrial Solid Waste
Incineration Units.
------------------------------------------------------------------------
* Indicates approval of the state regulation.
[FR Doc. 03-27265 Filed 11-4-03; 8:45 am]
BILLING CODE 6560-50-P