[Federal Register Volume 78, Number 92 (Monday, May 13, 2013)]
[Proposed Rules]
[Pages 27891-27898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-11293]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2011-0724; FRL-9812-9]
Promulgation of State Implementation Plan Revisions;
Infrastructure Requirements for the 1997 and 2006 PM2.5 National
Ambient Air Quality Standards; Montana
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to partially approve and partially disapprove
the State Implementation Plan (SIP) submission from the State of
Montana to demonstrate that the SIP meets the infrastructure
requirements for the 1997 and 2006 National Ambient Air Quality
Standards (NAAQS) for particulate matter less than or equal to 2.5
micrometers ([mu]m) in diameter (PM2.5). The Clean Air Act
(CAA) requires that each state, after a new or revised NAAQS is
promulgated, review their SIP to ensure that they meet infrastructure
requirements. The State of Montana submitted a certification of their
infrastructure SIP for the 1997 and 2006 PM2.5 NAAQS, dated
February 10, 2010. EPA does not propose to act in this notice on the
State's submissions to meet requirements relating to interstate
transport of air pollution for the 1997 and 2006 PM2.5
NAAQS. EPA will act on those submissions in a separate action.
DATES: Written comments must be received on or before June 12, 2013.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2011-0724, by one of the following methods:
http://www.regulations.gov. Follow the on-line
instructions for submitting comments.
Email: [email protected].
Fax: (303) 312-6064 (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
Mail: Director, Air Program, Environmental Protection
Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver,
Colorado 80202-1129.
Hand Delivery: Director, Air Program, Environmental
Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop
Street, Denver, Colorado 80202-1129. Such deliveries are only accepted
Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding federal
holidays. Special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2011-0724. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA, without going through www.regulations.gov your email
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
[[Page 27892]]
viruses. For additional information about EPA's public docket visit the
EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
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
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Air Program,
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129. 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, 8:00 a.m. to 4:00 p.m., excluding
federal holidays.
FOR FURTHER INFORMATION CONTACT: Kathy Ayala, Air Program, U.S.
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6142,
[email protected].
SUPPLEMENTARY INFORMATION:
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 initials AIRS mean or refer to national air quality
database.
(iii) The initials ARM mean or refer to Administrative Rules of
Montana.
(iv) The initials BACT mean or refer to best available control
technology.
(v) The initials BER mean of refer to Board of Environmental
Review.
(vi) The initials CBI mean or refer to confidential business
information.
(vii) The words or initials Department or DEQ mean or refer to
the Department of Environmental Quality.
(viii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
(ix) The initials EEAP mean or refer to Emergency Episode
Avoidance Plan.
(x) The initials FIP mean or refer to a Federal Implementation
Plan.
(xi) The initials GHG mean or refer to greenhouse gases.
(xii) The initials QAPPs mean or refer to Quality Assurance
Project Plans.
(xiii) The initials QA/QC mean or refer to quality assurance/
quality control.
(xiv) The initials LAER mean or refer to lowest achievable
emission rate.
(xv) The initials MCA mean or refer to Montana Code Annotated.
(xvi) The initials MT CAA mean or refer to the Clean Air Act of
Montana.
(xvii) The initials NAAQS mean or refer to national ambient air
quality standards.
(xviii) The initials NOX mean or refer to nitrogen oxides.
(xix) The initials NPRM mean or refer to notice of proposed
rulemaking.
(xx) The initials NSR mean or refer to new source review.
(xxi) The initials PM mean or refer to particulate matter.
(xxii) The initials PM2.5 mean or refer to particulate matter
with an aerodynamic diameter of less than 2.5 micrometers (fine
particulate matter).
(xxiii) The initials ppm mean or refer to parts per million.
(xxiv) The initials PSD mean or refer to Prevention of
Significant Deterioration.
(xxv) The initials SIP mean or refer to State Implementation
Plan.
(xxvi) The initials SOP mean or refer to Standard Operating
Procedures.
(xxvii) The initials SSM mean or refer to start-up, shutdown, or
malfunction.
Table of Contents
I. General Information
II. Background
III. What is the scope of this rulemaking?
IV. What infrastructure elements are required under sections
110(a)(1) and (2)?
V. How did Montana address the infrastructure elements of Sections
110(a)(1) and (2)?
VI. What action is EPA taking?
VII. Statutory and Executive Order Reviews
I. General Information
What should I consider as I prepare my comments for EPA?
1. Submitting Confidential Business Information (CBI). Do not
submit CBI to EPA through http://www.regulations.gov or email. Clearly
mark the part or all of the information that you claim to be CBI. For
CBI information on 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:
Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register, date, and page number);
Follow directions and organize your comments;
Explain why you agree or disagree;
Suggest alternatives and substitute language for your requested
changes;
Describe any assumptions and provide any technical information and/
or data that you used;
If you estimate potential costs or burdens, explain how you arrived
at your estimate in sufficient detail to allow for it to be reproduced;
Provide specific examples to illustrate your concerns, and suggest
alternatives;
Explain your views as clearly as possible, avoiding the use of
profanity or personal threats; and,
Make sure to submit your comments by the comment period deadline
identified.
II. Background
On July 18, 1997, EPA promulgated new NAAQS for PM2.5.
Two new PM2.5 standards were added, set at 15 [mu]g/m\3\,
based on the 3-year average of annual arithmetic mean PM2.5
concentration from single or multiple community-oriented monitors, and
65 [mu]g/m\3\, based on the 3-year average of the 98th percentile of
24-hour PM2.5 concentrations at each population-oriented
monitor within an area. In addition, the 24-hour PM10
standard was revised to be based on the 99th percentile of 24-hour
PM10 concentration at each monitor within an area (62 FR
38652).
On October 17, 2006 EPA promulgated a new NAAQS for
PM2.5, revising the level of the 24-hour PM2.5
standard to 35 [mu]g/m\3\ and retaining the level of the annual
PM2.5 standard at 15 [mu]g/m\3\. EPA also retained the 24-
hour PM10 and revoked the annual PM10 standard
(71 FR 61144). By statute, SIPs meeting the requirements of sections
110(a)(1) and (2) are to be submitted by states within three years
after promulgation of a new or revised standard. Section 110(a)(2)
provides basic requirements for SIPs, including emissions inventories,
monitoring, and modeling, to assure attainment and maintenance of the
standards. These requirements are set out in several ``infrastructure
elements,'' listed in section 110(a)(2).
Section 110(a) imposes the obligation upon states to make a SIP
submission to EPA for a new or revised NAAQS, and the contents of that
submission may vary depending upon the facts and circumstances. In
particular, the data and analytical tools available at the time
[[Page 27893]]
the state develops and submits the SIP for a new or revised NAAQS
affects the content of the submission. The contents of such SIP
submissions may also vary depending upon what provisions the state's
existing SIP already contains.
III. What is the scope of this rulemaking?
This rulemaking will not cover four substantive issues that are not
integral to acting on a state's infrastructure SIP submission: (i)
Existing provisions related to excess emissions during periods of
start-up, shutdown, or malfunction at sources, that may be contrary to
the CAA and EPA's policies addressing such excess emissions (``SSM'');
(ii) existing provisions related to ``director's variance'' or
``director's discretion'' that purport to permit revisions to SIP
approved emissions limits with limited public process or without
requiring further approval by EPA, that may be contrary to the CAA
(``director's discretion''); (iii) existing provisions for minor source
NSR programs that may be inconsistent with the requirements of the CAA
and EPA's regulations that pertain to such programs (``minor source
NSR''); and, (iv) existing provisions for PSD programs that may be
inconsistent with current requirements of EPA's ``Final NSR Improvement
Rule,'' 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526
(June 13, 2007) (``NSR Reform''). Instead, EPA has indicated that it
has other authority to address any such existing SIP defects in other
rulemakings, as appropriate. A detailed rationale for why these four
substantive issues are not part of the scope of infrastructure SIP
rulemakings can be found in EPA's July 13, 2011, final rule entitled,
``Infrastructure SIP Requirements for the 1997 8-hour Ozone and
PM2.5 National Ambient Air Quality Standards'' in the
section entitled, ``What is the scope of this final rulemaking?'' (see
76 FR 41075 at 41076-41079).
IV. What infrastructure elements are required under sections 110(a)(1)
and (2)?
Section 110(a)(1) provides the procedural and timing requirements
for SIP submissions after a new or revised NAAQS is promulgated.
Section 110(a)(2) lists specific elements the SIP must contain or
satisfy. These infrastructure elements include requirements such as
modeling, monitoring, and emissions inventories, which are designed to
assure attainment and maintenance of the NAAQS. The elements that are
the subject of this action are listed below.
110(a)(2)(A): Emission limits and other control measures.
110(a)(2)(B): Ambient air quality monitoring/data system.
110(a)(2)(C): Program for enforcement of control measures.
110(a)(2)(E)(i): Adequate resources and authority.
110(a)(2)(E)(ii): Compliance with CAA section 128
regarding state boards.
110(a)(2)(E)(iii): State responsibility for local
government implementation.
110(a)(2)(F): Stationary source monitoring and reporting.
110(a)(2)(G): Emergency powers.
110(a)(2)(H): Future SIP revisions.
110(a)(2)(J): Consultation with government officials;
public notification; and PSD and visibility protection.
110(a)(2)(K): Air quality modeling/data.
110(a)(2)(L): Permitting fees.
110(a)(2)(M): Consultation/participation by affected local
entities.
A detailed discussion of each of these elements is contained in the
next section.
Element 110(a)(2)(D), Interstate transport of pollutants from
Montana, which contribute significantly to nonattainment in, or
interfere with maintenance by, any other state will be acted upon in a
separate action.
Two elements identified in section 110(a)(2) are not governed by
the 3-year submission deadline of section 110(a)(1) and are therefore
not addressed in this action. These elements relate to part D of Title
I of the CAA, and submissions to satisfy them are not due within 3
years after promulgation of a new or revised NAAQS, but rather are due
at the same time nonattainment area plan requirements are due under
section 172. The two elements are: (i) Section 110(a)(2)(C) to the
extent it refers to permit programs (known as ``nonattainment new
source review (NSR)''), required under part D; and (ii) section
110(a)(2)(I), pertaining to the nonattainment planning requirements of
part D. As a result, this action does not address infrastructure
elements related to the nonattainment NSR portion of section
110(a)(2)(C) or related to 110(a)(2)(I).
V. How did Montana address the infrastructure elements of Sections
110(a)(1) and (2)?
1. Emission limits and other control measures: Section 110(a)(2)(A)
requires SIPs to include enforceable emission limitations and other
control measures, means, or techniques (including economic incentives
such as fees, marketable permits, and auctions of emissions rights), as
well as schedules and timetables for compliance as may be necessary or
appropriate to meet the applicable requirements of this Act.
a. Montana's response to this requirement: The State's submissions
for the 1997 and 2006 PM2.5 infrastructure requirements cite
Lincoln County Health and Environment Regulations approved by the BER
on March 23, 2006 and submitted for inclusion into the SIP on June 26,
2006. The Libby control plan was effective in maintaining ambient
PM2.5 concentrations at a level below both the annual and
revised 2006 24-hour PM2.5 NAAQS. On October 8, 2006, EPA
notified the State of Montana that the Libby area was in attainment
with the 2006 PM2.5 NAAQS.
In addition, to control plan implementation for the Libby area,
Montana implemented a statewide program for permitting major and minor
stationary sources of air pollution, including PM2.5.
Montana's permitting program(s) require affected sources to demonstrate
that source emissions will not cause or contribute to a violation of
the NAAQS. Affected sources are further required to utilize BACT and/or
LAER, as applicable, for emissions of regulated pollutants.
Montana also regulates major and minor open burning activities and
subjects those conducting open burning to BACT requirements.
Except for specific control measures adopted in BER orders, the
emission limits and other air pollution control regulations are
contained in the following subchapters of Title 17, Chapter 8, ARM:
Subchapter 1--General Provisions (60 FR 36715); Subchapter 3--Emission
Standards (44 FR 14036); Subchapter 4--Stack Heights and Dispersion
Techniques (60 FR 36715); Subchapter 6--Open Burning; Subchapter (60 FR
36715); Subchapter 7--Permit, Construction and Operation of Air
Contaminant Sources (60 FR 36715); Subchapter 8--Prevention of
Significant Deterioration of Air Quality (60 FR 36715); Subchapter 9--
Permit Requirements for Major Stationary Sources or Major Modifications
Locating within Nonattainment Areas (60 FR 36715); Subchapter 10--
Preconstruction Permit Requirements for Major Stationary Sources or
Major Modifications Locating within Attainment or Unclassified Areas
(60 FR 36715); and Subchapter 16--Emission Control Requirements for Oil
and Gas Well Facilities Operating Prior to Issuance of a Montana Air
Quality Permit.
b. EPA analysis: Montana's SIP meets the requirements of CAA
section 110(a)(2)(A) for the 1997 and 2006 PM2.5
[[Page 27894]]
NAAQS, subject to the following clarifications. First, this
infrastructure element does not require the submittal of regulations or
emission limitations developed specifically for attaining the 1997 and
2006 PM2.5 NAAQS. In Montana's case, we have approved an
attainment plan for Lincoln County, which was designated nonattainment
for the annual PM2.5 standard. Outside of the Lincoln County
PM2.5 attainment plan, Montana regulates emissions of
PM2.5 in two ways: (1) Through its SIP approved open burning
program; and (2) through its SIP approved major and minor source
permitting programs. This suffices to meet the requirements of
110(a)(2)(A) for the 1997 and 2006 PM2.5 NAAQS.
Second, in this action, EPA is not proposing to approve or
disapprove any existing state rules with regard to director's
discretion or variance provisions. A number of states have such
provisions that are contrary to the CAA and existing EPA guidance (52
FR 45109, November 24, 1987), and the Agency plans to take action in
the future to address such state regulations. In the meantime, EPA
encourages any state having a director's discretion or variance
provision which is contrary to the CAA and EPA guidance to take steps
to correct the deficiency as soon as possible.
Finally, in this action, EPA is also not proposing to approve or
disapprove any existing SIP provisions with regard to excess emissions
during startup, shutdown, or malfunction (SSM) of operations at a
facility. A number of states have SSM provisions which are contrary to
the CAA and existing EPA guidance \1\ and the Agency is addressing such
state regulations separately (78 FR 12460).
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\1\ Steven Herman, Assistant Administrator for Enforcement and
Compliance Assurance, and Robert Perciasepe, Assistant Administrator
for Air and Radiation. Memorandum to EPA Air Division Directors,
``State Implementation Plans (SIPs): Policy Regarding Excess
Emissions During Malfunctions, Startup, and Shutdown.'' (September
20, 1999).
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2. Ambient air quality monitoring/data system: Section 110(a)(2)(B)
requires SIPs to provide for establishment and operation of appropriate
devices, methods, systems, and procedures necessary to ``(i) monitor,
compile, and analyze data on ambient air quality, and (ii) upon
request, make such data available to the Administrator.''
a. Montana's response to this requirement: The State's submissions
for the 1997 and 2006 PM2.5 infrastructure requirements cite
a statewide air quality monitoring network operated by the Department,
including numerous monitoring activities dedicated specifically to
PM2.5.
On an annual basis, the Department evaluates trends in industrial
and economic development, meteorology, and population growth and makes
other scientific, social, and geographic observations regarding areas
of the State which may be adversely affected by emissions of air
pollutants, including PM2.5. The Department, with
participation and input by local county air pollution control agencies
and other interested parties, makes informed decisions regarding the
type, location, and schedules for monitoring various air quality
parameters, including PM2.5. The product of this decision-
making process, the Air Monitoring Network Plan, is made available for
public inspection and the Department annually submits the final
document to EPA.
All of the Department's ambient air monitoring operations and
resultant data is subject to strict QA/QC processes. The Department
employs a variety of QAPPs, and SOPs to maintain the highest level of
data quality. The Department's air monitoring and data handling QAPPs
and SOPs are routinely submitted to EPA for review and approval. The
air monitoring data resulting from these rigorous QA/QC processes is
uploaded and stored in EPA's AIRS for further review and analysis.
The provisions in State law for the collection and analysis of
ambient air quality data is contained in the MT CAA, 75-2-101 et seq.,
MCA, Powers and Responsibilities of Department.
b. EPA analysis: Montana's air monitoring programs and data systems
meet the requirements of CAA section 110(a)(2)(B) for the 1997 and 2006
PM2.5 NAAQS. The 2012 Montana Annual Monitoring Network Plan
(AMNP), dated July 10, 2012, was approved by EPA Region 8 on April 8,
2013.
3. Program for enforcement of control measures: Section
110(a)(2)(C) requires SIPs to include a program to provide for the
enforcement of the measures described in subparagraph (A), and
regulation of the modification and construction of any stationary
source within the areas covered by the plan as necessary to assure that
NAAQS are achieved, including a permit program as required in parts C
and D.
a. Montana's response to this requirement: The State's submissions
for the 1997 and 2006 PM2.5 infrastructure requirements cite
Montana's administrative rules which authorize enforcement activities
sufficient to ensure enforceable emission control measures are
implemented to protect the NAAQs.
Congress directed states to develop and implement measures to
prevent significant deterioration. Pursuant to ARM 17.8.130 (71 FR
3770), sources subject to the provisions of Title 17, Chapter 8,
subchapters 8 (60 FR 36715), 9 (60 FR 36715), and 10 (60 FR 36715), ARM
(regulating construction of new or modified major stationary sources
consistent with PSD and NSR requirements) shall be subject to
enforcement. The Department is authorized to issue a notice of
violation, complaint regarding the source violation, and an order to
take corrective action.
The provisions in state law for the enforcement of emission
limitations and other control measures, means, or techniques are
contained in the MT CAA, 75-2-101 et seq., MCA, and specifically, 75-2-
111, MCA, Powers of the Board and 75-2-112, MCA, Powers and
Responsibilities of Department.
b. EPA analysis: To generally meet the requirements of section
110(a)(2)(C), the State is required to have SIP-approved PSD,
nonattainment NSR, and minor NSR permitting programs adequate to
implement the 1997 and 2006 PM2.5 NAAQS. As explained above,
in this action EPA is not evaluating nonattainment related provisions,
such as the nonattainment NSR program required by part D of the Act. In
this action, EPA is evaluating the State's PSD program as required by
part C of the Act, and the State's minor NSR program as required by
110(a)(2)(C).
Montana has a SIP-approved PSD program that generally meets the
requirements of part C of the Act. However, in order for the State's
SIP approved PSD program to satisfy the requirements of section
110(a)(2)(C) for the 1997 and 2006 PM2.5 NAAQS, the program
must meet all requirements of part C of Title I of the Act, including
proper regulation of ozone precursors. On November 29, 2005, EPA
promulgated the phase 2 implementation rule for the 1997 ozone NAAQS,
which includes requirements for PSD programs to treat nitrogen oxides
as a precursor for ozone (70 FR 71612). The State's approved PSD
program does not satisfy the requirements of the phase 2 implementation
rule. Furthermore, the State has not submitted a revision to the
program to address this deficiency.\2\ As
[[Page 27895]]
a result, the SIP does not satisfy, for the 1997 and 2006
PM2.5 NAAQS, the requirement of element 110(a)(2)(C) for the
SIP to include a permit program as required in part C of Title I of the
Act. EPA therefore proposes to disapprove the Montana infrastructure
SIP for the 1997 and 2006 PM2.5 NAAQS for this requirement.
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\2\ The State did submit a SIP revision to address the
requirements of the phase 2 ozone implementation rule for the
State's nonattainment NSR program. As discussed above, the
nonattainment NSR program is outside the scope of this
infrastructure SIP action. We understand that the state has
promulgated a rule that may satisfy this requirement and we will
propose action on that SIP revision when it is submitted.
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Turning to minor NSR, EPA is proposing to approve Montana's
infrastructure SIP for the 1997 and 2006 PM2.5 NAAQS with
respect to the general requirement in section 110(a)(2)(C) to include a
program in the SIP that regulates the modification and construction of
any stationary source as necessary to assure that the NAAQS are
achieved, specifically the PM2.5 NAAQS. (See ARM Chapter
17.8, Subchapter 7.) The SIP approved minor NSR program addresses
PM2.5, as any facility required to obtain a permit must
demonstrate that it will not cause or contribute to a violation of any
NAAQS. (See ARM 17.8.749(3).) EPA is not proposing to approve or
disapprove the State's existing minor NSR program itself to the extent
that it is inconsistent with EPA's regulations governing this program.
A number of states may have minor NSR provisions that are contrary to
the existing EPA regulations for this program. EPA intends to work with
states to reconcile state minor NSR programs with EPA's regulatory
provisions for the program. The statutory requirements of section
110(a)(2)(C) provide for considerable flexibility in designing minor
NSR programs, and it may be time to revisit the regulatory requirements
for this program to give the states an appropriate level of flexibility
to design a program that meets their particular air quality concerns,
while assuring reasonable consistency across the country in protecting
the NAAQS with respect to new and modified minor sources.
4. Adequate resources and local and regional government: Section
110(a)(2)(E) requires states to provide:
(i) necessary assurances that the State * * * will have adequate
personnel, funding, and authority under State * * * law to carry out
the SIP (and is not prohibited by any provision of Federal or State
law from carrying out [the SIP] or portion thereof) * * *
(iii) necessary assurances that, where the state has relied upon
a local or regional government, agency, or instrumentality for the
implementation of any plan provision, the state has responsibility
for ensuring adequate implementation of such plan provision.
a. Montana's response to this requirement: According to the State's
submissions for the 1997 and 2006 PM2.5 infrastructure
requirements, no state or federal provisions prohibit the
implementation of any provision of the Montana SIP. Montana devotes
adequate resources to SIP development and maintenance sufficient to
ensure attainment and maintenance of the NAAQS.
The Department receives grant monies from EPA intended to fund
programs to protect the NAAQS. The Department allocates a portion of
the EPA grant money to fund SIP activities for attainment and
maintenance of the NAAQS. In addition, Montana imposes and collects
fees from permitted sources. Montana allocates a portion of the permit
fee revenue to activities associated with permitting and compliance for
sources of regulated air pollutants, including PM2.5
emissions. Montana also receives state general funds to conduct state
air quality program activities. Montana allocates a portion of state
general funding to non-permit air program activities, including SIP
programs for attainment and maintenance of the NAAQS.
The Air Resources Management Bureau has 50 fulltime equivalent
positions with an annual budget of $6.3 million for fiscal year 2010.
The program funding is broken down as follows: $163,536 from state
general funds, $1,643,940 from Federal grants, and $4,546,047 from
stationary source fees.
The provisions in state law which describe adequate implementation
of local or regional implementation of any plan provision are provided
in MCA 75-2-112, Power and Responsibilities of Department.
The provisions in state law providing for adequate resources are
contained in the MT CAA, 75-2-101 et seq., MCA. More specifically,
those provisions are contained in 75-2-102, MCA, Intent--Policy and
Purpose; 75-2-111, MCA, Powers of the Board and 75-2-112, MCA, Powers
and Responsibilities of Department.
b. EPA Analysis: The provisions contained in 75-2-102, MCA, 75-2-
111, MCA, and 75-2-112, MCA, provide adequate authority for the State
of Montana and the DEQ to carry out its SIP obligations with respect to
the 1997 and 2006 PM2.5 NAAQS. The State receives sections
103 and 105 grant funds through its Performance Partnership Grant along
with required state matching funds to provide funding necessary to
carry out Montana's SIP requirements. EPA therefore proposes to approve
the Montana infrastructure SIP with regard to the requirements of
section 110(a)(2)(E)(i) and (iii) for the 1997 and 2006
PM2.5 NAAQS.
5. State boards: Section 110(a)(2)(E)(ii) requires that ``the State
comply with the requirements respecting State boards under section
128.''
a. Montana's response to this requirement: The Montana BER adopts
regulations and the Montana DEQ implements and enforces those
regulations, including those of the state air program. The composition
and requirements of the BER are detailed in 2-15-3502, MCA, 2-15-121,
MCA, and 2-15-124, MCA. Laws related to conflict of interest in Montana
state government are found in 2-2-201, MCA, and 2-2-202, MCA. None of
these Montana statutes are subject to approval by the federal
government.
b. EPA Analysis: The Montana SIP does not contain provisions that
meet the requirements of CAA section 128. Section 128 must be
implemented through SIP-approved, federally enforceable provisions. In
particular, subsection 128(a)(2) requires that all SIPs must contain
provisions for the adequate disclosure of potential conflicts of
interest. The Montana SIP does not currently contain any such
provisions and is deficient with respect to the requirements of
subsection 128(a)(2).
Furthermore, section 2-15-3502 of the Montana Code creates a Board
of Environmental Review (``Board''). The Board consists of seven
members appointed by the Governor and meeting certain statutory
criteria. Under 75-2-211(10), MCA, a person who is directly and
adversely affected by the Montana DEQ's approval or denial of a permit
to construct an air pollution source may (with certain exceptions)
request a hearing before the Board. Similarly, under section 75-2-
218(5) of the Montana Code, a person who participated in the comment
period on DEQ's issuance, renewal, amendment or modification of a title
V operating permit may request a hearing before the Board. Finally,
under 75-2-201(1), MCA, a person who receives an enforcement order from
DEQ under Chapter 2 of Title 75, Air Quality, may request a hearing
before the Board.
Based on these State statutory provisions and our discussion above
of the text of section 128(a)(1), we propose to conclude that the Board
falls within the terms of subsection 128(a)(1). The Board is a multi-
member body that has authority to approve permits and enforcement
orders under the Act. The
[[Page 27896]]
term ``permits under the Act'' includes PSD, nonattainment NSR, and
minor NSR permits. These are all permits required to construct a new or
modified stationary source, and, under 75-2-211(1), MCA, are
potentially subject to a hearing before the Board. Permits under the
Act also includes title V operating permits, which, under 75-2-218(5),
MCA, are potentially subject to a hearing before the Board. Similarly,
enforcement orders under the Act are, under Montana Code section 75-2-
201(1), potentially subject to a hearing before the Board. In short,
the Board has authority to hear appeals of permits and enforcement
orders under the Act.
The Board's authority to hear appeals is ``authority to approve''
within the meaning of section 128, for two reasons. First, the Board's
authority falls within the plain meaning of the word ``approve.'' To
approve means, among other things, ``to give formal sanction to.'' This
is precisely what, for example, an order from the Board upholding a
permit does: It formally sanctions the permit. Second, the contrary
interpretation, that ``authority to approve'' does not include the
Board's authority to hear appeals, would be inconsistent with the
structure and purpose of section 128. It would limit the applicability
of subsection 128(a)(1) to multi-member boards that issue permits in
the first instance. As the purpose of section 128 is to promote
disinterested decision-making on permits and enforcement orders, it is
paramount that section 128 should apply to the entity with authority to
make the final decision, and not merely to the initial decision maker.
In addition, due to the language ``with similar powers'' in subsection
128(a)(2), the contrary interpretation would lead to the illogical
result that a state director who issues permits and enforcement orders
that are subject to administrative appeal would fall under the
disclosure requirement, but a director that was the final decision
maker on permits and enforcement orders would not.
As the Board has authority to approve permits and enforcement
orders under the Act, it is subject to subsection 128(a)(1). However,
the Montana SIP does not currently contain any provisions to meet the
requirements of subsection 128(a)(1) and is therefore deficient for
this requirement.
Based on these deficiencies in the Montana SIP, we propose to
disapprove Montana's infrastructure SIP for this element. We do not
consider it necessary to identify any particular instances in which the
Board's actual composition in practice has failed to meet the
compositional requirements of subsection 128(a)(1) or in which Board
members in practice have failed to meet the disclosure requirements of
subsection 128(a)(2). The deficiency is in the Montana SIP itself,
which simply fails to contain any provisions meeting the explicit legal
requirements of these subsections. As a result, we propose to
disapprove this element of the State's infrastructure SIP.
6. Stationary source monitoring system: Section 110(a)(2)(F)
requires:
(i) the installation, maintenance, and replacement of equipment,
and the implementation of other necessary steps, by owners or
operators of stationary sources to monitor emissions from such
sources;
(ii) periodic reports on the nature and amounts of emissions and
emissions-related data from such sources; and
(iii) correlation of such reports by the State agency with any
emission limitations or standards established pursuant to [the Act],
which reports shall be available at reasonable times for public
inspection.
a. Montana's response to this requirement: The State's submissions
for the 1997 and 2006 PM2.5 infrastructure requirements cite
three State Rules: ARM 17.8.105 (66 FR 42427); ARM 17.8.106 (66 FR
42427); and ARM 17.8.505 (State only rule).
Montana's administrative rules authorize the Department to require
monitoring of emissions from stationary sources and annual submissions
of all information necessary to complete a source emissions inventory.
Affected permits require emissions monitoring from stationary sources
of air pollution, including PM emissions. Further, on an annual basis,
the Department compiles a state emissions inventory of all regulated
sources for the evaluation of compliance with applicable standards and
inclusion in EPA databases.
b. EPA Analysis: The provisions cited by Montana (ARM 17.8.105 and
17.8.106) pertain to testing requirements and protocols. Montana also
incorporates by reference 40 CFR part 51, appendix P, regarding minimum
monitoring requirements. (See ARM 17.8.103(1)(D)). In addition, Montana
provides for monitoring, recordkeeping, and reporting requirements for
sources subject to minor and major source permitting. EPA therefore
proposes to approve Montana's infrastructure SIP with regard to the
requirements of section 110(a)(2)(F) for the 1997 and 2006
PM2.5 NAAQS.
7. Emergency powers: Section 110(a)(2)(G) requires states to
provide for authority to address activities causing imminent and
substantial endangerment to public health, including contingency plans
to implement the emergency episode provisions in their SIPs.
a. Montana's response to this requirement: The State's submissions
for the 1997 and 2006 PM2.5 infrastructure requirements cite
EPA approved Montana's Emergency Episode Avoidance Plan (EEAP) in 71 FR
19, January 3, 2006. Montana's EEAP made provision for emergency
control of all criteria pollutants. Under authority granted by the 75-
2-402, MCA, and the Montana EEAP, the Department may order sources of
pollution to limit or cease emissions. The MT CAA is not subject to
approval by EPA.
b. EPA analysis: Section 75-2-402 of the MCA provides the
Department with general emergency authority comparable to that in
section 303 of the Act. EPA last approved revisions to the EEAP on
January 3, 2006 (71 FR 19). The SIP therefore meets the requirements of
110(a)(2)(G) for the 1997 and 2006 PM2.5 NAAQS.
8. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs
provide for revision of such plan:
(i) from time to time as may be necessary to take account of
revisions of such national primary or secondary ambient air quality
standard or the availability of improved or more expeditious methods
of attaining such standard; and
(ii) except as provided in paragraph (3)(C), whenever the
Administrator finds on the basis of information available to the
Administrator that the [SIP] is substantially inadequate to attain
the [NAAQS] which it implements or to otherwise comply with any
additional requirements established under this [Act].
a. Montana's response to this requirement: The State's submissions
for the 1997 and 2006 PM2.5 infrastructure requirements cite
provisions in state law providing for adoption of rules and regulations
contained in the MT CAA, 75-2-101 et seq., MCA. More specifically,
those provisions are contained in 75-2-102, MCA, Intent--Policy and
Purpose; 75-2-111, MCA, Powers of the Board, and 75-2-112, MCA, Powers
and Responsibilities of Department.
The MT CAA invests in the BER the authority to adopt, amend, and
repeal rules for administering, implementing, and enforcing rules
promulgated to regulate emissions of air pollutants, including rules
necessary to establish measures to attain and maintain the NAAQS. The
Governor submits for inclusion into the SIP rules determined to be
necessary to attain and maintain the NAAQS.
b. EPA analysis: Montana's statutory provisions in the Montana CAA
at 75-2-101 et seq., give the BER sufficient
[[Page 27897]]
authority to meet the requirements of 110(a)(2)(H).
9. Consultation with government officials, public notification, PSD
and visibility protection: Section 110(a)(2)(J) requires that each SIP
``meet the applicable requirements of section 121 of this title
(relating to consultation), section 127 of this title (relating to
public notification), and part C of this subchapter (relating to [PSD]
of air quality and visibility protection).''
a. Montana's response to this requirement: The State's submissions
for the 1997 and 2006 PM2.5 infrastructure requirements cite
the State Implementation Plan for Columbia Falls PM10
Nonattainment Area which was approved by EPA on April 14, 1994 (59 FR
17700). Montana has not changed or revoked consultation processes since
that time. Montana holds public meetings and hearings on all SIP
revisions in accordance with 40 CFR 51, appendix V and Montana's open
meeting laws 2-2-203, MCA.
On January 3, 2006, EPA approved Montana's EEAP at 71 FR 19.
Montana's EEAP provides for all criteria pollutants, including PM. The
EEAP contains provisions for disseminating information regarding an
exceedance of the NAAQS to appropriate news media, health officials,
law enforcement, and others. The Department notice includes
recommendations for actions citizens may take to reduce the impact of
their activities. Montana also complies with 40 CFR 51.930 during
exceptional events.
Congress directed states to develop and implement measures to
prevent significant deterioration of air quality pursuant to 42 U.S.C.
7471. Montana adopted permitting requirements for major sources
proposing to modify or construct, PSD rules in subchapter 8 (60 FR
36715), and nonattainment NSR rules in subchapter 9 (60 FR 36715) and
10 (60 FR 36715) of Title 17, Chapter 8, ARM. Montana continues to
implement and enforce these rules. Montana consults with Federal Land
Managers as needed and/or required.
The EPA promulgated a Federal Implementation Plan (FIP), which
became final on September 18, 2012 (77 FR 57864), to address regional
haze requirements for the State of Montana.
b. EPA Analysis: The State has demonstrated that it has the
authority and rules in place to provide a process of consultation with
general purpose local governments, designated organizations of elected
officials of local governments and any Federal Land Manager having
authority over federal land to which the SIP applies, consistent with
the requirements of CAA section 121. Furthermore, Montana's EEAP,
approved into the SIP, meets the general requirements of CAA section
127.
Turning to the requirement in section 110(a)(2)(J) that the SIP
meet the applicable requirements of part C of title I of the Act, EPA
has evaluated this requirement in the context of infrastructure element
(C) in section IV.3 above. As discussed there, EPA proposes to
disapprove Montana's infrastructure SIP for the requirement in
110(a)(2)(C) that the SIP include a permit program as required in part
C, on the basis that Montana's SIP-approved PSD program does not
properly regulate nitrogen oxides as an ozone precursor. For the same
reason, EPA proposes to disapprove Montana's infrastructure SIP with
regard to the requirement in section 110(a)(2)(J) that the SIP meet the
applicable requirements of part C of title I the Act.
Finally, with regard to the applicable requirements for visibility
protection, EPA recognizes that states are subject to visibility and
regional haze program requirements under part C of the Act. In the
event of the establishment of a new NAAQS, however, the visibility and
regional haze program requirements under part C do not change. Thus, we
find that there is no new visibility obligation ``triggered'' under
section 110(a)(2)(J) when a new NAAQS becomes effective.
We propose to find that the Montana SIP meets the requirements of
section 110(a)(2)(J) for the 1997 and 2006 PM2.5 NAAQS with
regard to sections 121 and 127 of the Act, and does not meet the
requirements of section 110(a)(2)(J) for the 1997 and 2006
PM2.5 NAAQS with regard to meeting the applicable
requirements of part C relating to PSD.
10. Air quality and modeling/data: Section 110(a)(2)(K) requires
that each SIP provide for:
(i) the performance of such air quality modeling as the
Administrator may prescribe for the purpose of predicting the effect
on ambient air quality of any emissions of any air pollutant for
which the Administrator has established a [NAAQS]; and
(ii) the submission, upon request, of data related to such air
quality modeling to the Administrator.
a. Montana's response to this requirement: The State's submissions
for the 1997 and 2006 PM2.5 infrastructure requirements cite
Title 17, Chapter 8, subchapters 7 (60 FR 3615), 8 (60 FR 36715), 9 (60
FR 36715), and 10 (60 FR 36715), ARM (regulating construction of new or
modified major stationary sources consistent with PSD and NSR
requirements). Sources subject to these provisions shall demonstrate
the facility can be expected to operate in compliance with applicable
law and that it will not cause or contribute to a violation of any
NAAQS.
Absent any privacy restrictions regarding the release of
proprietary business information, all preconstruction data and analysis
regarding the results of source predictive modeling for purposes of
NAAQS compliance is public information available for anyone, including
EPA, to review upon request.
b. EPA Analysis: Montana's SIP meets the requirements of CAA
section 110(a)(2)(K) for the 1997 and 2006 PM2.5 NAAQS. In
particular, Montana's approved PSD program (see ARM 17.8.821(1))
requires estimates of ambient air concentrations to be based on the
applicable air quality models, databases, and other requirements
specified in appendix W of 40 CFR part 51, pertaining to the Guidelines
on Air Quality Models. As a result, the SIP provides for such air
quality modeling as the Administrator has prescribed with respect to
the SIP outside of the nonattainment context.
11. Permitting fees: Section 110(a)(2)(L) directs SIPs to:
Require the owner or operator of each major stationary source to
pay to the permitting authority, as a condition of any permit
required under this act, a fee sufficient to cover--
(i) the reasonable costs of reviewing and acting upon any
application for such a permit, and
(ii) if the owner or operator receives a permit for such source,
the reasonable costs of implementing and enforcing the terms and
conditions of any such permit (not including any court costs or
other costs associated with any enforcement action), until such fee
requirement is superseded with respect to such sources by the
Administrator's approval of a fee program under [title] V * * *
a. Montana's response to this requirement: The State's submissions
for the 1997 and 2006 PM2.5 infrastructure requirements cite
an approved Title V permitting program. Montana requires an applicant
proposing to construct or modify an air pollution source to pay an
application fee, ARM 17.8.504 (State rule only). Sources must also pay
an annual operation fee, ARM 17.8.505 (State rule only).
b. EPA Analysis: Montana's approved title V operating permit
program meets the requirements of CAA section 110(a)(2)(L) for the 1997
and 2006 PM2.5 NAAQS. As discussed in the Direct Final Rule
approving the State's title V program (65 FR 37049, June 13, 2000), the
State demonstrated that the fees collected were sufficient to
administer the program.
[[Page 27898]]
12. Consultation/participation by affected local entities: Section
110(a)(2)(M) requires states to provide for consultation and
participation in SIP development by local political subdivisions
affected by the SIP.
a. Montana's response to this requirement: The State's submissions
for the 1997 and 2006 PM2.5 infrastructure requirements cite
Section 75-2-112(2)(j) of the MT CAA which requires the Department to
``. . . advise, consult, contract, and cooperate with other agencies of
the state, local governments, industries, other states, interstate and
interlocal agencies, the United States, and any interested persons or
groups; . . .''
As a matter of practice, the Department consults with the local
agencies when nec . . . essary to implement a control plan for a
nonattainment area. The Department also meets with county/local air
pollution control program staff and discusses monitoring issues,
including monitoring for PM2.5, prior to making decisions
regarding monitoring needs, monitor type, locations, and monitoring
schedules.
Parties affected by Department actions, including local political
subdivisions, may petition the BER for a hearing and address of their
grievances, see ARM 17.8.140 (66 FR 42427), 17.8.141 (66 FR 42427), and
17.8.142 (66 FR 42427).
b. EPA Analysis: Montana's submittal meets the requirements of CAA
section 110(a)(2)(M) for the 1997 and 2006 PM2.5 NAAQS.
VI. What action is EPA taking?
In this action, EPA is proposing to approve the following
infrastructure elements for the 1997 and 2006 PM2.5 NAAQS:
(A), (C) with respect to the requirement to have a minor NSR program
that addresses PM2.5; (E)(i), (E)(iii), (F), (G), (H), (J)
with respect to the requirements of sections 121 and 127, (K), (L), and
(M). EPA is proposing to disapprove the following infrastructure
elements for the 1997 and 2006 PM2.5 NAAQS: (E)(ii)
concerning requirements for state boards under section 128; and
elements (C) and (J) with respect to the requirement to have a PSD
program that meets the requirements of part C of Title I of the Act.
Finally, in this action, EPA is taking no action on infrastructure
element (D) for the 1997 and 2006 PM2.5 NAAQS as that
element will be acted on separately.
VII. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves some state law as meeting federal
requirements and disapproves other state law because it does not meet
federal requirements; this proposed action does not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
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);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999); is not an
economically significant regulatory action based on health or safety
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on Tribal governments or preempt Tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Greenhouse gases, Lead, Nitrogen dioxide,
Ozone, Particulate matter, Reporting and recordkeeping requirements,
Sulfur oxides, Volatile organic compounds.
Dated: May 2, 2013.
Howard M. Cantor,
Acting Regional Administrator, Region 8.
[FR Doc. 2013-11293 Filed 5-10-13; 8:45 am]
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