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Approval and Disapproval and Promulgation of Air Quality Implementation Plans; Montana; Revisions to the Administrative Rules of Montana; New Source Performance Standards for Montana
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: July 20, 2004 (Volume 69, Number 138)]
[Proposed Rules]
[Page 43371-43378]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20jy04-22]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 60
[SIP NO. R08-OAR-2004-MT-0001; FRL-7790-1]
Approval and Disapproval and Promulgation of Air Quality
Implementation Plans; Montana; Revisions to the Administrative Rules of
Montana; New Source Performance Standards for Montana
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule and NSPS delegation.
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SUMMARY: EPA is proposing to partially approve and partially disapprove
State Implementation Plan (SIP) revisions submitted by the State of
Montana on April 18, 2003 and August 20, 2003. The revisions modify the
open burning rules, definitions and references to Federal regulations
and other materials in the Administrative Rules of Montana. The
intended effect of this action is to make federally enforceable those
provisions that EPA is proposing to approve and to disapprove those
provisions that are not approvable. We are also announcing that on
January 9, 2004, we updated the delegation of authority for the
implementation of the New Source Performance Standards (NSPS) to the
State of Montana. This action is being taken under sections 110 and 111
of the Clean Air Act.
DATES: Comments must be received on or before August 19, 2004.
ADDRESSES: Submit your comments, identified by Docket ID No. R08-OAR-
2004-MT-0001, by one of the following methods:
? Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
? Agency Web site: http://docket.epa.gov/rmepub/index.jsp.
Regional Materials in EDOCKET (RME), EPA's electronic public docket and
comment system for regional actions, is EPA's preferred method for
receiving comments. Follow the on-line instructions for submitting
comments.
? E-mail: long.richard@epa.gov and ostrand.laurie@epa.gov.
? Fax: (303) 312-6064 (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
? Mail: Richard R. Long, Director, Air and Radiation
Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-
AR, 999 18th Street, Suite 300, Denver, Colorado 80202-2466.
[[Page 43372]]
? Hand Delivery: Richard R. Long, Director, Air and
Radiation Program, Environmental Protection Agency (EPA), Region 8,
Mailcode 8P-AR, 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. Special arrangements should
be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. R08-OAR-2004-
MT-0001. EPA's policy is that all comments received will be included in
the public docket without change and may be made available at
http://docket.epa.gov/rmepub/index.jsp, including any personal
information provided, unless the comment includes information claimed
to be Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through EDOCKET,
regulations.gov, or e-mail. The EPA's Regional Materials in EDOCKET and
Federal regulations.gov Web site are ``anonymous access'' systems,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA, without going through EDOCKET or
regulations.gov, your e-mail address will be automatically captured and
included as part of the comment that is placed in the public docket and
made available on the Internet. If you submit an electronic comment,
EPA recommends that you include your name and other contact information
in the body of your comment and with any disk or CD-ROM you submit. If
EPA cannot read your comment due to technical difficulties and cannot
contact you for clarification, EPA may not be able to consider your
comment. Electronic files should avoid the use of special characters,
any form of encryption, and be free of any defects or viruses. For
additional information about EPA's public docket visit EDOCKET online
or see the Federal Register of May 31, 2002 (67 FR 38102). For
additional instructions on submitting comments, go to Section I.
General Information of the SUPPLEMENTARY INFORMATION section of this
document.
Docket: All documents in the docket are listed in the Regional
Materials in EDOCKET index at http://docket.epa.gov/rmepub/index.jsp.
Although listed in the index, some information is not publicly
available, i.e., CBI or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically in Regional Materials in EDOCKET or in
hard copy at the Air and Radiation Program, Environmental Protection
Agency (EPA), Region 8, 999 18th Street, Suite 300, Denver, Colorado
80202-2466. EPA requests that if at all possible, you contact the
individual listed in the FOR FURTHER INFORMATION CONTACT section to
view the hard copy of the docket. You may view the hard copy of the
docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Laurie Ostrand, Air and Radiation
Program, Mailcode 8P-AR, Environmental Protection Agency (EPA), Region
8, 999 18th Street, Suite 300, Denver, Colorado 80202-2466, (303) 312-
6437, ostrand.laurie@EPA.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. General Information
II. Background
III. EPA's Review of the State of Montana's April 18, 2003 and
August 20, 2003 Submittals
IV. Announcement of NSPS Delegation
V. Proposed Action
VI. Statutory and Executive Order Reviews
Definitions
For the purpose of this document, we are giving meaning to certain
words or initials 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 SIP mean or refer to State Implementation Plan.
(iv) The words State or Montana mean the State of Montana, unless
the context indicates otherwise.
I. General Information
A. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
Regional Materials in EDOCKET, regulations.gov or e-mail. Clearly mark
the part or all of the information that you claim to be CBI. For CBI
information in a disk or CD ROM that you mail to EPA, 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 claimed as CBI. In
addition to one complete version of the comment that includes
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
public docket. Information so marked will not be disclosed except in
accordance with procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
a. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
b. Follow directions--The agency may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
c. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
d. Describe any assumptions and provide any technical information
and/or data that you used.
e. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
f. Provide specific examples to illustrate your concerns, and
suggest alternatives.
g. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
h. Make sure to submit your comments by the comment period deadline
identified.
II. Background
A. April 18, 2003 Submittal
On April 18, 2003, the Governor submitted a SIP revision that
contains amendments to open burning rules at the Administrative Rules
of Montana (ARM) 17.8.601, 17.8.604, 17.8.605, 17.8.606, 17.8.610,
17.8.612 and 17.8.614 and an amendment to the incorporation by
reference at 17.8.302(f). The amendments allow certain minor open
burning to occur in the winter that had previously been prohibited;
change the timeframe a landfill burn permit is valid from 30 days to
one year and add the requirement that the department or its designated
representative inspect burn piles at licensed landfills prior to every
burn to ensure that no prohibited materials are in the piles; allow the
open burning of the detonation of unexploded ordnance; clarify the
materials prohibited from open burning; revise the conditional open
burning permit requirements and make minor editorial and grammatical
changes. The
[[Page 43373]]
submittal also contains amendments to ARM 17.8.302(f)--Incorporation by
Reference. The Montana Board of Environmental Review (Board) adopted
the amendments on December 6, 2002.
B. August 20, 2003 Submittal
On August 20, 2003, the Governor submitted a SIP revision that
contains amendments to definitions and incorporation by reference of
current Federal regulations and other material into air quality rules
at ARM 17.8.101, 17.8.102, 17.8.103, 17.8.106, 17.8.110, 17.8.302,
17.8.401, 17.8.402, 17.8.801, 17.8.802, 17.8.818, 17.8.819, 17.8.821,
17.8.901, 17.8.902, 17.8.905, 17.8.1002. The amendments update Federal
citations, make clerical amendments, and eliminate the duplication of
statutory language in definitions by citing to the definitions in the
statute. The Board adopted the amendments on March 28, 2003.
III. EPA's Review of the State of Montana's April 18, 2003 and August
20, 2003 Submittals
A. April 18, 2003 Submittal
1. Changes to Sub-Chapter 6--Open Burning
a. Review of changes to ARM 17.8.601--Definitions: The State is
revising the definition of ``best available control technology (BACT)''
in ARM 17.8.601(1). As discussed in the review of changes to ARM
17.8.605 and 606, the State is revising the open burning rules to allow
the open burning of additional source categories year round. The
definition of BACT is being revised to indicate that BACT, for the
additional source categories, includes only burning during time periods
specified by the department, which may be determined by calling the
department. The State is also revising the definition of ``open
burning'' in ARM 17.8.601(7) to indicate that open burning does not
include the detonation of unexploded ordnance. We were originally
concerned that adding this exclusion to the definition might be
considered a SIP relaxation. However, the State has indicated that the
detonation of unexploded ordnance was never considered open burning,
because unexploded ordnance may pose an imminent threat to public
safety and health. Additionally, the detonation of unexploded ordnance
is also subject to permitting required under Montana's Hazardous Waste
Management Rules. Therefore, even though the detonation of unexploded
ordnance may not be subject to the open burning regulations it would
likely be subject to hazardous waste permitting requirements. Finally,
the State is making administrative changes to the definition of ``trade
wastes'' in ARM 17.8.601(10). We are proposing to approve these changes.
b. Review of changes to ARM 17.8.604--Materials Prohibited From
Open Burning: The State is revising ARM 17.8.604(1) to clarify the
material that may not be disposed of by open burning. We do not believe
the changes impact the stringency of the rule. However, with the
changes, the State is adding a department discretion provision.
Specifically, ARM 17.8.604(1)(a) indicates that waste moved from the
premises where is was generated may not be disposed of by open burning
except as provided by other provisions in the rule or ``or unless
approval is granted by the department on a case-by-case basis.'' The
phrase ``or unless approval is granted by the department on a case-by-
case basis'' is considered a department discretion. A department
discretion provision allows the Department to revise the SIP without
completing a formal SIP revision. We cannot approve department
discretion provisions because they are inconsistent with section 110(i)
of the Act. Therefore, we are proposing to approve the changes to ARM
17.8.604(1) except that we are proposing to disapprove the phrase ``or
unless approval is granted by the department on a case-by-case basis''
in ARM 17.8.604(1)(a).
c. Review of changes to ARM 17.8.605--Special Burning Periods: The
State is revising ARM 17.8.605(1) to add the following categories that
may burn during the entire year: conditional air quality open burning,
commercial film production open burning, Christmas tree waste open
burning, and any minor open burning that is not prohibited by ARM
17.8.604 or that is allowed by ARM 17.8.606. Initially we were
concerned that allowing the open burning during the entire year for
these additional categories would be considered a relaxation of the SIP
and could interfere with attainment of the national ambient air quality
standards (NAAQS) or reasonable further progress. The State explained
``that allowing open burning to take place during periods when it is
currently prohibited does not increase the total amount of burning that
takes place. The burning that is going to take place is merely spread
throughout the entire year. This reduces emissions during the fall and
spring. Allowing minor open burning to occur under favorable conditions
during the winter months will not endanger ambient air quality
standards since the burning would be allowed only at times and in
places where the ventilation is sufficient to protect ambient standards.''
Additionally, for conditional air quality open burning, commercial
film production open burning and Christmas tree waste open burning, the
states rules require that department only issue a permit under its
rules if the open burning will not cause or contribute to a violation
of the NAAQS and that the open burn conform to BACT (see ARM 17.8.612,
614 and 613, respectively). Among other things, BACT also requires that
these additional categories to only burn during the time periods
specified by the department (see ARM 17.8.601(1)). We are no longer
concerned that the changes to ARM 17.8.605(1) will jeopardize the NAAQS
and we are proposing to approve these changes.
d. Review of changes to ARM 17.8.606--Minor Open Burning Source
Requirements: The State is revising ARM 17.8.606(3) and (4) to clarify
that minor open burning sources need to call the department during
certain times of the year to determine if there are any burning
restrictions. We are proposing to approve these changes.
e. Review of changes to ARM 17.8.610--Major Open Burning Source
Restrictions: The State is making some minor editorial changes to ARM
17.8.610(4). We are proposing to approve these changes.
f. Review of changes to ARM 17.8.612--Conditional Air Quality Open
Burning Permits: The State is making changes to ARM 17.8.612(4) and (5)
to make the open burning requirements consistent with State and Federal
solid waste rules that regulate such burning. We are proposing to
approve these changes.
g. Review of changes to ARM 17.8.614--Commercial Film Production
Open Burning Permits: The State is making some minor editorial changes
to ARM 17.8.614(1). We are proposing to approve these changes.
2. Changes to Sub-Chapter 3--Emission Standards
a. Review of changes to ARM 17.8.302--Incorporation by Reference:
The State is revising ARM 17.8.302(f) to update a citation to a Federal
rule. We are proposing to approve these changes.
B. August 20, 2003 Submittal
1. Changes to Sub-Chapter 1--General Provisions.
a. Review of changes to ARM 17.8.101--Definitions: The State is
updating citations, making minor clerical amendments and eliminating
the duplication of statutory language in definitions by citing the
definition in the statute; in lieu of repeating
[[Page 43374]]
definitions that are contained in the statute, otherwise known as the
Montana Code Annotated (MCA), the State is referencing the definition
in the MCA. The definitions in ARM 17.8.101 that are being replaced
with a reference to the MCA, at this time, are the same. We were
originally concerned that the MCA could be revised and that in effect
would change the SIP without going through a formal SIP revision.
However, ARM 17.8.102--Incorporation by Reference--Publication Dates
and Availability of Referenced Documents--references the specific
edition (or date) of MCA that is referenced in the rules. As the MCA is
updated, the specific edition (or date) will also be updated in the
SIP. Updating the specific edition of the MCA is the mechanism that the
definitions in the SIP (in ARM 17.8.101) will be updated when the MCA
definitions are amended. We are including in the docket for this action
a copy of the section 75-2-103 of the MCA (2001 edition) to show the
definitions the State intended to be in the SIP with this submittal. We
will evaluate any changes to definitions when the State submits SIP
revisions that update the editions (or date) of the MCA in ARM
17.8.102. With this submittal, the State also deleted the definition
contained in ARM 17.8.101(43). The specific sections the State is
revising include: ARM 17.8.101(2), (8), (9), (12), (19), (20), (22),
(23), (30) and (36). We are proposing to approve these changes.
b. Review of changes to ARM 17.8.102--Incorporation by Reference--
Publication Dates and Availability of Referenced Documents: The State
is updating the date of referenced documents. We are proposing to
approve these changes.
c. Review of changes to ARM 17.8.103--Incorporation by Reference:
The State is updating citations, making wording consistent throughout
and changing the order of subsections to a more logical sequence in ARM
17.8.103(1). We are proposing to approve these changes.
d. Review of changes to ARM 17.8.106--Source Testing Protocol: The
State is making minor clerical amendments and revising the numbering to
conform to State requirements. We are proposing to approve these changes.
e. Review of changes to ARM 17.8.110--Malfunctions: The State is
deleting an outdated telephone number and making a minor clerical
correction in ARM 17.8.110(2). We are proposing to approve these changes.
2. Changes to Sub-Chapter 3--Emission Standards
a. Review of changes to ARM 17.8.302--Incorporation by Reference:
The State is updating citations, making wording consistent throughout
and changing the order of subsections to a more logical sequence in ARM
17.8.302(1). We are proposing to approve these changes.
3. Changes to Sub-Chapter 4--Stack Heights and Dispersion Techniques
a. Review of changes to ARM 17.8.401--Definitions: The State is
making minor clerical changes and revising the numbering to conform to
State requirements. We are not acting on these changes at this time for
the same reasons stated on our August 13, 2001 action (66 FR 42427 at
42434).
b. Review of changes to ARM 17.8.402--Requirements: The State is
making minor clerical changes. We are not acting on these changes at
this time for the same reasons stated on our August 13, 2001 action (66
FR 42427 at 42434).
4. Changes to Sub-Chapter 8--Prevention of Significant Deterioration of
Air Quality
a. Review of changes to ARM 17.8.801--Definitions: The State is
making minor clerical changes, updating citations and revising the
numbering to conform to State requirements. The specific sections the
State is revising include: ARM 17.8.801(1), (3), (4), (6), (20), (21),
(22), (24), (27) and (28). We are proposing to approve these changes.
b. Review of changes to ARM 17.8.802--Incorporation by Reference:
The State is updating citations, making wording consistent throughout
and changing the order of subsections to a more logical sequence in ARM
17.8.802(1). We are proposing to approve these changes.
c. Review of changes to ARM 17.8.818--Review of Major Stationary
Sources and Major Modifications---Source Applicability and Exemptions:
The State is updating citations in ARM 17.8.818(2), (3), and (6). We
are proposing to approve these changes.
d. Review of changes to ARM 17.8.819--Control Technology Review:
The State is updating a citation in ARM 17.8.819(3). We are proposing
to approve these changes.
e. Review of changes to ARM 17.8.821--Air Quality Models: The State
is updating citations. We are proposing to approve these changes.
5. Changes to Sub-Chapter 9--Permit Requirements for Major Stationary
Sources or Major Modifications Locating Within Nonattainment Areas
a. Review of changes to ARM 17.8.901--Definitions: The State is
making minor clerical changes, updating citations and revising the
numbering to conform to State requirements. The specific sections the
State is revising include: ARM 17.8.901(1), (11), (12) and (14). We are
proposing to approve these changes.
b. Review of changes to ARM 17.8.902--Incorporation by Reference:
The State is updating citations, making wording consistent throughout
and changing the order of subsections to a more logical sequence in ARM
17.8.902(1). We are proposing to approve these changes.
c. Review of changes to ARM 17.8.905--Additional Conditions of Air
Quality Preconstruction: The State is updating citations in ARM
17.8.905(1)(c). We are proposing to approve these changes.
6. Changes to Sub-Chapter 10--Preconstruction Permit Requirements for
Major Stationary Sources or Major Modifications Locating Within
Attainment or Unclassified Areas
a. Review of changes to ARM 17.8.1002--Incorporation by Reference:
The State is updating citations, making wording consistent throughout
and changing the order of subsections to a more logical sequence in ARM
17.8.1002(1). We are proposing to approve these changes.
IV. Announcement of NSPS Delegation
EPA is announcing that on January 9, 2004, pursuant to section
111(c) of the Act, we delegated the authority to the State of Montana
to implement and enforce the NSPS. The January 9, 2004 letter follows:
Ref: 8P-AR
Honorable Judy Martz, Governor of Montana, State Capitol, Helena,
Montana 59620-0801.
Dear Governor Martz: On August 20, 2003, 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,
2002 Code of Federal Regulations. This revision, in effect, updates
the citation of the incorporated Federal New Source Performance
Standards (NSPS) to July 1, 2002.
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
[[Page 43375]]
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, 2002. Note this
delegation does not include the emission guidelines in subparts Cb,
Cc, Cd, Ce, BBBB and DDDD. 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 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
August 20, 2003.
(I) Upon approval of the Regional Administrator of EPA Region
VIII, the Director of DEQ may subdelegate his/her 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 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 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. We can both be reached at (800) 227-8917.
Sincerely yours,
Robert E. Roberts,
Regional Administrator.
Enclosure.
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, 2002, 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).
[[Page 43376]]
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).
CCCC.............................. 60.2030(c) identifies authorities in
Subpart CCCC that cannot be
delegated to the State.
------------------------------------------------------------------------
V. Proposed Action
EPA is proposing to approve the following changes to the
Administrative Rules of Montana (ARM) that were submitted on April 18,
2003 and effective on December 27, 2002: ARM 17.8.302(f); 17.8.601(1),
(7) and (10); 17.8.604(1) (except the phrase in 604(1)(a) ``or unless
approval is granted by the department on a case-by-case basis'');
17.8.605(1); 17.8.606(3) and (4); 17.8.610(4); 17.8.612(4) and (5); and
17.8.614(1).
EPA is proposing to approve the following changes to the ARM that
were submitted on August 20, 2003 and effective on April 11, 2003: ARM
17.8.101(2), (8), (9), (12), (19), (20), (22), (23), (30) and (36);
17.8.102; 17.8.103(1); 17.8.106; 17.8.110(2); 17.8.302(1); 17.8.801(1),
(3), (4), (6), (20), (21), (22), (24), (27) and (28); 17.8.802(1);
17.8.818(2), (3) and (6); 17.8.819(3); 17.8.821; 17.8.901(1), (11),
(12) and (14); 17.8.902(1); 17.8.905(1)(c); and 17.8.1002(1). We are
also proposing to approve the deletion of the definition in ARM
17.8.101(43).
EPA is proposing to disapprove the following change to the ARM that
was submitted on April 18, 2003 and effective on December 27, 2002: the
phrase ``or unless approval is granted by the department on a case-by-
case basis'' in ARM 17.8.604(1)(a).
EPA is not acting on the following changes to the ARM that were
submitted on August 20, 2003 and effective on April 11, 2003: ARM
17.8.401 and 17.8.402. These revisions will be addressed in a separate
action.
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 that are the subject of this
document do not interfere with the maintenance of the NAAQS or any
other applicable requirement of the Act. The April 18, 2003 submittal
revises the open burning rules. However, as discussed earlier, we do
not believe the changes will impact the NAAQS. The August 20, 2003
submittal merely makes administrative amendments to the State's
Administrative Rules of Montana. Therefore, section 110(l) requirements
are satisfied.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
B. Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must
approve all ``collections of information'' by EPA. The Act defines
``collection of information'' as a requirement for ``answers to * * *
identical reporting or recordkeeping requirements imposed on ten or
more persons * * *'' 44 U.S.C. 3502(3)(A). Because this proposed rule
does not impose an information collection burden, the Paperwork
Reduction Act does not apply.
C. Regulatory Flexibility Act
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 proposed rule will not have a significant impact on a
substantial number of small entities because SIP approvals and
disapproval under section 110 and subchapter I, part D of the Clean Air
Act do not create any new requirements but simply approve or disapprove
requirements that the State is already imposing. Therefore, because the
Federal SIP approval/disapproval 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).
D. Unfunded Mandates Reform Act
Under sections 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
[[Page 43377]]
accompany any proposed or final rule that includes a Federal mandate
that 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 action proposed does 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 proposes to partially
approve and partially disapprove 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.
E. Executive Order 13132, Federalism
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 proposed 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 proposes to partially approve and partially
disapprove 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.
F. Executive Order 13175, Coordination With Indian Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 9, 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.'' This proposed rule does not
have tribal implications, as specified in Executive Order 13175. 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. This action does not involve or impose
any requirements that affect Indian tribes. Thus, Executive Order 13175
does not apply to this rule.
EPA specifically solicits additional comment on this proposed rule
from tribal officials.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
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.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
I. 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.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
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.
Authority: 42 U.S.C. 7401 et seq.
[[Page 43378]]
Dated: July 13, 2004.
Robert E. Roberts,
Regional Administrator, Region 8.
[FR Doc. 04-16448 Filed 7-19-04; 8:45 am]
BILLING CODE 6560-50-P